United States Court of Appeals

for the Fifth Circuit

No. 20-50774

Doctor George Richardson; Rosalie Weisfeld; 

MOVE Texas Civic Fund; 

League of Women Voters of Texas; 

Austin Justice Coalition; 

Coalition of Texans with Disabilities, 

Plaintiffs—Appellees,

versus

Texas Secretary of State, Ruth R. Hughs, 

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Texas

No. 5-19-CV-963

Before Higginbotham, Smith, and Oldham, Circuit Judges.

Jerry E. Smith, Circuit Judge:

The United States is a few days from the November 3, 2020, General 

Election. Texas officials are preparing for a dramatic increase of mail-in 

voting, driven by a global pandemic.1

 One of their many pressing concerns is 

1 See, e.g., John Engel, ‘I’m worried’: Texas election officials prepare for recordbreaking mail-in voting, KXAN (Aug. 13, 2020), https://www.kxan.com/news/texasUnited States Court of Appeals

Fifth Circuit

FILED

October 19, 2020

Lyle W. Cayce

Clerk

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to ensure the integrity of the ballot by adhering to the state’s election-security 

procedures. And the importance of electoral vigilance rises with the increase

in the number of mail-in ballots, a form of voting in which “the potential and 

reality of fraud is much greater . . . than with in-person voting.” Veasey v. 

Abbott, 830 F.3d 216, 239 (5th Cir. 2016) (en banc). “Absentee ballots remain 

the largest source of potential voter fraud . . . .”2

In a well-intentioned but sweeping order issued less than two months 

before the election,3 however, the district court minimizes Texas’s interest 

in preserving the integrity of its elections and takes it upon itself to rewrite

the Legislature’s mail-in ballot signature-verification and voter-notification 

procedures. At a time when the need to ensure election security is at its 

zenith, the district court orders that, if the Secretary of State does not adopt 

its preferred procedures, election officials must stop altogether rejecting ballots with mismatched signatures.

Because Texas’s strong interest in safeguarding the integrity of its 

elections from voter fraud far outweighs any burden the state’s voting procedures place on the right to vote, we stay the injunction pending appeal.

I.

Though it is not constitutionally required to do so,4 Texas offers qualifying citizens the option to vote by mail. See TEX. ELEC. CODE §§ 82.001–

politics/im-worried-texas-election-officials-prepare-for-record-breaking-mail-in-voting/.

2 Comm’n on Fed. Elections Reform, Building Confidence in U.S. Elections 46 

(2005) (bipartisan commission).

3 Richardson v. Hughs, No. 5-19-CV-963, 2020 WL 5367216 (W.D. Tex. Sept. 8, 

2020).

4 See McDonald v. Bd. of Election Comm’rs of Chi., 394 U.S. 802, 807–08 (1969); 

Tex. Democratic Party v. Abbott (“TDP-II”), No. 20-50407, 2020 U.S. App. LEXIS 32503, 

at *32 (5th Cir. Oct. 14, 2020) (revised opinion) (published).

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004.5 Specifically, the state extends the privilege to over-65 voters, the disabled, and those either in jail or otherwise absent from their county on election day. Id. To further its compelling interest in safeguarding the integrity 

of the election process, Texas conditions the vote-by-mail privilege on compliance with various safeguards. One of those, at issue here, is signature

verification.

To vote by mail, a voter must first apply for a mail-in ballot.

§ 84.001(a). The applicant must sign, § 84.001(b), and timely submit the 

application by mail to the early voting clerk, § 84.001(d). A witness may sign 

the application if the applicant cannot sign because of physical disability or 

illiteracy. § 1.011(a). Once a voter applies and is deemed eligible to vote by 

mail, the Early Voting Clerk must provide the balloting materials to the voter 

by mail. §§ 86.001(b), 86.003(a). Included in those materials are the ballot, 

ballot envelope, and carrier envelope. § 86.002(a). 

After receiving those materials, a voter who wishes to cast a ballot 

must fill out the ballot, seal the ballot envelope, place it in the carrier envelope, § 86.005(c), and timely return it, § 86.007. Additionally, the voter must 

sign6 the certificate on the carrier envelope, § 86.005(c), which “certif[ies] 

that the enclosed ballot expresses [the voter’s] wishes independent of any 

dictation or undue persuasion by any person,” § 86.013(c).

