United States Court of Appeals

for the Fifth Circuit ____________

No. 22-50536

____________

Vote.Org, 

Plaintiff—Appellee, 

versus

Jacquelyn Callanen; Et al.,

Defendants, 

versus

Ken Paxton, In His Official Capacity as the Attorney General of Texas; 

Lupe C. Torres, In His Official Capacity as the Medina County Elections 

Administrator; Terrie Pendley, In Her Official Capacity as the Real 

County Tax Assessor-Collector, 

Intervenor Defendants—Appellants. 

______________________________

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 5:21-CV-649

______________________________

Before Barksdale, Southwick, and Higginson, Circuit Judges.

Leslie H. Southwick, Circuit Judge: 

A non-profit organization whose stated mission is to simplify voting 

brought suit against four county election officials in Texas. It alleged that a 

United States Court of Appeals

Fifth Circuit

FILED

December 15, 2023

Lyle W. Cayce

Clerk

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2

Texas law requiring an original signature on a voter registration form violates 

the Civil Rights Act of 1964 and the First and Fourteenth Amendments’ ban 

on imposing undue burdens on the right to vote. The Texas requirement

frustrated use of the organization’s smartphone app that allows for digitized 

signatures only. The Attorney General of Texas intervened and has been the 

party actively defending the law. The district court granted summary 

judgment in favor of the organization. We REVERSE and RENDER.

FACTUAL AND PROCEDURAL BACKGROUND

As is standard in the United States, an individual in Texas must 

register to vote before casting a ballot. To register, applicants “must submit 

an application to the registrar of the county in which the person resides.” 

TEX. ELEC. CODE § 13.002(a). That “application must be in writing and 

signed by the applicant.” § 13.002(b). 

The application form is available both online and at government 

offices designated as “voter registration agencies,” such as the Department 

of Public Safety and public libraries. §§ 20.001, 20.031. The Secretary of 

State and county registrars will also, upon request, mail applicants a postagepaid application form. 

Texans have several ways to submit their applications. They can 

submit the application by personal delivery or United States mail directly to 

the county registrar. § 13.002(a). Voter registration agencies are also 

required to accept registration applications and deliver them to the county 

registrar. §§ 20.001, 20.035. Moreover, counties may appoint “volunteer 

deputy registrars” to distribute and accept applications on the county 

registrar’s behalf. §§ 13.031, 13.038, 13.041. If an applicant submits an 

incomplete voter registration application, then the county registrar will notify 

the applicant and allow ten days to cure the deficiency. § 13.073. 

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Once an application form is received, the county registrar reviews it 

to ensure the necessary information, including a signature, is present. Upon 

confirming completeness of the form, registrars generally scan or enter the 

applicants’ information in their computer system and save images of the 

signatures. Some counties then destroy the original applications. The 

applicants’information is electronically transmitted to the office of the Texas

Secretary of State. The Secretary’s office processes these applications if the 

essential information — such as a person’s last name, date of birth, and social 

security number — is accurate.

In 2013, the Texas Legislature enacted Senate Bill 910, which allows 

individuals to transmit voter registration forms by facsimile, i.e., a fax, if they

then, within four days, deliver or mail a hardcopy of the application. 

§§ 13.002(a), 13.143(d-2). When applicants use this method, the effective 

date of registration is the day of the fax transmissions. § 13.143(d)(2). 

The plaintiff, Vote.org, developed a smartphone application, or 

“app,” that it argues allows Texans to satisfy all enforceable voter 

registration requirements online. In an earlier decision that granted a stay of 

the district court’s injunction, this court described Vote.org as “a non-profit, 

non-membership organization that seeks to simplify and streamline political 

engagement by, for example, facilitating voter registration.” Vote.Org v. 

Callanen, 39 F.4th 297, 301 (5th Cir. 2022). The organization works to 

support low-propensity voters, including racial and ethnic minorities and 

younger voters. The app prompts applicants for information and auto-fills it 

onto the voter registration form. To sign the form, applicants sign a piece of 

paper, take a photo of it, and upload the photo to the app. The app then

affixes the signature onto the registration form and transmits the form to two 

third-party vendors: one that sends the form to the county registrar via fax 

and another that mails a paper copy of the application to the county registrar. 

Id. at 301.

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In 2018, Vote.org began its registration efforts in Bexar, Cameron, 

Dallas, and Travis counties. Id. at 301. After some technical problems were 

resolved, over 2,000 Texans registered to vote using the app. In October 

2018, the Texas Secretary of State issued a press release stating that “[a]ny 

web site that misleadingly claims to assist voters in registering to vote online 

by simply submitting a digital signature is not authorized to do so.” After 

this statement, Vote.org shut off its app.

In mid-June 2021, the Texas Governor signed House Bill 3107, which 

clarified that applicants using the fax option must subsequently mail a paper 

application to the registrar that “contain[s] the voter’s original signature.” 

§ 13.143(d-2). The parties refer to this as the “Wet Signature Rule,” and we

also will at times even though “original signature” seems clear enough. The 

Secretary’s Rule 30(b)(6) designee explained in his deposition that the 

impetus behind the 2021 statute was “Vote.org’s misreading of [the 

signature requirement] in 2018.” 

In July 2021, Vote.org sued voter registrars in four counties under 42 

U.S.C. § 1983, seeking to enjoin Section 13.143(d-2)’ssignature requirement. 

Vote.org alleged a violation of federal rights established in the Civil Rights 

Act of 1964, specifically that the right to vote shall not be denied due to 

immaterial errors or omissions on any record relating to registration or other

voting requirements. 52 U.S.C. § 10101(a)(2).

1 Also alleged was that 

_____________________

1 The defendants’ briefing usually cites this key statute as “Section 1971,” a former 

section of Title 42; the plaintiff cites to 52 U.S.C. § 10101. The conflicting cites illustrate 

that the location of statutes in the U.S. Code can change. “The responsibility for creating 

and maintaining the Code has always been lodged in various locations within the House of 

Representatives.” Will Tress, Lost Laws: What We Can’t Find in the United States Code, 

40 GOLDEN GATE U. L. REV. 129, 143 (2010). The first official compilations were in 1873 

and 1878, enacted by Congress and called the Revised Statutes. Id. at 134–35. 

Controversies over those compilations may have delayed any new ones until the first 

United States Code was published in 1926; beginning in 1934, there has been a new official 

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requiring an original signature unduly burdens the right to vote in violation 

of the First and Fourteenth Amendments. In September 2021, the district 

court granted motions to intervene as defendants filed by the Texas Attorney 

General and the voter registrars of two additional counties. 

After discovery, the defendants and Vote.org filed competing motions 

for summary judgment. The district court granted Vote.org’s motion. 

Vote.org v. Callanen, 609 F. Supp. 3d 515, 540 (W.D. Tex. 2022). The court 

concluded that requiring an original signature violates Section 10101 of Title 

52 because such a signature is not “material” to an individual’s qualifications 

to vote. Id. at 527–32. The court also determined that the requirement 

unduly burdens the right to vote in violation of the First and Fourteenth 

Amendments. Id. at 532–39. The court permanently enjoined the defendants 

from enforcing the Wet Signature Rule. Id. at 540. The original defendants 

did not appeal. The only briefing from an appellant is by the Attorney 

General as intervenor. Consequently, we will refer to the appellants as Texas 

or the State.

_____________________

edition of the Code every six years. Id. at 135–37 & 137 n.42 (citing 1 U.S.C. § 202(c)). In 

the 1934, 1940, and 1946 Codes, the then-sole section of this key statute was in the Code 

title for “Aliens and Citizenship” or “Aliens and Nationality” as 8 U.S.C. § 31 (1934, 1940, 

1946). What is now 42 U.S.C. § 1983 was also in that title: 8 U.S.C. § 43 (1934, 1940, 1946). 

In the 1952 Code, the sections were recodified in the title for “Public Health and Welfare” 

as 42 U.S.C. § 1971 and § 1983 (1952). See 1952 Code at 713–14 (explaining omissions, 

repeals, and transfers of Title 8 sections to other titles).

In 1974, the Office of the Law Revision Counsel of the House of Representatives

was created and became responsible for codification. Pub. L. No. 93-554, Title I, ch. III, § 

101, Dec. 27, 1974, 88 Stat. 1777, codified as 2 U.S.C. § 285–285g. “In 2014, provisions 

relating to voting and elections were transferred in the United States Code from titles 2 and 

42 into a new Title 52, Voting and Elections.” Office of the Law Revision Counsel, United 

States Code, Editorial Reclassification, Title 52, United States Code, found at 

https://uscode.house.gov/editorialreclassification/t52/index.html. Section 1971 became 

52 U.S.C. § 10101. Id. (link to chart of transferred provisions). Section 1983, a broadlyapplicable civil rights statute, was not transferred. Of course, we cite the current Code.

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A motions panel of this court granted a stay of the injunction pending 

resolution of the appeal. Vote.org, 39 F.4th at 309. That panel held that all 

the factors for a stay, including likelihood of success on the merits by the 

appellants, had been satisfied. Id. at 308–09. This motions panel decision 

does not bind us as a merits panel. Veasey v. Abbott, 870 F.3d 387, 392 (5th 

Cir. 2017). We have, though, examined that opinion closely and respectfully.

DISCUSSION

We review the grant of summary judgment de novo. Nationwide Mut.

Ins. Co. v. Baptist, 762 F.3d 447, 449 (5th Cir. 2014). Summary judgment is 

proper when “there is no genuine dispute as to any material fact.” FED. R.

CIV. P. 56(a). In reviewing the record, “the court must draw all reasonable 

inferences in favor of the nonmoving party, and it may not make credibility 

determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., 

Inc., 530 U.S. 133, 150 (2000).

Texas argues the district court erred in its analysis of Article III

standing, of the relevant section of the Civil Rights Act of 1964, and of the 

First and Fourteenth Amendments. We address these issues in that order. 

I. Article III standing 

The parties briefed the issues of both Vote.org’s possible 

organizational standing and its third-party standing. We start with a 

discussion of organizational standing.

We examine standing de novo. United States v. $500,000.00 in U.S. 

Currency, 591 F.3d 402, 404 (5th Cir. 2009). Associational standing is 

derivative of an organization’s members. OCA-Greater Houston v. Texas, 867 

F.3d 604, 610 (5th Cir. 2017). Because Vote.org is a non-membership 

organization, it can assert only organizational standing. The requirements 

for organizational standing mirror those for individual plaintiffs. Association

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of Cmty. Org. for Reform Now v. Fowler, 178 F.3d 350, 356 (5th Cir. 1999). An 

organization must demonstrate that (1) it suffered an injury in fact; (2) the 

injury is “fairly traceable to the challenged action of the defendant”; and (3) 

it is “likely, as opposed to merely speculative, that the injury will be redressed 

by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–

61 (1992) (citation omitted).

We first review whether Vote.org satisfies each of those requirements

for organizational standing in a general sense, i.e., without analyzing whether 

it has standing to bring this suit under Section 1983. That analysis will 

determine whether Vote.org has suffered an injury to itself that would be 

redressed if the suit were successful. We then analyze third-party standing 

to see if Vote.org can sue on behalf of prospective voters. Finally, we analyze

whether Vote.org can bring its claims via Section 1983. 

a. Injury in fact 

Organizations can satisfy injury-in-fact for standing under two 

theories: associational standing and organizational standing. OCA-Greater 

Houston, 867 F.3d at 610. “An organization suffers an injury in fact if a 

defendant’s actions ‘perceptibly impair[]’ the organization’s activities and 

consequently drain the organization’s resources.” El Paso Cnty. v. Trump, 

982 F.3d 332, 343 (5th Cir. 2020) (quoting Havens Realty Corp. v. Coleman, 

455 U.S. 363, 379 (1982)). A “setback to [an] organization’s abstract social 

interests” is insufficient. Havens, 455 U.S. at 379. “[A]n organization may 

establish injury in fact by showing that it had diverted significant resources to 

counteract the defendant’s conduct.” N.A.A.C.P. v. City of Kyle, 626 F.3d 

233, 238 (5th Cir. 2010).

Vote.org contends that, as a result of the Wet Signature Rule, it is no 

longer able to make use of its app and “has been diverting its limited 

resources to less effective (and less efficient) means of increasing turnout and 

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political engagement.” Vote.org’s CEO testified that the Wet Signature 

Rule caused it to shut down its app and impaired the organization’s “ability 

to reach voters” and “to get people . . . to participate in elections.” 

Moreover, because of the shutdown and concomitant drain on resources, 

Vote.org was “not [] able to do some of [the] innovative work” it pursues in 

other states, such as programs at historically black colleges and universities, 

other college programs, youth influencer programs, corporate organizing 

activities, and advocating for election day as a holiday. Indeed, Vote.org’s 

CEO testified that the Wet Signature Rule took up significant staff time and 

resources across its engineering, partnership, and operations teams that 

could have been spent on other efforts. Vote.org contends this is enough to 

prove it has suffered an injury in fact.

Texas argues that organizational standing cannot be premised on 

“routine” responses to allegedly unlawful conduct. That concept originated

in City of Kyle. There, we concluded that plaintiff home-builders associations

had not shown how their response to certain ordinances “differ from [the 

home building associations’] routine lobbying activities.” Id. at 238. We did 

not hold that resources spent on routine activities were necessarily irrelevant 

to the existence of standing, and our ultimate holding did not rely on that 

consideration. We held that plaintiffs lacked standing after faulting them for 

merely “conjectur[ing] that the resources that the HBA had devoted to the 

revised ordinances could have been spent on other unspecified HBA 

activities.” Id. at 239. 

Texas also relies on a precedent in which a community organization 

sought standing to challenge federal expenditures on a border wall. El Paso 

Cnty., 982 F.3d at 336–37, 344. We found that record to be unclear as to 

whether the community organization’s responses to border-wall 

construction “fall within the general ambit of its normal operations.” Id. at 

344. The organization’s lack of standing was also based on its inability to 

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establish traceability and its reliance on a “single vague, conclusory assertion 

that the organization had to divert resources.” Id.

The evidence here on diversion of resources is more detailed than in 

either City of Kyle or El Paso County. Vote.org has presented more than 

conjecture or a “conclusory assertion.” It has provided substantial evidence

that, because of the requirement for original signatures, it had to expend 

additional time beyond the routine activities of multiple departments and 

divert resources away from “particular projects.” El Paso Cnty., 982 F.3d at 

344. That diversion “perceptibly impaired” Vote.org’s ability to pursue its 

mission. Havens, 455 U.S. at 379. 

b. Traceability 

“An organization cannot obtain standing to sue in its own right as a 

result of self-inflicted injuries, i.e., those that are not ‘fairly traceable to the 

actions of the defendant.’” Association of Cmty. Orgs. for Reform Now v. 

Fowler, 178 F.3d 350, 358 (5th Cir. 1999) (quoting Bennett v. Spear, 520 U.S. 

154, 162 (1997)). If an organizational plaintiff is asserting an injury caused by 

a need to divert its resources and actions, it must show that the change 

“result[ed] from counteracting the effects of the defendant’s actions.” 

Louisiana ACORN Fair Hous. v. LeBlanc, 211 F.3d 298, 305 (5th Cir. 2000). 

Any diversion must be a specific response to the challenged law or action. It

is not fairly traceable to defendants if the diversion responded not only to the 

defendants’ conduct but also to other forces. Texas State LULAC v. Elfant, 

52 F.4th 248, 254 (5th Cir. 2022). 

Vote.org’s injury includes the continuing bar to the use of its app. The 

shutdown of the app was a “direct result of the challenged law.” Id. at 254. 

As the Secretary’s Rule 30(b)(6) designee explained, the “particular 

genesis” of the Wet Signature Rule was Vote.org’s app. Moreover, several 

county registrars testified they would accept applications using Vote.org’s 

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app if not for the Wet Signature Rule. It is the shutdown of the app, of course, 

that produced the diversion of resources described earlier. 

Vote.org has met the traceability requirement. Texas does not 

challenge the redressability element of standing. Regardless, that 

requirement is plainly met. Relief from the requirement of original signatures 

on voter registration forms would allowVote.org to offer its application again.

We thus conclude that Vote.org has organizational standing to seek 

redress for its own alleged injuries.

c. Third-party standing 

Even though we hold that Vote.org has a traceable injury redressable 

in litigation, its complaint asserts that the Wet Signature Rule violates the 

federal statutory and constitutional rights of voters. 

Certainly, Vote.org itself is not a Texas voter. A party ordinarily may 

assert only “his own legal rights and interests, and cannot rest his claim to 

relief on the legal rights or interests of third parties.” Warth v. Seldin, 422 

U.S. 490, 499 (1975). This is a prudential rule, though, not a constitutional 

one. In re Deepwater Horizon, 857 F.3d 246, 252 (5th Cir. 2017). We examine 

the possibility of third-party standing to assert claims of voters. 

1. Sufficiency of relationship between Vote.org and 

voters

Vote.org sued under Section 1983 because of alleged violations of 

voters’ rights under the Constitution and Section 10101. A necessary 

premise for the following analysis is that voters themselves have a right to 

bring such a suit. We will consider the validity of that premise later.

Third-party standing often turns on “categorized relationships” —

e.g., vendor-vendee, doctor-patient, employer-employee. 13A WRIGHT &

MILLER, FEDERAL PRACTICE AND PROCEDURE § 3531.9.3 (3d ed. 2022). 

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Such standing “has become firmly established with respect to a number of 

easily categorized relationships. Vendors are routinely accorded standing to 

assert the constitutional rights of customers and prospective customers.” Id. 

This treatise reached that conclusion after discussing a Supreme Court 

opinion invalidating a state law prohibiting beer vendors from selling to 

females under the age of 18 or to males under the age of 21. Id. (discussing 

Craig v. Boren, 429 U.S. 190, 195 (1976)). The initially underage plaintiffs 

aged out before the Supreme Court considered the appeal, but the Court 

allowed the case to proceed because the plaintiff beer vendor could 

reasonably assert the claims of prospective beer purchasers, as well as its own

claims. Craig, 429 U.S. at 195. “[V]endors and those in like positions have 

been uniformly permitted to resist efforts at restricting their operations by 

acting as advocates for the rights of third parties who seek access to their 

market or function.” WRIGHT & MILLER, FEDERAL PRACTICE § 3531.9.3

(quotation marks, citation, and alterations omitted); see also Maryland Shall 

Issue, Inc. v. Hogan, 971 F.3d 199, 216 (4th Cir. 2020) (collecting cases). 

We end where we began. Third-party standing is a prudential

consideration. Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 

947, 956 (1984). Judicial self-restraint is warranted to avoid making 

“unnecessary pronouncement[s] on constitutional issues” and “premature 

interpretations of statues.” Id. at 955 (citation omitted). On the other hand, 

where a party can ensure that “issues . . . will be concrete and sharply 

presented,” prudential concerns are less salient. Id. On these facts, 

Vote.org’s position as a vendor and voting rights organization is sufficient to 

confer third-party standing. 

To complete our multi-part examination of standing, we analyze 

whether Vote.org, as a non-voter asserting violations of voting rights, has a 

claim under Section 1983.

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2. Third-party claims via Section 1983

Section 1983 specifies that those acting under color of state law who 

subject “any citizen of the United States or other person within the 

jurisdiction thereof to the deprivation of any rights, privileges, or immunities 

secured by the Constitution and laws, shall be liable to the party injured.” 

42 U.S.C. § 1983 (emphasis added). The claim here is that voters have been 

deprived of their rights under the Constitution and Section 10101, and that 

Vote.org itself has been injured. 

Texas asserts that Section 1983’s reference to “party injured” 

encompasses only the party “depriv[ed]” of its rights, not someone seeking 

to vindicate another’srights. Section 1983 plaintiffs, though, often have been 

allowed to vindicate the rights of others. We offer a few examples. A

bookseller was allowed to vindicate the First Amendment rights of book 

buyers under Section 1983. Virginia v. American Booksellers Ass’n, 484 U.S. 

383, 392–93 (1988). In Craig, a vendor invoked Section 1983 to assert the 

Fourteenth Amendment equal protection rights of its customers. 429 U.S. 

at 195; see Walker v. Hall, 399 F. Supp. 1304, 1306 (W.D. Okla. 1975), rev’d 

sub nom. Craig v. Boren, 429 U.S. 190 (confirming Craig was a 1983 action).

Finally, this court permitted a Section 1983 suit for a business that was 

asserting the First Amendment rights of its employees and customers. Hang 

On, Inc. v. City of Arlington, 65 F.3d 1248, 1251–52 (5th Cir. 1995).

Section 1983 is an appropriate vehicle for third-party claims. 

II. Voting Rights Section of the 1964 Civil Rights Act and Section 1983 

The parties dispute whether Section 10101 creates a private right of 

action. They also dispute whether, even if a private right of action were created, it could be enforced using Section 1983. We discuss both disputes. 

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a. Private right enforceable under Section 1983

The section on voting in the 1964 Civil Rights Act2 established what 

is often called the Materiality Provision. That provision prohibits denying 

the right to vote because of minor errors or omissions: 

No person acting under color of law shall . . . deny the right of 

any individual to vote in any election because of an error or 

omission on any record or paper relating to any application, 

registration, or other act requisite to voting, if such error or 

omission is not material in determining whether such 

individual is qualified under State law to vote in such election.

52 U.S.C. § 10101(a)(2)(B). Section 10101 does not explicitly grant 

individuals the right to bring suit. The only explicit right to sue is the one 

granted to the Attorney General. § 10101(c). 

A private cause of action may still be implied when a statute (1) 

contains rights-creating language and (2) displays “an intent to create a 

private remedy.” Gonzaga Univ. v. Doe, 536 U.S. 273, 284 (2002); Alexander 

v. Sandoval, 532 U.S. 275, 286 (2001). If “a plaintiff demonstrates that a 

statute confers an individual right, the right is presumptively enforceable by 

§ 1983.” Gonzaga, 536 U.S. at 284. 