The Early Voting Ballot Board (“EVBB”) is responsible for processing the results of early voting. § 87.001.7

 The Early Voting Clerk may 

5 All references to statutory sections in this opinion are to the Texas Election Code 

as effective for the 2020 General Election.

6 As with the signature required for the initial application, a witness may sign if the 

voter cannot sign for reason of physical disability or illiteracy. § 1.011(a).

7 The EVBB in each county has at least three members. § 87.002(a). In a general 

election, the Code guarantees representation on the board to any political party with a 

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appoint, in addition to the EVBB, a Signature Verification Committee 

(“SVC”). § 87.027(a).8 Upon receipt of the mail-in ballots, the Early Voting 

Clerk must timely deliver the ballots to the SVC or, if no SVC is appointed, 

to the EVBB. §§ 87.027(h), 87.021(2), 87.022–024. If no SVC is appointed, 

the EVBB receives and reviews each ballot to determine whether to accept it. 

§ 87.041(a).

Relevant here, the EVBB may accept a ballot “only if . . . neither the 

voter’s signature on the ballot application nor the signature on the carrier 

envelope certificate is determined to have been executed by a person other 

than the voter, unless signed by a witness . . . .” § 87.041(b)(2). In making 

that determination, the EVBB compares the two signatures and “may also 

compare the signatures with any two or more signatures of the voter made 

within the preceding six years and on file with the county clerk or voter registrar.” § 87.041(e). If the EVBB determines that a ballot is not acceptable—

as a result of either the signature-verification procedure or another of 

§ 87.041(b)’s requirements—the ballot is rejected, and the vote is not 

counted. §§ 87.041(d), 87.043(c).

If the Early Voting Clerk appoints an SVC, the committee receives the 

ballots and makes the signature-verification determination before delivering 

the ballots to the EVBB. § 87.027(h)–(i). The SVC follows a similar, though 

slightly more robust, procedure for verifying signatures than does the EVBB. 

Compare § 87.027(i) with § 87.041(b)(2). The Code instructs the SVC to 

nominee on the ballot. § 87.002(c). Members must swear an oath attesting that, among 

other things, they “will work only in the presence of a member of a political party different 

from [their] own” when ballots are present. § 87.006(a).

8 Although the appointment of an SVC typically is discretionary, the Early Voting 

Clerk must appoint an SVC if he receives a timely written request from fifteen or more 

voters. § 87.027(a–1). SVCs have at least five members. § 87.027(d). Like the EVBB, the 

SVC must have representation that is politically diverse. Id.

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compare the two signatures on the ballot application and the carrier envelope

certificate “to determine whether the signatures are those of the voter.”

§ 87.027(i). It also permits the SVC to aid its determination by comparing 

the two signatures with “any two or more signatures of the voter made within 

the preceding six years and on file with the county clerk or voter registrar 

. . . .” Id. A determination that the signatures do not belong to the voter 

“must be made by a majority vote of the committee’s membership.” Id.9

Once the SVC has made its signature-verification determinations, the 

committee’s chair delivers the ballots to the EVBB. Id. The EVBB follows 

the same procedures it otherwise would, except that it is bound by the SVC’s 

determination that the signatures belong to the voter. § 87.027(j). Conversely, if the EVBB believes that the SVC erroneously determined that the 

ballot failed the signature-verification procedure, it may reverse that determination by a majority vote and accept the ballot. Id. Thus, if either body 

determines that the signatures belong to the voter, that determination is final, 

and the ballot may not be rejected on that basis.

If the EVBB rejects a ballot, it must note the reason on the carrier 

envelope. § 87.043(d). When its review is complete, the EVBB places the 

rejected ballots into an envelope or envelopes, records the number of rejected 

ballots in the envelope, and seals it. § 87.043(a). The EVBB then delivers 

the rejected ballots to the general custodian of election records. § 87.043(c).

No later than ten days after the date of the election, the EVBB must 

provide written notice of its rejection to the voter at the address on the ballot 

application. § 87.0431(a). Not more than thirty days after the election, the 

9 There is a small exception where the committee is comprised of twelve or more 

members, in which case the clerk may designate subcommittees. § 87.027(l). If that 

occurs, the signature-verification determination may be made by a majority vote of the 

subcommittee, as distinguished from the larger body. Id.

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Early Voting Clerk must notify the attorney general of the EVBB’s rejections

and provide the attorney general with certified copies of the rejected voters’ 

carrier envelopes and corresponding ballot applications. § 87.0431(b)(3). 