1. Rights-creating language

The first requirement is met when “the provision in question is 

phrased in terms of the persons benefitted” or has “an unmistakable focus 

on the benefited class.” Health & Hosp. Corp. of Marion Cnty. v. Talevski, 599

_____________________

2 The more detailed and significant contemporaneous legislation on voting was the 

1965 Voting Rights Act. Pub. L. No. 89-110, 79 Stat. 437 (1965). It is not involved in this 

litigation except to the extent of our relying by analogy on caselaw under that Act.

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U.S. 166, 183 (2023) (quotation marks and citation omitted). There is strong 

“rights-creating” language in the first section of the statute:

All citizens of the United States who are otherwise qualified by 

law . . . , shall be entitled and allowed to vote at all such 

elections, without distinction of race, color, or previous

condition of servitude; any constitution, law, custom, usage, or 

regulation of any State or Territory, or by or under its 

authority, to the contrary notwithstanding.

52 U.S.C. § 10101(a)(1). That statutory language has existed since 1870; it 

was the entirety of the section until the Civil Rights Act of 1957. Act of May 

31, 1870, ch. 114, § 1, 16 Stat. 140; see Historical and Statutory Notes, 

Codifications, 42 U.S.C.A. § 1971 (2012), at 145 (now 52 U.S.C.§ 10101). 

Several courts held there was a private right under the original section, 

though they were not using the much later Gonzaga test. Indeed, “from the 

enactment of § 1983 in 1871 until 1957, plaintiffs could and did enforce the 

provisions of § 1971 [now, § 10101] under § 1983.” Schwier v. Cox, 340 F.3d 

1284, 1295 (11th Cir. 2003) (collecting cases). One example of a suit brought 

by private plaintiffs under the pre-1957 statute concerned the refusal of local 

officials to allow a black man to vote. See Smith v. Allwright, 321 U.S. 649, 

650–51 (1944). The plaintiff claimed that actions of local officials “violate 

Sections 31 and 43 of Title 8 of the United States Code,” id., which are now 

Section 10101 and Section 1983. Two other examples are from this court. In 

each, we held that a private party had a right to seek relief when the original 

1870 language was the entirety of the statute. See Reddix v. Lucky, 252 F.2d 

930, 931, 934 (5th Cir. 1958) (alleged violations occurred in 1956, before the 

1957 amendment); Chapman v. King, 154 F.2d 460 (5th Cir. 1946) (private 

suit allowed). 

In 1964, Congress added the Materiality Provision to what is now 

Section 10101. Civil Rights Act of 1964, Pub. L. No. 88-352, § 101, 78 Stat. 

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241. That amendment added language that also is written in terms of rights: 

“No person acting under color of law shall . . . deny the right of any individual

to vote in any election because of an error or omission,” etc. 52 U.S.C. 

§ 10101(a)(2)(B) (emphasis added). The new provision, subsection 

(a)(2)(B), identifies a specific means of denying the rights described in 

subsection (a)(1). We do not see that the focus on rights of Section 10101(a) 

is distorted by the enactment of a specific prohibition.

The phrasing of the Materiality Provision is similar to language the 

Court has held to confer a private right.3

 See Gonzaga, 536 U.S. at 284 & n.3. 

Moreover, the Materiality Provision neither has an “aggregate focus” nor 

does it “speak only in terms of institutional policy and practice.” Id. at 288. 

It is true that the subject of the Materiality Provision is the regulating official

— “no person acting under color of law,” 52 U.S.C. § 10101(a)(2)(B) — not 

the person regulated by state law. The Supreme Court recently stated, 

though, that “it would be strange to hold that a statutory provision fails to 

secure rights simply because it considers, alongside the rights bearers, the 

actors that might threaten those rights (and we have never so held).” 

Talevski, 599 U.S. at 185. We agree with the Eleventh Circuit that, although 

“[t]he subject of the sentence is the person acting under color of state 

law, . . . the focus of the text is nonetheless the protection of each individual’s 

right to vote.” Schwier, 340 F.3d at 1296. Further, the Materiality 

_____________________

3 For example, the Federal Nursing Home Reform Act provides that “nursing 

facilit[ies]” must “protect and promote” residents’ “right to be free from . . . any physical 

or chemical restraints imposed for purposes of discipline or convenience and not required 

to treat the resident’s medical symptoms.” 42 U.S.C. § 1396r(c)(1)(A)(ii). It also requires 

“nursing facilit[ies]” to “not transfer or discharge [a] resident” unless certain enumerated 

preconditions are met. § 1396(c)(2)(A). The Supreme Court recently held that these 

provisions confer a private right. Talevski, 599 U.S. at 184–86. 

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Provision’s language is decidedly more rights-focused than language the 

Court has held not to confer a private right.4 

We conclude that Sections 10101(a)(1) and 10101(a)(2)(B) both confer 

an individual right.

2. Congressional intent to create a private remedy

“Once a plaintiff demonstrates that a statute confers an individual 

right, the right is presumptively enforceable by § 1983.” Gonzaga, 536 U.S. 

at 284. Nonetheless, even when “a statutory provision unambiguously 

secures rights, a defendant ‘may defeat t[he] presumption by demonstrating 

that Congress did not intend’ that § 1983 be available to enforce those 

rights.” Talevski, 599 U.S. at 186 (quoting Rancho Palos Verdes v. Abrams, 

544 U.S. 113, 120 (2005) (alterations omitted)). Different phrasing appears 

in Gonzaga: rebutting the presumption requires “showing that Congress 

specifically foreclosed a remedy under § 1983.” Gonzaga, 536 U.S. at 284 

n.4 (quotation marks and citation omitted). 

In looking for rebuttal evidence, we explore a little more statutory 

history. In 1957, Congress amended the Civil Rights Act, granting 

enforcement power to the Attorney General of the United States. Civil 

Rights Act of 1957, Pub. L. No. 85-315, § 131, 71 Stat. 634, 637 (1957). The 

_____________________

4 The Supreme Court held there was no private right in the Family Educations 

Rights and Privacy Act, which provides: “No funds shall be made available under any 

applicable program to any educational agency or institution which has a policy or practice 

of permitting the release of education records . . . of students without the written consent 

of their parents to any individual, agency, or organization.” Gonzaga, 536 U.S. at 279

(quoting 20 U.S.C. § 1232g(b)(1)). 

The Supreme Court also held Section 602 of the Civil Rights Act contained no 

rights-creating language because the statute “focuses neither on the individuals protected 

nor even on the funding recipients being regulated, but on the agencies that will do the 

regulating.” Sandoval, 532 U.S. at 289. 

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amendment’s text does not mention private actions. The argument is that 

by explicitly granting authority to the Attorney General to enforce the Act, 

private rights were implicitly withdrawn. We will examine the validity of that 

argument after explaining a few more details.

The 1957 amendment also added what is now 52 U.S.C. § 10101(d), 

which provides that all actions brought “pursuant to this section” can be 

exercised “without regard to whether the party aggrieved shall have 

exhausted administrative or other remedies that may be provided by law.” 

Civil Rights Act of 1957, Pub. L. No. 85-315, § 131(d), 71 Stat. 637. Critically 

in our analysis of whether granting enforcement authority had the effect of 

cancelling the private remedy, the “party aggrieved” reference is unlikely to 

refer to the Attorney General. The House Report on the 1957 Act cites and 

discusses court opinions in which exhaustion of remedies had been required 

for private plaintiffs. H.R. Rep. No. 85-291 (1957), 10–11, reprinted in 11984 

U.S. CONG. SERIAL SET (1957). The Eleventh Circuit found it to be illogical 

for Congress to have eliminated exhaustion requirements for private 

plaintiffs unless there were a corresponding private right. Schwier, 340 F.3d 

at 1296. We interpret these 1957 amendments as augmenting the implied but 

established private right to sue with an explicit right in the Attorney General.

We find no explicit foreclosure of a remedy under Section 1983. To 

avoid recognition of a private right, the “defendant must show that Congress 

issued the same command implicitly, by creating ‘a comprehensive 

enforcement scheme that is incompatible with individual enforcement under

§ 1983.’” Talevski, 599 U.S. at 186 (quoting Rancho Palos Verdes, 544 U.S. at 

120)). Thus, we examine the enforcement scheme.

Several subsections of the statute detail the Attorney General’s 

authority. 52 U.S.C. § 10101(c)–(e). These elaborate statutory explanations 

of how enforcement by the Attorney General is to proceed certainly seem to 

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us to qualify as a “comprehensive scheme.” Regardless of how 

comprehensive it is, though, use of Section 1983 is foreclosed only when the 

scheme is “incompatible” or “inconsistent” with Section 1983 enforcement. 

Talevski, 599 U.S. at 187. Of course, the first part of what is now Section 

10101 was routinely enforced through Section 1983. See Schwier, 340 F.3d at

1295. That means there is a long history of compatibility between at least parts 

of Section 10101 and Section 1983 that predates the addition of the Attorney 

General enforcement in 1957. The details of the Attorney General’s

enforcement scheme create no conflicts with private suits under Section 

1983.

Besides an incompatible enforcement regime, the Court has also 

explained that “the existence of a more restrictive private remedy for 

statutory violations” than what Section 1983 allows creates “the dividing line 

between those cases in which we have held that an action would lie under 

§1983 and those in which we have held that it would not.” Rancho Palos 

Verdes, 544 U.S. at 121 (emphasis added). Section 10101 lacks any specific 

“private judicial right of action” or “private federal administrative remedy” 

that requires plaintiffs to comply with particular procedures. Talevski, 599 

U.S. at 190. Thus, this exception to using Section 1983 is inapplicable.

With our review of the Supreme Court’s relevant guidance behind us, 

we examine what other circuits have determined. Two circuits have held that 

the Materiality Provision creates a private right enforceable under Section 

1983. See Migliori v. Cohen, 36 F.4th 153, 159 (3d Cir. 2022), cert. granted, 

judgment vacated sub nom. Ritter v. Migliori, 143 S. Ct. 297 (2022); Schwier, 

340 F.3d at 1297. A third held that the Materiality Provision “is enforceable 

by the Attorney General, not private citizens.” McKay v. Thompson, 226 F.3d 

752, 756 (6th Cir. 2000). We find no other circuit court to have addressed 

the issue. We will discuss all three opinions.

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We have discussed Schwier to some extent already.

5 The components 

of the Eleventh Circuit’s analysis included reliance on the caselaw allowing 

private suits under the pre-1957 version of this statute. Schwier, 340 F.3d at 

1295. The court held that exhaustion of remedies would be irrelevant to 

Attorney General enforcement of the statute, yet the same amendment that 

added Attorney General enforcement to a statute that had for decades been 

used by private plaintiffs also made clear exhaustion was not required; 

exhaustion is irrelevant except as to private suits. Id. at 1296. That analysis 

is sound.

Undermined by later caselaw is the Schnier’s reliance on Allen v. State 

Board of Elections, 393 U.S. 544 (1969). Id. at 1294–95. Allen involved 

whether there was a private cause of action under Section 5 of the 1965 Voting 

Rights Act. Allen, 393 U.S. at 548. That section limited the right of States to 

change voting prerequisites. Id. The Court in Allen “reasoned that the goals 

of the statute were much more likely to be reached if private citizens were not 

‘required to depend solely on litigation instituted at the discretion of the 

Attorney General.’” Schwier, 340 F.3d at 1294–95 (quoting Allen, 393 U.S. 

at 556). 

Almost five decades after Allen and one decade after Schwier, the

Supreme Court declared that Allen and precedents like it too readily implied 

a cause of action in statutes and had largely lost their force because “the 

Court adopted a far more cautious course.” Ziglar v. Abassi, 582 U.S. 120, 

_____________________

5 In its first opinion, the Eleventh Circuit provided extensive analysis for its 

conclusion that there was a private right, then remanded to the district court for further 

proceedings because the district court had gone no further than holding there was no

private right. Schwier, 340 F.3d at 1297. When the case returned to the circuit court, it said 

it would “affirm the district court’s judgment for the reasons stated in the district court’s 

memorandum opinion.” Schwier v. Cox, 439 F.3d 1285, 1286 (11th Cir. 2006) (citing 

Schwier v. Cox, 412 F. Supp. 2d 1266 (N.D. Ga. 2005)).

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132 (2017). Instead, the key was whether there was congressional intent to 

create a private right. Id. at 133 (citing Sandoval, 532 U.S. at 286). 

Regardless of the reliance on Allen, the Schwier court properly applied 

Sandoval and Gonzaga and identified the rights-creating language in what are

now Sections 10101(a)(1) and (a)(2)(B). Schwier, 340 F.3d at 1296. The 

rights created “are specific and not amorphous,” i.e., they protect the right 

to vote when some immaterial information is not provided. Id. at 1296–97. 

The language of the Materiality Provision is also mandatory: “No person 

acting under color of law shall . . . deny the right of any individual to vote.” 

Id. (quoting what is now Section 10101(a)(2)(B)). Those points, plus the 

reference to not needing to exhaust administrative remedies in the same 

amendment that added Attorney General enforcement powers, make a 

strong case for finding congressional intent to allow a private remedy.

The Third Circuit also held that the Materiality Provision created a 

private right presumably enforceable under Section 1983. See Migliori, 36 

F.4th at 159.6 “To rebut the presumption, a defendant must point to either 

specific evidence from the statute itself or a comprehensive enforcement 

scheme that is incompatible with individual enforcement under § 1983.” Id. 

at 160 (quotation marks and citation omitted). The court found no evidence 

in the text of the statute to rebut the presumption nor a “comprehensive 

enforcement scheme that is incompatible with individual enforcement under 

§ 1983.” Id. We agree with those conclusions.

The Sixth Circuit was the first circuit court to analyze whether there 

was a private right under the Materiality Provision, and it held there was not. 

See McKay, 226 F.3d at 756. This is the entirety of that court’s analysis:

_____________________

6 The Supreme Court vacated Migliori and remanded to the Third Circuit with 

instructions to dismiss the case as moot. Migliori, 143 S. Ct. at 297–98. 

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The district court correctly dismissed this claim for lack of 

standing. Section 1971 is enforceable by the Attorney General, 

not by private citizens. See 42 U.S.C. § 1971(c); Willing v. Lake 

Orion Community Sch. Bd. of Trustees, 924 F. Supp. 815, 820 

(E.D. Mich. 1996).

Id. 

Obviously, the Sixth Circuit considered the silence in the statutory 

language and the analysis of the cited district court to be sufficient. The cited 

district court opinion said little more than the Sixth Circuit did: “Section 

1971 is intended to prevent racial discrimination at the polls and is 

enforceable by the Attorney General, not by private citizens.” Willing, 924 

F. Supp. at 820. In addition to the statutory language, the Willing court cited 

Good v. Roy, 459 F. Supp. 403, 405 (D. Kan. 1978). Id. That case was not 

even about the Materiality Provision, but it did refer to the statutory language 

that Section 1971 was to be enforced by the Attorney General. Good, 459 F.

Supp. at 405. Neither the Sixth Circuit nor these two district courts wrestled 

with the considerations for implying a private right. Moreover, McKay 

predates the 2001 Sandoval opinion and the 2002 Gonzaga opinion. 

We conclude that private enforcement via Section 1983 does not 

thwart Congress’s enforcement scheme. Vote.org can seek a remedy for 

Section 10101 violations by way of Section 1983. 

Finally — does Vote.org’s claim have merit? 

III. Merits of the Materiality Provision claim

Though we earlier quoted the Materiality Provision, we quote again

for ready reference:

No person acting under color of law shall . . . 

deny the right of any individual to vote in any election 

because of an error or omission on any record or paper 

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relating to any application, registration, or other act 

requisite to voting, if such error or omission is not 

material in determining whether such individual is 

qualified under State law to vote in such election.

52 U.S.C. § 10101(a)(2)(B). 

We need to interpret that provision. Statutory definitions often get us 

started. We have no such assistance, though, as the core term of “material”

is not defined. The most-used legal dictionary gives this definition: “Of such 

a nature that knowledge of the item would affect a person’s decision-making: 

significant; essential.” Material, BLACK’S LAW DICTIONARY (8th ed. 2004). 

A more comprehensive dictionary has this definition: “Of serious or 

substantial import; significant, important, of consequence.” Material, 

OXFORD ENGLISH DICTIONARY, III.6.a. (July 2023). We reject “essential” 

as a reasonable meaning, but the rest of the variations seem about right.

There is not much caselaw applying this provision. To some degree, 

then, we must set our own course. Should a district court, with some level of 

deferential review on appeal, decide as a de novo factual, legal, or mixed legalfactual question, whether a particular statutory provision is material in 

determining if a person is qualified to vote? Or, is some weight given to 

legislative judgment, which is not controlling perhaps but at least meaningful 

to some degree? 

There is a constitutional challenge as well, for which considerable 

Supreme Court guidance exists. We will get to that.

The Section 10101(a)(2)(B) claim in this suit challenges a legislative 

judgment on the appropriate procedures for registering voters. A vendor 

wishing to facilitate voter registration contests a statutory requirement for an 

applicant’s signature that the vendor’s smartphone application cannot 

satisfy. Usually, a legislature would not need to revise statutes to allow a 

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private party to operate its business. Build a better app, the State might insist. 

Still, the Materiality Provision mandates that an error or omission in a 

requisite for voting be material before the requirement can be enforced. 

Here, if an application received by a registrar is to be rejected, even when the 

reasons for the error or omission are limitations in Vote.org’s app, we accept 

(in the absence of any contrary argument) that materiality must be shown. 

We will proceed in the following order. First, we consider the limited 

caselaw from other circuit courts. Second, we analyze whether some weight 

should be given to Texas’s legislative judgment as to the utility of the 

contested provision. Third, we explore in some depth a factor that the 

Supreme Court has identified as relevant in voting rights claims. Finally, we 

pull those strands together as we determine the merits of the claim here.

a. Other circuits’ interpretations

We again review the few circuit court opinions that analyze the 

Materiality Provision. We already discussed those opinions insofar as they 

addressed whether the statutory language created a private right enforceable 

through Section 1983. We return to the two opinions that found a private 

right and review their analysis of materiality.

The Eleventh Circuit’s 2006 opinion considered whether it was 

permissible for Georgia to require registrants to provide a Social Security 

number. Schwier, 439 F.3d at 1286. The circuit court affirmed for the reasons 

the district court had stated in its opinion. Id. We therefore review the

district court’s analysis. 

One issue, not present in our dispute, was the effect of the Privacy 

Act, 5 U.S.C. § 552a, on requiring Social Security numbers. Schwier v. Cox, 

412 F. Supp. 2d 1266, 1276 (N.D. Ga. 2005), aff’d, 439 F.3d 1285 (11th Cir. 

2006). The district court found that requiring this unique number could help 

“prevent voter fraud,” but concluded that the Privacy Act nevertheless 

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proscribed its necessity. Id. As to our issue of materiality, the court held that 

having a Social Security number was not one of the qualifications for a voter 

under Georgia law, and that meant requiring its disclosures to vote could not 

be material when determining whether an applicant was qualified. Id. 

We do not find Schwier directly applicable. Georgia was insisting on a 

manner of voter identification that added to the statutory qualifications for 

voting, namely, that a voter have a Social Security number. 

Much more recently, the Third Circuit in 2022 evaluated whether a 

Pennsylvania law requiring a voter to write a “date on the outside of a mailin ballot . . . is material to the voter’s qualifications and eligibility to vote.” 

Migliori, 36 F.4th at 156.

7

 As with any out-of-circuit precedent, we consider 

the opinion’s persuasiveness. We do that here even though the Supreme 

Court vacated the opinion. Migliori, 143 S. Ct. at 298. For mail-in voting in 

Pennsylvania, a prospective voter was sent a ballot and a return envelope; a 

declaration was printed on the envelope that was to be signed and dated. Id. 

at 157. The envelopes containing the contested ballots were not dated. Id. 

The court began its analysis by looking to Pennsylvania’s substantive voting 

requirements, including age and residency. Id. at 162–63. The State argued, 

in part, that dating the envelope helped to deter fraud. Id. at 163. The court 

_____________________

7 We earlier explained that a majority of the Supreme Court vacated Migliori

because it held that the case was moot. See supra note 6. One explanation for mootness is 

that after the Third Circuit ordered that the disputed ballots be counted, “the election was 

certified. Then, essentially because plaintiffs had won, the Supreme Court vacated the 

Third Circuit’s decision.” David Herman, Reviving the Prophylactic VRA: Section 3, 

Purcell, and the New Vote Denial, 132 YALE L.J. 1462, 1478 n.91 (2023). 

Justice Alito, writing for three dissenting justices, concluded the Third Circuit’s 

application of the Materiality Provision was “very likely wrong.” Ritter v. Migliori, 142 S.

Ct. 1824, 1824 (2022) (Alito, J., dissenting). We find Justice Alito’s analysis largely 

dependent on difficulties of applying the Materiality Provision to vote counting. That

possibly overbroad application of the Materiality Provision is not involved here.

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explained that “[f]raud deterrence and prevention are at best tangentially 

related to determining whether someone is qualified to vote.” Id. Moreover, 

“whatever sort of fraud deterrence or prevention this requirement may 

serve, it in no way helps the [State] determine whether a voter’s age, 

residence, citizenship, or felony status qualifies them to vote.” Id. The court 

ultimately concluded that the date requirement violated the Materiality 

Provision. Id. at 164. 

Of course, the only issue was whether a date on an envelope in which 

a ballot was returned to the proper officials was material to the qualifications 

to vote. None of the votes in dispute arrived after the election, id. at 157, so 

the date was not needed as evidence that the votes were timely cast. 

A signature was also required on the envelope, and that requirement 

was uncontested. The signature was to be next to a declaration on the 

envelope, which included “a statement of the elector’s qualifications, 

together with a statement that the elector has not already voted in the primary 

or election.” 25 Pa. Stat. § 3150.14(b). An original versus an alternative form 

of signature was also not in question. 

The immateriality of the omissions in those two decisions was fairly 

obvious. Overall, nothing in Schwier and Migliori causes us to question a 

State’s requiring a signature in some form on documents relating to voting. 

Indeed, the Texas requirement of a signature is not challenged in this case. 