Though a voter must receive notice that his ballot was rejected, the Code 

does not require an opportunity to challenge that decision.10

II.

The plaintiffs challenged Texas’s absentee-ballot system in August 

2019, suing the Secretary of State, Ruth Hughs; the Brazos County Elections 

Administrator, Trudy Hancock; and the City of McAllen’s Secretary, Perla 

Lara. The plaintiffs—a group comprised of two persons who had absentee 

ballots rejected in previous elections and organizations involved in voter registration, education, outreach, and support—raised several claims. They

maintain that Texas’s signature-comparison and voter-notification procedures violate (1) the Due Process Clause of the Fourteenth Amendment, 

(2) the Equal Protection Clause of the Fourteenth Amendment, (3) the 

Americans with Disabilities Act, and (4) the Rehabilitation Act of 1973.

The district court denied defendants’ motions to dismiss, and the 

parties conducted discovery, which lasted until May 2020, after which both 

sides moved for summary judgment. In August 2020, the district court 

requested supplemental briefing regarding what relief it should provide if it 

found for the plaintiffs on the merits. 

Describing their proposal as a “narrowly tailored remedy,” the plaintiffs asked for an injunction requiring election officials to take various rapid

affirmative steps to provide notice to voters whose ballots have been rejected,

10 See § 87.127(a) (providing that “a county election officer . . . may petition a district court for injunctive or other relief” if the officer “determines a ballot was incorrectly 

rejected or accepted”).

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to loosen absentee voter-identification requirements, and to implement an 

elaborate and expedited process for challenges by voters with rejected ballots. 

If the court found that remedy to be “impossible, impractical, or overly burdensome,” it instead should enjoin officials from engaging in a signaturecomparison process at all.

The Secretary took several actions over recent months to facilitate the 

ability of qualifying voters to vote by mail. She provided guidance to local 

election officials, recommending that they notify voters of rejected ballots as 

quickly as possible. She reminded election officials of how early they may 

convene EVBBs. She also alerted local election officials that they may examine not only the signatures on a voter’s application and carrier envelope, but 

also other signatures on file and made within the last six years. She published 

a letter providing mail-in voters with guidance on how properly to complete 

and send their ballots and giving notice of the signature-comparison process.

The district court granted the plaintiffs’ summary judgment motion 

in part. In its detailed and lengthy memorandum opinion and order, the court 

“focus[ed] its analysis only on certain Plaintiffs’ claims against” Secretary 

Hughs, addressing only the due process and equal protection claims of Weisfeld and the Coalition of Texans with Disabilities. Richardson, 2020 WL 

5367216, at *5.

The district court issued an injunction adopting many of the plaintiffs’ 

proposed changes to Texas’s election procedures. See id. at *38–39. The 

injunction contained three main provisions pertaining to the 2020 election. 

Id. at *37–39. First, the court required the Secretary to issue an advisory, 

within ten days, notifying local election officials of the injunction. Id. at *38. 

The notification must inform them that rejecting ballots because of mismatching signatures is unconstitutional unless the officials take actions that 

go beyond those required by state law. Id.

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Second, the district court gave the Secretary a menu of actions that 

she must take. The Secretary must either issue an advisory to local election 

officials requiring them to follow the court’s newly devised signatureverification and voter-notification procedures, or else promulgate an advisory 

requiring that officials cease rejecting ballots with mismatched signatures 

altogether. See id.

Third, the court mandated that the Secretary take action against any 

election officials who fail to comply with the district court’s newly minted 

procedures. Id. at *39. Deeming those dictates “appropriate for the November 2020 elections,” the court stated that it would hold a hearing after the 

election to consider imposing additional long-term election procedures. 

Id. at *45.

On September 9, the Secretary filed a notice of appeal and a motion 

requesting the district court to stay its order pending appeal. The district 

court denied a stay on September 10. On September 11, the Secretary filed 

in this court an emergency motion for a stay pending appeal. On September 11, this panel granted a temporary administrative stay in order to consider 

the motion.

III.