Only its form is contested — original versus an alternative that would allow 

Vote.org to provide its services. 

b. Weight of legislative judgments in general

For a successful claim of immateriality, the statutory text requires that 

the “error or omission” — here, the absence of an original signature on a 

voter application — not be material in determining qualifications to vote. 

Some requirements for a voter application could easily be dismissed as 

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immaterial, while others could as easily be upheld as material. The 

requirement of an original signature is not in either category. 

Among the questions for us to answer is the weight that should be

given to the State’s legislative judgment. This is not a constitutional claim 

necessitating the application of a balancing test that we will analyze later in

addressing a First Amendment claim. We do draw from that caselaw, 

though, that States have considerable discretion in establishing rules for their 

own elections. The Supreme Court recognizes a “general rule that 

evenhanded restrictions that protect the integrity and reliability of the 

electoral process itself are not invidious” and may be upheld at least against 

a constitutional attack. Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 

189–90 (2008) (quotation marks and citation omitted). Crawford was a facial 

challenge to an Indiana statute requiring a prospective voter to present at the 

polls one of a wide range of photo identifications. Id. at 185. The plaintiffs 

alleged the measure was a “violation of the Fourteenth Amendment; that it 

is neither a necessary nor appropriate method of avoiding election fraud.” 

Id. at 187. The Court conceded that the requirement had sharply divided the 

Indiana legislature on a partisan basis, and whether this was “the most 

effective method of preventing election fraud may well be debatable.” Id. at

196. What was not debatable was “the legitimacy or importance of the 

State’s interest in counting only the votes of eligible voters.” Id. The Court 

upheld the state measure without deciding what the most effective means to 

prevent fraud would be. 

Crawford is only the latest example in which the Court acknowledged 

the significance of a State’s authority to set its electoral rules and the 

considerable deference to be given to election procedures so long as they do 

not constitute invidious discrimination. The Court has explained that 

“substantial regulation of elections” is necessary incident to a “fair and 

honest . . . democratic process[].” Anderson v. Celebrezze, 460 U.S. 780, 788

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(1983) (citation omitted). Consequently, “the state’s important regulatory 

interests are generally sufficient to justify reasonable, nondiscriminatory 

restrictions.” Id. The Court has emphasized that when election regulations

“impose[] only reasonable, nondiscriminatory restrictions,” “the State’s 

important regulatory interests” will usually “justify [those] restrictions.” 

Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quotation marks and citation 

omitted). Indeed, a “State indisputably has a compelling interest in 

preserving the integrity of its election process.” Purcell v. Gonzalez, 549 U.S. 

1, 4 (2006) (citation omitted). 

We have had our own cases that, like Crawford, analyze a photo 

identification requirement for voters. See, e.g., Veasey v. Abbott, 830 F.3d 216 

(5th Cir. 2016) (en banc). Veasey involved claims brought both under the 

Constitution and under the following Voting Rights Act provision that

invalidate rules denying or abridging the right to vote based on race: 

No voting qualification or prerequisite to voting or standard, 

practice, or procedure shall be imposed or applied by any State 

or political subdivision in a manner which results in a denial or 

abridgement of the right of any citizen of the United States to 

vote on account of race or color, or in contravention of the 

guarantees set forth in section 10303(f)(2) of this title, as 

provided in subsection (b).

52 U.S.C. § 10301(a). The Veasey court found little guidance on how to 

analyze a claim that “the right to vote has been denied or abridged on account 

of race.” 830 F.3d at 244 (emphasis in original). We examined the Supreme 

Court’s factors that were first “enunciated by Congress to determine 

whether [a discriminatory] impact is a product of current or historical 

conditions of discrimination such that it violates Section 2.” Id. (citing 

Thornburg v. Gingles, 478 U.S. 30, 44–45 (1986)). The Supreme Court quite 

recently reaffirmed the central role of the Gingles factors in disputes under 

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Section 2 of the Voting Rights Act. See Allen v. Milligan, 599 U.S. 1, 17–19

(2023). 

In considering this appeal, we also, like our court in Veasey, have found 

little guidance on analyzing the materiality of a requirement for registering to 

vote. Failing to register will deny a right to vote. The 1964 Materiality 

Provision for registration to vote only slightly predates the 1965 Voting 

Rights Act and can be considered a precursor in many respects. That makes 

the Supreme Court’s guidance on applying the Voting Rights Act of 

relevance to the earlier, quite narrow provision on voting. 

As we structure our own approach, we explain why the Materiality 

Provision — even though it was in the first section of the 1964 Civil Rights

Act8 — is not limited to claims that immaterial requirements for voter 

registration discriminate on the basis of race. The House Report on the Act 

stated that the provision was a response to practices in many states that 

treated blacks seeking to register to vote differently than whites. Civil Rights 

Act of 1963, H.R. Rep. No. 88-914 (Nov. 20, 1963), Part 2, at 5, reprinted in 

12544 U.S. CONG. SERIAL SET (1963). All three provisions that are now 

Sections 10101(a)(2)(A)–(C) were adopted to attack the problem. 

Subsection (A) requires any practice applied to one individual to be applied 

to all. Subsection (C) prohibits literacy tests, which were applied to 

discriminate against Blacks. Together with the Materiality Provision of 

subsection (B), these three provisions were a formidable barrier to a 

continuation of discriminatory practices. Surely, Congress anticipated in

1964 that usually the claim would be of racial discrimination. Thus, in 

deciding the proper considerations for a claim under the Materiality 

_____________________

8 The Materiality Provision was one of three subsections, all dealing with voting, 

comprising the first section of the Civil Rights Act of 1964, Pub. L. No. 88-352, § 101, 78 

Stat. 241. 

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Provision, the existence of racial discrimination generally will be relevant

though, in light of the text of the provision, not essential. The provision was 

written in a somewhat over-inclusive form to capture well-disguised 

discrimination. We later discuss Texas’s argument that, by not requiring 

proof of racial discrimination, the provision is unconstitutional.

Now, back to Veasey. The two factors we selected there from Gingles 

were the ones uniquely relevant to examining claims of vote denial. Veasey, 

830 F.3d at 244. We distinguished vote denial claims from those of vote 

dilution, the latter often seen in legislative redistricting cases where the 

Gingles factors are applied in full. Id. If the claim is that the right to vote has 

been denied or abridged on account of race, these factors are relevant:

[1] [T]he challenged standard, practice, or procedure must 

impose a discriminatory burden on members of a protected 

class, meaning that members of the protected class have less 

opportunity than other members of the electorate to participate 

in the political process and to elect representatives of their 

choice, [and]

[2] [T]hat burden must in part be caused by or linked to social 

and historical conditions that have or currently produce 

discrimination against members of the protected class.

Id. (alterations in original) (quoting League of Women Voters of N.C. v. North 

Carolina, 769 F.3d 224, 240 (4th Cir. 2014)). 

Those two factors, though not focused on the significance of a voting 

requirement, could also be relevant to a Materiality Provision claim when 

racial discriminatory effects are alleged. Vote.org’s brief argued that the 

challenge of providing an original signature is “particularly acute for young 

adults, low-income voters, and minorities.” We find insufficient evidence or 

argument, though, to conclude that Vote.org has claimed racial 

discrimination. Indeed, the State argues that Vote.org’s claims fail because 

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they are not about racial discrimination. We explain later that the Materiality 

Provision does not require proof of racial discrimination. We similarly reject 

that Vote.org’s claims are for racial discrimination. Perhaps, though, Gingles 

has useful guidance for a claim that a particular “application, registration, or 

other act requisite to voting” is material. 52 U.S.C. § 10101(a)(2)(B). 

Of the other seven Gingles factors, we find one that is directly 

applicable in analyzing a State’s justifications for the materiality of a practice: 

“whether the policy underlying the state or political subdivision’s use of such 

voting qualification, prerequisite to voting, or standard, practice or procedure 

is tenuous.” Veasey, 830 F.3d at 246 (quoting Gingles, 478 U.S. at 37). 

“Tenuous” suggests an absence of a strong connection between the policy 

and the requirement. See id. at 262. Thus, if the policy or justification for 

the requirement is merely tenuous, that is a factor in favor of invalidating the 

requirement. On the other hand, how does a connection that is more than 

tenuous affect our analysis? We explore tenuousness next.

c. Tenuousness

To understand the factor of tenuous connections, we examine one of 

our opinions from two decades before Veasey. The discussion was in a case 

about Texas’s long-time practice of electing judges county-wide. See League 

of United Latin Am. Citizens v. Clements, 999 F.2d 831 (5th Cir. 1993). All 

voters in a populous county would elect numerous judges to serve on the 

same local court with county-wide jurisdiction, but the plaintiffs sought to 

have elections from smaller, single-judge districts. Id. at 837–38. The 

Supreme Court had reversed and remanded our earlier decision that the 

Voting Rights Act did not even apply to judicial elections. See Houston 

Lawyers’ Ass’n v. Att’y Gen., 501 U.S. 419, 423–24, 428 (1991). Though the 

Act applied, the Supreme Court acknowledged that Texas had a legitimate 

interest in linking a judge’s jurisdiction to the same geographical area as the 

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one in which the judge’s voters resided. Id. at 426. Moreover, the “State’s 

justification for its electoral system is a proper factor for the courts to assess 

in a racial vote dilution inquiry, and the Fifth Circuit has expressly approved 

the use of this particular factor in the balance of considerations.” Id. at 426–

27 (citing Zimmer v. McKeithen, 485 F.2d 1297, 1305 (1973), aff’d sub nom. 

East Carroll Par. Sch. Bd. v. Marshall, 424 U.S. 636 (1976)). 

This cite to Zimmer is significant, for that is a source for the Gingles 

Court’s adoption of factors to consider in vote-dilution cases. Gingles, 478 

U.S. at 36 n.4. The “particular factor” cited with approval by the Houston 

Lawyers’ Court was whether the State’s policy behind a requirement was 

tenuous. Houston Lawyers’, 501 U.S. at 426–27. The Court remanded to us 

for further proceedings, making clear that the State’s justifications for

maintaining a particular electoral scheme was only one factor to consider. Id.

On remand, we discussed the consideration of the tenuousness of a 

State’s justifications in some detail. We concluded that, “while the Supreme 

Court rejected the contention that the linkage interest in all cases defeated 

liability under § 2,[9] the Court endorsed the position that the linkage interest 

is relevant to a determination of liability.” League of United Latin Am. 

Citizens, 999 F.2d at 870. By “linkage interest,” we were referring to the 

State’s interest in linking a judge’s jurisdiction to the same area as the judge’s 

electoral base. Id. at 869. We identified the issue for determination as 

deciding “when the linkage interest will outweigh other factors and defeat 

liability under § 2.” Id. at 870. Some of our analysis was specifically about 

the State’s interest in that linkage, which our court saw as far more than 

_____________________

9 Section 2 of the Voting Rights Act is codified as 52 U.S.C. § 10301. It prohibits 

imposition of a “voting qualification or prerequisite to voting” that “results in a denial or 

abridgement of the right . . . to vote on account of race or color.” § 10301(a). “A violation 

of subsection (a) is established” under a “totality of the circumstances” test. § 10301(b).

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tenuous. The policy has “additional and distinct relevance because it 

advances objectively substantive goals.” Id. Useful, more general analysis 

was also given.

Our resolution of the issue included quoting the Supreme Court “that 

the linkage interest does not ‘automatically, and in every case, outweigh 

proof of racial vote dilution.’” Id. (quoting Houston Lawyers’, 501 U.S. at 

427). “We also reject[ed] the position of plaintiffs that the linkage interest 

can never defeat liability under the totality of circumstances if ‘illegal’

dilution is otherwise established.” Id. More generally, “[t]he weight, as well 

as tenuousness, of the state’s interest is a legitimate factor in analyzing the 

totality of circumstances.” Id. at 871. Our reference to “totality” borrowed

from Section 2 of the Voting Rights Act and the Supreme Court’s holding 

that the State’s interest in a voting measure “is a legitimate factor to be 

considered by courts among the ‘totality of circumstances’ in determining 

whether a § 2 violation has occurred.” Houston Lawyers’, 501 U.S. at 426; 

52 U.S.C. § 10301(b). We also stated that “[t]he substantiality of the state’s

interest has long been the centerpiece of the inquiry into the interpretation of 

the Civil War Amendments and their interplay with the civil rights statutes.” 

League of United Latin Am. Citizens, 999 F.2d at 871. As to the policy in that 

case, we held that the State’s interest in linking judges’ electoral districts to 

the geographical areas over which they had jurisdiction was substantial and 

overrode the evidence of some vote dilution. Id. at 876.

The principles stated by our court that are relevant here were these:

(1) “[T]he principal probative weight of a tenuous state policy is its 

propensity to show pretext.” Id. at 870 (quoting Terrazas v. Clements, 581 F.

Supp. 1319, 1345 n. 24 (N.D. Tex. 1983) (three-judge court)).

(2) “Proof of a merely non-tenuous state interest discounts one 

Zimmer factor, but cannot defeat liability.” Id. at 871.

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(3) “[P]roof of a substantial state interest” may defeat liability even if 

some vote dilution results. Id.

(4) “The issue of substantiality” of the State’s interest “is a legal 

determination.” Id.

These opinions regarding election of judges were applying Section 2 

of the Voting Rights Act. That provision prohibits “denial or abridgement 

of the right . . . to vote on account of race or color.” 52 U.S.C. § 10301(a). 

The Materiality Provision similarly prohibits denial of the right to vote due 

to an immaterial error or omission in some “act requisite to voting.” 

§ 10101(a)(2)(B). Because the State’s justification for its practice is relevant 

even in a claim that a voting requirement has racially discriminatory effects 

and some weight is given to the State’s judgment so long as that policy is 

more than tenuous, we hold that similar considerations apply to the 

Materiality Provision. 

We thus need to examine the State’s policy and its connection to 

original signatures. We draw from our earlier discussion of Crawford. There 

we quoted the Supreme Court’s giving weight to the legislature’s judgment 

in creating “evenhanded restrictions that protect the integrity and reliability 

of the electoral process.” Crawford, 553 U.S. 189–90 (quotation marks and 

citation omitted). “Evenhanded” is a synonym for nondiscriminatory. The 

Crawford Court upheld the State’s remedy to protect against voter fraud —

photo identification — even though evidence of voter fraud was scant and 

the most effective means of combatting any fraud that existed was 

“debatable.” Id. at 195–96. Obviously, then, a State has considerable 

discretion in deciding what is an adequate level of effectiveness to serve its 

important interests in voter integrity. When we evaluate the materiality of a 

measure, we must give weight to the State’s justification for it.

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Application of the tenuousness factor can be seen as involving two 

steps. The first is determining if the connection between policy and 

requirement is only tenuous. If it is, then the factor supports invalidating the 

requirement. To avoid a finding of tenuousness, “there cannot be a total 

disconnect between the State’s announced interests and the statute 

enacted.” Veasey, 830 F.3d at 262. There must be some measure of “fit 

between the expressed policy and the provisions of the law.” Id. 

Tenuousness might be found, for example, where a law “fail[s] to correspond 

in any meaningful way to the legitimate interests the State claims to have been 

advancing.” Id. at 263. Indeed, there must be more than a “dubious 

connection between the State’s interests” and the challenged law. Id. 

The second step is taken if the connection between a measure relating 

to voting and its justification is more than tenuous. That does not mean the 

measure is upheld. Instead, under the totality of circumstances, we consider 

whether a provision meaningfully corresponds to “legitimate interests the 

State claims to have been advancing.” Id. By “meaningful” and 

“legitimate” we mean that the measure advances that interest without 

imposing pointless burdens. Specifically, we ask: (1) how substantial is the 

State’s interest in the “requisite to voting” in which some “error or 

omission” exists; (2) does that interest relate to “determining whether such 

individual is qualified under State law to vote in such election”; and (3) under 

the totality of the circumstances, what is the strength of the connection 

between the State’s interest and the measure, i.e., how well does the measure 

advance the interest? See 52 U.S.C. § 10101(a)(2)(B). “The issue of 

substantiality” of the State’s interest “is a legal determination.” League of 

United Latin Am. Citizens, 999 F.2d at 871.

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d. Materiality of an original signature

With this caselaw in hand, we now analyze Texas’s arguments to 

overturn the district court’s holding that the absence of an original signature 

on a voter registration form was an immaterial omission.

Texas’s first argument is that the Materiality Provision requires a 

showing of racial discrimination. To hold otherwise, Texas says, presents 

constitutional problems. We discussed earlier why the Materiality Provision

was not written in terms of racial discrimination.10 The key words and 

phrases are “error or omission,” “right of any individual to vote,” “on any 

record or paper,” “application, registration,” and “not material in 

determining whether such individual is qualified” to vote. 52 U.S.C. 

§ 10101(a)(2)(B) (emphasis added). No suggestion of a requirement of racial 

discrimination exists in any of that language. 

Though it is clear that the target of the Materiality Provision was racial 

discrimination, the manner chosen to capture the hard-to-predict variations 

in “trivial reasons” was by broadly “prohibiting the disqualification of an 

individual because of immaterial errors or omissions.” Civil Rights Act of 

1963, H.R. Rep. No. 88-914 (1963), Part 1, at 19, reprinted in 12544 U.S.

CONG. SERIAL SET (1963). Thus, the Materiality Provision is not textually 

limited to protecting only one race of votersin order to more effectively reach 

subtle forms of racial discrimination, i.e., requirements that are pretexts for 

racial discrimination.

_____________________

10 Elsewhere in Section 10101, Congress did plainly express this need. Section 

10101(a)(1) provides that “[a]ll citizens . . . who are otherwise qualified by law to vote . . . 

shall be entitled and allowed to vote . . . without distinction of race.” 52 U.S.C. 

§ 10101(a)(1). When Congress “includes particular language in one section of a statute but 

omits it in another . . . , it is generally presumed that Congress acts intentionally.” Keene 

Corp. v. United States, 508 U.S. 200, 208 (1993) (alteration in original) (citation omitted).

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This understanding of the broader language is expressed in one of the 

few scholarly articles on the Materiality Provision. Justin Levitt, Resolving 

Election Error: The Dynamic Assessment of Materiality, 54 WM. & MARY L.

REV. 83 (2012). “Though the primary motivation for the sponsors of the 

materiality provision was clearly the confrontation of racial discrimination, 

Congress drafted the provision to embrace errors or omissions beyond those 

used to discriminate based on race.” Id. at 148. While “the text of most 

other sections of the Civil Rights Act of 1964 ties the relevant right in 

question to racial discrimination,” id. at 149 & n.216, Congress did not place 

that limitation in the Materiality Provision. 

Though we find it reasonable that omitting any reference to racial 

discrimination in this provision made it more effective in combatting that 

scourge, there remains the issue of whether Congress had authority to 

legislate so broadly. Understanding the scope of the problem Congress 

sought to rectify, we must decide whether the Materiality Provision was a 

“congruen[t] and proportional[]” exercise of power under the Fourteenth 

and Fifteenth Amendments.11 See City of Boerne v. Flores, 521 U.S. 507, 520 

(1997). 

“Congress may enact so-called prophylactic legislation that 

proscribes facially constitutional conduct in order to prevent and deter 

unconstitutional conduct.” Nevada Dep’t of Hum. Res. v. Hibbs, 538 U.S. 721, 

721–22 (2003). The Boerne Court quoted Justice Harlan’s 1970 conclusion 

that Congress may prohibit all literacy tests under the Fifteenth Amendment 

_____________________

11 The Supreme Court has not decided whether legislation enacted under the 

Fifteenth Amendment on voting rights must be “congruen[t] and proportional[]” or 

simply a “rational means” of executing a constitutional prohibition. NorthwestAustin Mun. 

Util. Dist. No. One v. Holder, 557 U.S. 193, 204 (2009). The Materiality Provision satisfies 

either test. 

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because they “unduly lend themselves to discriminatory application.” 

Boerne, 521 U.S. at 526 (quoting Oregon v. Mitchell, 400 U.S. 112, 216 (1970) 

(Harlan, J., concurring in part)). We apply that reasoning here to prohibit 

those acting under color of law from using immaterial omissions, which were 

historically used to prevent racial minorities from voting, from blocking any

individual’s ability to vote — irrespective of racial animus. That prohibition 

is a congruent and proportional exercise of congressional power. 

Next, Texas argues that requiring an original signature does not “deny 

the right of any individual to vote,” quoting Section 10101(a)(2), because (1)

the requirement is part of an expansion of registration methods; (2) rejected 

applicants are offered a chance to cure the deficiency; and (3) there are other 

registration methods apart from fax. 

We cannot agree that if the relevant restriction on voting is packaged 

with expansions, the restriction must be valid. Less clear is the effect of a 

simple means to cure. This court’s motions panel decided that because the 

absence of an original signature on the initial application still allows 

registration through alternative means, the requirement was not a denial of 

the right to vote. Vote.org, 39 F.4th at 306. We set aside that holding. It is 

true that the immaterial requirements some of the State’s voting registrars 

were using when this provision was adopted left no alternatives, from simple 

misspellings to requiring Black applicants to analyze long sections of the 

Constitution. See H.R. Rep. 88-914 (1963), Part 2, at 5. Our doubt about the 

efficacy of an ability to cure is that the need to cure an immaterial requirement 

creates a hurdle for — even if it is not itself a final denial of — the right to 

vote. That issue is left open for a later case. We do not rely today on the fact 

alternatives exist if the initial registration fails.

The State also seemingly argues that any requirement in State law that 

is a prerequisite to voting is “material” because it is, by definition, a 

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component of someone’s qualifications to vote. The argument is that “in 

Texas, an individual is qualified to vote only if she is registered and to register 

via fax she must comply with the [W]et [S]ignature [R]ule.” Thus, Texas 

concludes, the Wet Signature requirement is “material” because without a 

wet signature, a “person is not qualified to vote under state law.” 

We reject that States may circumvent the Materiality Provision by 

defining all manner of requirements, no matter how trivial, as being a 

qualification to vote and therefore “material.” The Materiality Provision is 

a standard that a State’s voter registration requirements must satisfy. The 

central question here is whether an original signature is material to 

“determining whether such individual is qualified” to vote, giving weight to 

the State’s policy for the provision unless it is too tenuous.

Now that we have rejected the arguments that would avoid actually 

analyzing the materiality of an original signature, we examine what Texas 

argues makes an original signature material. 

To restate, Section 10101(a)(2)(B) refers to matters that are material 

in deciding whether an “individual is qualified under State law to vote.” 

What makes an individual qualified to vote under Texas law? By statute, 

there are age, citizenship, residency, capacity, and criminal history 

qualifications. TEX. ELECT.CODE § 11.002. There are similar qualifications 

for eligibility to register. § 13.001. Undeniable, though, is a premise for all 

the statutory qualifications: Are the individuals who are trying to register 

actually who they say they are? Texas argues that requiring an original 

signature assists in meeting this voting qualification.

Voter identification was the subject of the Supreme Court’s opinion 

we discussed earlier that approved Indiana’s photo identification law. See 

Crawford, 553 U.S. at 204. Even in our en banc Veasey opinion that invalidated 

a statutory requirement for voter identification, we found “[t]he State’s 

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stated purpose in passing [a voter-identification statute] centered on 

protection of the sanctity of voting, avoiding voter fraud, and promoting 

public confidence in the voting process. No one questions the legitimacy of 

these concerns as motives.” Veasey, 830 F.3d at 231. After remand and a 

revision in the law, we upheld the requirements. Veasey v. Abbott, 888 F.3d 

792, 796, 802–03 (5th Cir. 2018). 

Voter integrity is the principal justification that Texas argues to 

support the requirement of an original signature. As a matter of law, we 

conclude that is a substantial interest. Is that substantial interest, though, 

more than tenuously connected to the requirement of an original signature?

Texas says it is. It argues that an original signature helps assure that 

an applicant meets the substantive requirements to vote that are listed above 

where the signature is to be placed. The following statements appear directly 

above the signature block in the registration forms in this record: 

I understand that giving false information to procure a voter 

registration is perjury, and a crime under state and federal law. 

Conviction of this crime may result in imprisonment up to one 

year in jail, a fine up to $4,000, or both. Please read all three

statements to affirm before signing.

I am a resident of this county and a U.S. citizen; 

I have not been finally convicted of a felony, or if a felon, I have 

completed all of my punishment including any term of 

incarceration, parole, supervision, period of probation, or I 

have been pardoned; and

I have not been determined by a final judgment of a court 

exercising probate jurisdiction to be totally mentally 

incapacitated or partially mentally incapacitated without the 

right to vote.

Screenshots taken using Vote.org’s app reveal that users did not see 

those notices when they completed their applications. The first paragraph of 

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warnings concerning perjury, imprisonment, and fines is required by statute 

to appear on the application form. See TEX. ELECT. CODE § 13.122(a)(1), 

(13). The form also may contain any information “considered appropriate 

and required by the secretary of state.” § 13.122(a)(14). These statements 

affirm the substantive qualifications needed to vote under Texas law. See

§ 11.002.

It is true that no statute requires those warnings to appear next to 

where a voter is to sign; distance between the two would potentially dilute

the wet signature’s effectiveness. One statute, though, requires the 

Secretary of State to “have the official application forms for registration by 

mail printed” and mandated that the Secretary would “furnish the forms 

without charge to each registrar.” § 13.121(c). A copy of that form was 

attached to Texas’s motion for summary judgment. The space for a 

signature is in the same numbered block of the form as the warnings and 

directly below them. Even though the requirements that the form contain 

the warnings and that it be completed with an original signature are in 

different statutory sections, it is reasonable to assume the legislature knew 

the structure of the form when it decided in 2021 to require an original 

signature.

We accept what Texas is arguing now, that a reasonable 

understanding of the legislative judgment is that physically signing the form 

with the warnings in front of the applicant, threatening penalties for perjury 

and stating the needed qualifications, has some prospect of getting the 

attention of many applicants and dissuading false statements that an 

electronic signature, without these warnings, does not. Even beyond the 

appearance of the printed warnings, Texas insists — echoing the motions 

panel —that applying an original signature to a voter registration form carries 

“solemn weight” that an imaged signature does not. Vote.org, 39 F.4th at 

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308. Texas is allowed to have doubts about technological substitutes, at least 

when those doubts fit within the strictures of the Materiality Provision.

Signing an application is related to voting qualifications. The district 

court agreed: “Texas provides abundant evidentiary and legal support for the 

conclusion that a signature is important and vital to determine a voter’s 

qualification to vote.” Vote.org, 609 F. Supp. 3d at 529. The district court

faulted Texas for “fail[ing] to show or explain why a wet signature is required 

in this instance to determine the registrant’s qualification to vote.” Id.

(emphasis in original). Thus, the district court accepted the validity of 

requiring a signature, just not an original one when a registrant wanted to use 

Vote.org’s services.

Vote.org makes several criticisms of the effectiveness of an original 

signature to deter fraud and of the consistency by which Texas imposes that 

requirement. For example, Vote.org insists that original signatures are, in 

practice, not used to verify anyone’s identity or to check for fraud. Vote.org 

also refers to evidence that some of the county defendants conceded that 

there is no practical difference between an original signature and an 

electronic one. Moreover, Vote.org highlights that Texas accepts digital 

signatures in other contexts, such as when individuals register to vote at the 

Department of Public Safety.

Our resolution comes down to whether requiring an original signature 

meaningfully, even if quite imperfectly, corresponds to the substantial State 

interest in assuring that those applying to vote are who they say they are. Is 

there a strong enough connection to overcome the possible denial of 

registration to some applicants? We must give weight to a state legislature’s 

judgment when it has created “evenhanded restrictions that protect the 

integrity and reliability of the electoral process.” Crawford, 553 U.S. 189–90. 

Does giving weight to that judgment allow us to conclude that an original 

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signature is material to deciding the applicant’s identity — the most basic 

qualification to vote? Does it have “serious or substantial import”? Material, 

OXFORD ENGLISH DICTIONARY, III.6.a. Does requiring an applicant to 

provide an original signature on the form with the attendant warnings and 

explanations “affect a person’s decision-making”? Material, BLACK’S LAW 

DICTIONARY.

We answer, first, that Texas’s interest in voter integrity is substantial. 

Second, that interest relates to the qualifications to vote — are the registrants 

who they claim to be? Finally, most voter registration forms likely are 

completed far from any government office or employee. That limits the 

methods of assuring the identity of the registrant. Though the effect on an 

applicant of seeing these explanations and warnings above the signature block 

may not be dramatic, Texas’sjustification that an original signature advances 

voter integrity is legitimate, is far more than tenuous, and, under the totality 

of the circumstances, makes such a signature a material requirement. 

IV. First Amendment claim 

Vote.org also brought a First Amendment claim. “Where a state 

election rule directly restricts or otherwise burdens an individual’s First 

Amendment rights, courts apply a balancing test derived from two Supreme 

Court decisions, Anderson [v. Celebrezze, 460 U.S. 780 (1983)], and Burdick 

v. Takushi, 504 U.S. 428 (1992).” Voting for Am., Inc. v. Steen, 732 F.3d 382, 

387 (5th Cir. 2013). The Anderson-Burdick rule requires courts to weigh the 

“character and magnitude of the asserted injury” against the “precise 

interests put forward by the State,” “taking into consideration the extent to 

which those interests make it necessary to burden the plaintiff’s rights.” Id.

(quoting Burdick, 504 U.S. at 434). If a “severe burden on First Amendment 

rights” is created, the state rule “must be narrowly drawn to advance a state 

interest of compelling importance. Lesser burdens, however, trigger less 

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exacting review, and a State’s important regulatory interests will usually be 

enough to justify reasonable, nondiscriminatory restrictions.” Id. (quotation 

marks and citations omitted). 

The district court, focusing on the original signature requirement in 

isolation, found that it imposed a burden that is “more than slight.” Texas 

argues that looking at the Rule in a vacuum was error; instead, the court 

should have considered the panoply of registration options available to Texas 

voters. In one of our opinions, we evaluated Supreme Court precedents and 

explained that “the severity analysis is not limited to the impact that a law 

has on a small number of voters.” Richardson v. Tex. Sec’y of State, 978 F.3d 

220, 236 (5th Cir. 2020) (examining Crawford, 553 U.S. 181). Vote.org cites 

a Sixth Circuit case for the proposition that restrictions should be looked at 

only “from the perspective of [the] affected electors.” Mays v. LaRose, 951 

F.3d 775, 785 (6th Cir. 2020). Mays’s statement, however, was confined to 

laws that effect “disparate treatment” because they are facially

discriminatory. Id. at 785. By contrast, the Wet Signature Rule here is 

generally applicable. Cf. Crawford, 553 U.S. at 207 (Scalia, J., concurring in 

the judgment) (“[A] generally applicable law with disparate impact is not 

unconstitutional.”). 

The original signature requirement, then, must be viewed in light of 

other available registration options, including submissions via Department of 

Public Safety, direct mail, personal delivery, and volunteer deputy registrars. 

TEX. ELEC.CODE §§ 13.002(a), 13.031, 13.038, 13.041. Accounting for these 

other options, the burden imposed by the requirement is only “slight.” 

Crawford, 553 U.S. at 191. 

Texas argues that the requirement advances the State’s interest in 

multiple respects. It guarantees that registrants attest to meeting the 

qualifications to vote and impresses upon registrants “the seriousness” of 

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registering. It also ensures security and reliability that a third-party app, 

Texas says, cannot provide. 

Texas’s interests in reliability and fraud deterrence are “legitimate.” 

Id. at 191, 196. As described above, original signatures may dissuade 

improper individuals from registering. Further, Texas may prefer the 

uniformity that original signatures provide, especially if that uniformity 

produces signatures that are “superior” and less prone to technical defects 

than those gathered by third-party apps. That Texas allows electronic 

submissions via the Department of Public Safety does not necessarily alter 

the calculus. Texas exerts more control over and may legitimately have more 

confidence in that department’s systems.

Where the challenged law “imposes only a limited burden,” the 

constitutional inquiry grants state governments considerable leeway. See id.

at 203. Texas’s interests in ensuring reliability and reducing fraud are

“sufficiently weighty” to protect the Wet Signature Rule from constitutional 

attack. See id. at 190–91. 

We REVERSE and RENDER judgment for the defendants.

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Stephen A. Higginson, Circuit Judge, dissenting:

I agree in large part with the majority opinion’s analysis. I agree with 

the panel majority that Vote.org has Article III standing; that it can privately 

enforce section 101 of the Civil Rights Act of 1964 (the “Materiality 

Provision”), 52 U.S.C. § 10101(a)(2)(B); that a Materiality Provision claim 

does not require evidence of racial discrimination; that a chance to cure 

rejected applications does not render an immaterial provision material; and 

that a state may not circumvent the Materiality Provision by defining any 

trivial requirement as a “material” qualification to vote. But I cannot agree 

that Texas’s “wet signature” requirement1

—which Texas officials 

conceded serves “no practical purpose”—is “material in determining 

whether [a Texan] is qualified under [Texas] law to vote.” 52 U.S.C. 

§ 10101(a)(2)(B). Because Texas’s wet-signature requirement violates the 

Materiality Provision, I must therefore respectfully dissent. 

The district court aptly described Vote.org’s mission and outreach 

activities as including: “(1) us[ing] technology to simplify political 

engagement, increase voter turnout, and strengthen American democracy; 

(2) work[ing] to support low-propensity voters, including racial and ethnic 

minorities and younger voters who tend to have lower voter-turnout rates; 

and (3) help[ing] Texans register to vote and verify registration status.” 

Vote.org’s app “is critical to ensure that voters with limited access to 

_____________________

1 Like the parties and the majority, I will refer to § 13.143(d-2) of the Texas Election 

Code as the “wet signature” requirement. Section 13.143(d-2) provides: 

For a registration application submitted by telephonic facsimile machine 

to be effective, a copy of the original registration application containing the 

voter’s original signature must be submitted by personal delivery or mail 

and be received by the registrar not later than the fourth business day after 

the transmission by telephonic facsimile machine is received. 

Tex. Elec. Code Ann. § 13.143(d-2) (West 2023). 

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printers or mailing facilities, or who otherwise need assistance to register to 

vote, have meaningful opportunities to do so.” Complaint at 4, Vote.org v. 

Callanen, 609 F. Supp. 3d 515 (W.D. Tex. 2022) (No. 5:21-CV-649), ECF 

No. 1. Vote.org seeks to maximize registration of Americans eligible to vote, 

yet its effort to engage Americans in self-government faces legal hurdles

around the country. See, e.g., Vote.org v. Ga. State Election Bd., No. 1:22-CV01734-JPB, 2023 WL 2432011 (N.D. Ga. Mar. 9, 2023); Vote.org v. Byrd, No. 

4:23-cv-111-AW-MAF (N.D. Fla. June 13, 2023). 

I.

The majority invokes a line of constitutional vote-denial cases, 

including Crawford v. Marion County Election Board, 553 U.S. 181 (2008), for 

the proposition that “[s]tates have considerable discretion in establishing 

rules for their own elections.” Op. 26-27 (citing Crawford, 553 U.S. 181; 

Anderson v. Celebrezze, 460 U.S. 780 (1983); and Burdick v. Takushi, 504 U.S. 

428 (1992)). But we have previously recognized that Crawford “only 

considered a First and Fourteenth Amendment challenge, which involves a 

different analytical framework than what we use for [statutory] claims.” 

Veasey v. Abbott, 830 F.3d 216, 249 (5th Cir. 2016) (en banc). And the 

Materiality Provision expressly limits states’ purported “considerable 

discretion”: States cannot “deny the right of any individual to vote in any 

election because of an [immaterial] error or omission on any record or paper 

relating to any application, registration, or other act requisite to voting.” 52 

U.S.C. § 10101(a)(2)(B). The “considerable deference to be given to [state] 

election procedures” thus has no place in a materiality analysis. Op. 26. 

The majority likewise borrows the “tenuousness” factor from the 

multifactorial test in Thornburg v. Gingles, 478 U.S. 30 (1986)—which applies 

to section 2 claims under the Voting Rights Act—in its materiality analysis.

The Gingles factors are “used to help determine whether there is a sufficient 

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causal link between the disparate burden imposed and social and historical 

conditions produced by discrimination.” Veasey, 830 F.3d at 245. Unlike a 

section 2 claim, though—as the majority recognizes—a Materiality Provision 

claim need not allege any evidence of discrimination. Op. 35-37. More 

importantly, nothing in the Materiality Provision’s text or existing case law 

requires plaintiffs to show a “disparate burden” on the right to vote; instead, 

plaintiffs need only demonstrate that the state’s procedural requirement “is 

not material in determiningwhether” they are “qualified” to vote. 52 U.S.C. 

§ 10101(a)(2)(B). Accordingly, reliance on the Gingles factors is inapposite 

in the materiality context. Cf. Schwier v. Cox, 340 F.3d 1284, 1294 (11th Cir. 

2003) (explaining that the Materiality Provision “was intended to address 

the practice of requiring unnecessary information for voter registration with 

the intent that such requirements would increase the number of errors or 

omissions on the application forms, thus providing an excuse to disqualify 

potential voters”); Migliori v. Cohen, 36 F.4th 153, 163 (3d Cir.) (“Fraud 

deterrence and prevention are at best tangentially related to determining 

whether someone is qualified to vote. But whatever sort of fraud deterrence 

or prevention this requirement may serve, it in no way helps the [state] 

determine whether a voter’s age, residence, citizenship, or felony status 

qualifies them to vote.”), cert. granted, judgment vacated sub nom. Ritter v. 

Migliori, 143 S. Ct. 297 (2022). 

II.

The crux of the majority’s materiality analysis reduces to one 

sentence: “Texas says it is.” Op. 39. But even if we accept the majority’s 

importation of Crawford and Gingles into the materiality context, deference 

to Texas’s election procedures cannot save the wet-signature requirement. 

The majority characterizes the second step of the tenuousness analysis as 

requiring “that the measure advances [the state’s] interest without imposing

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pointless burdens.” Op. 34. But as the district court carefully found, 

factually, the wet-signature requirement is undisputedly pointless. 

The district court found the following undisputed facts: County 

registrars admitted that “they do not use a wet signature at any time or with 

any form of voter registration submission to determine a voter’s qualification 

to vote.” They “do not compare the telephonic-facsimile submitted 

signature against the wet signature, nor do they use either signature for 

identity verification purposes.” In fact, they typically destroy the original 

application once they have entered the applicant’s information into their 

computer system and saved an image of the signature. 

The district court found that when county officials “investigate 

reported or suspected voter fraud,” they use only “a scanned image of the 

registration signature[], not the original, wet signature.” Indeed, “[a]ny 

fraud investigation is conducted completely electronically” and “[a]t no time 

is an original, wet signature used.” 

Tellingly, officials conceded that there is no “difference in purpose or 

function between a ‘wet ink’ signature and an electronic or imaged 

signature.” Texas has no problem accepting registration applicants’ 

signatures in electronic form when completed at Texas Department of Public 

Safety offices. Nor does Texas object to the use of electronic signatures in

contracts, advance health directives, divorce decrees, and real-property 

closings. See Tex. Bus. & Com. Code Ann. § 322.007(d) (West 2023); 

Tex. Health & Safety Code Ann. § 166.011 (West 2023); Bartee v. 

Bartee, No. 11-18-0017-CV, 2020 WL 524909, at *3 (Tex. Ct. App. Jan. 31, 

2020); Tex. Prop. Code Ann. § 12.0013 (West 2023). The record 

contains a simple explanation for Texas’s singular interest in a wet signature 

in the context of registration applications submitted by fax machine: Texas 

officials explicitly drafted § 13.143(d-2) to prevent the use of Vote.org’s eCase: 22-50536 Document: 00517004327 Page: 48 Date Filed: 12/15/2023
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sign tool. Just like the states’ procedural requirements in Schwier and 

Migliori, the immateriality of Texas’s wet-signature requirement is “fairly 

obvious.” Op. 25. 

And there’s the rub: Although I suppose it might hypothetically be 

possible that a wet-signature requirement could materially determine whether 

a voter is qualified under Texas law, Texas—and the majority—cannot point 

to any evidence of the requirement’s materiality in the substantial record 

before us, on which we must decide this case. Instead, Texas officials’ 

admissions that they do not use the wet signature in any capacity to 

determine a voter’s qualifications “slams the door shut on any argument that 

[a wet signature] is material.” Migliori, 36 F.4th at 164. 

III.

Even if we accept the majority’s application of Crawford and Gingles

to Materiality Provision claims, and even if we put to one side the factual 

immateriality of the wet-signature requirement, the majority’s analysis still

fails on its own terms. Texas might have had an argument that Vote.org’s 

app implicates § 13.122(a) of the Texas Election Code if the app’s electronic 

registration application form omits the prescribed warning statements, but 

Texas did not make that argument and, regardless, that has nothing to do with

the wet-signature requirement. See Tex. Elec. Code Ann. 

§ 13.122(a)(1), (13) (West 2023) (requiring, among other statements “on an 

officially prescribed registration application form,” the following two 

statements: (1) “I understand that giving false information to procure a voter 

registration is perjury and a crime under state and federal law” and (2) “a 

statement warning that a conviction for making a false statement may result 

in imprisonment for up to the maximum amount of time provided by law, a 

fine of up to the maximum amount provided by law, or both the 

imprisonment and the fine”). By placing the weight of its materiality analysis

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on § 13.122(a)’s required statements, the majority effectively acknowledges

that the wet-signature requirement is itself immaterial. See Op. 39-41. 

That is because the “solemnity” argument put forth by Texas (and 

accepted by the majority) is distinct from the wet-signature requirement. 

Nothing ties the wet signature itself to the statements above the signature 

block. In fact, Texas law does not even dictate where the prescribed 

statements are to be included in the registration application form. See Tex. 

Elec. Code Ann. § 13.122(a) (West 2023). That does not change based 

on whether a person signs with a pen or an electronic signature. And there is 

no evidence in the record that the wet signature itself—as opposed to a

digitally imaged signature—adds any sort of “solemnity.” Indeed, the 

majority’s assertion that the wet-signature requirement is material hinges on 

“the effect on an applicant of seeing these explanations and warnings above 

the signature block.” Op. 42; see also Op. 40 (describing Texas’s 

“solemnity” argument as “signing the form with the warnings in front of the 

applicant, threatening penalties for perjury and stating the needed

qualifications, has some prospect of getting the attention of many applicants 

and dissuading false statements that an electronic signature, without these 

warnings, does not” (emphasis added)). 

The majority thus loses sight of the Texas law at issue in this case: 

Vote.org did not challenge the materiality of § 13.122(a); it challenged the 

materiality of § 13.143(d-2). Even if Vote.org’s app might have implicated

§ 13.122(a), the wet-signature requirement—codified in a separate provision 

of the Texas Election Code—has nothing to do with those warnings. Again, 

it requires only that “a copy of the original registration application containing 

the voter’s original signature” be submitted to the registrar within four 

business days of “the transmission by telephonic facsimile machine.” Tex. 

Elec. Code Ann. § 13.143(d-2) (West 2023). 

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Because the wet-signature requirement is unrelated to the warning

statements in § 13.122(a) on which the majority rests its materiality holding, 

I agree with the district court and see nothing to sustain the wet-signature 

requirement: No evidence in the record supports—or even peripherally

suggests—that the wet signature itself is material in determining whether a 

Texan is qualified to vote. Quite the contrary. Texas officials explicitly 

drafted § 13.143(d-2) to prevent the use of Vote.org’s e-sign tool. 

Consequently, the wet-signature requirement violates the Materiality 

Provision and the district court correctly enjoined its enforcement. 

IV.

I would AFFIRM the district court’s grant of summary judgment for 

Vote.org on its statutory claim, and, therefore, I would not reach the

constitutional claims. 

Case: 22-50536 Document: 00517004327 Page: 51 Date Filed: 12/15/2023