“A stay is not a matter of right, even if irreparable injury might otherwise result.” Tex. Democratic Party v. Abbott (“TDP-I”), 961 F.3d 389, 397 

(5th Cir. 2020) (Smith, J.) (quoting Nken v. Holder, 556 U.S. 418, 433

(2009)). “Whether to grant a stay is committed to our discretion.” Id. (citing Thomas v. Bryant, 919 F.3d 298, 303 (5th Cir. 2019)). We assess

“(1) whether the stay applicant has made a strong showing that he is likely to 

succeed on the merits; (2) whether the applicant will be irreparably injured 

absent a stay; (3) whether issuance of the stay will substantially injure the 

other parties interested in the proceeding; and (4) where the public interest 

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lies.” Nken, 556 U.S. at 426. “The first two factors are the most critical.” 

Valentine v. Collier, 956 F.3d 797, 801 (5th Cir. 2020) (per curiam). “The 

proponent of a stay bears the burden of establishing its need.” Clinton v. 

Jones, 520 U.S. 681, 708 (1997).

The Secretary is likely to succeed on the merits. At the very least, she 

is likely to show that the district court erred in its analysis of plaintiffs’ claims. 

As we recently noted in two election-related opinions ruling on motions for 

stays pending appeal, because the Secretary is likely to succeed on one 

ground, we need not address the others.11 We therefore express no opinion

on the Secretary’s arguments concerning standing or whether sovereign 

immunity bars the present suit against her. We do, however, examine 

whether the district court’s remedy is barred by sovereign immunity. 

A.

The Secretary contends that she is likely to succeed in showing that 

Texas’s signature-verification procedures are constitutional. In particular, 

she asserts that (1) those procedures do not implicate the plaintiffs’ due process rights, (2) the Anderson/Burdick framework—as distinguished from

Mathews v. Eldridge, 424 U.S. 319, 335 (1976)—provides the appropriate test 

for the due process claims, and (3) the signature-verification procedures 

withstand scrutiny under Anderson/Burdick. The Secretary will likely prevail 

on each point.

1.

We must first determine whether the plaintiffs have alleged any cog11 See Tex. League of United Latin Am. Citizens v. Hughs (“Tex. LULAC”), 

No. 20-50867, 2020 WL 6023310, at *4 (5th Cir. Oct. 12, 2020) (published); Tex. All. for 

Retired Ams. v. Hughs, No. 20-40643, 2020 WL 5816887, at *2 (5th Cir. Sept. 30, 2020)

(published).

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nizable interests that warrant due process analysis.12 They have not.

The plaintiffs bring procedural due process claims,

13 which require 

two inquiries: (1) “whether there exists a liberty or property interest which 

has been interfered with by the State” and (2) “whether the procedures 

attendant upon that deprivation were constitutionally sufficient.” Kentucky 

Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989). Because the plaintiffs 

“invoke [the Due Process Clause’s] procedural protection,” they had the 

burden in the district court of establishing a cognizable liberty or property 

interest. Wilkinson v. Austin, 545 U.S. 209, 221 (2005).14

The Fourteenth Amendment says that states may not “deprive any 

person of life, liberty, or property, without due process of law.” In its

conscientious 103-page order, the district court didn’t cite the Fourteenth 

Amendment—the sole constitutional provision it purported to interpret on 

the merits—even once. It’s no surprise, then, that the court also failed to 

identify the category of interest—life, liberty, or property—at stake in the 

12 The Secretary asserts in a heading that “Texas’s signature verification laws [do 

not] implicate . . . the right to vote,” but she does not provide any precedent suggesting 

that the plaintiffs have failed to make out an equal protection claim. This is likely because 

the Supreme Court has recognized that many of its election cases have “appl[ied] the 

‘fundamental rights’ strand of equal protection analysis” to voting restrictions. Anderson 

v. Celebrezze, 460 U.S. 780, 786 n.7 (1983).

13 See Richardson, 2020 WL 5367216, at *3 (describing the plaintiffs’ demand for a 

“pre-rejection notice and an opportunity to cure to voters whose ballots are rejected on the 

basis of a perceived signature mismatch”). Although the district court avoided labeling

much of its due process analysis as “procedural,” it acknowledged that it applied the test 

for a “procedural due process analysis.” Id. at *21 n.27.

14 Because she requests a stay, the Secretary has the burden to show that she is 

likely to succeed on the merits. Clinton, 520 U.S. at 708. The district court, however, 

granted summary judgment to the plaintiffs. Richardson, 2020 WL 5367216, at *46. Because we review summary judgments de novo, we must ask whether the Secretary is likely 

to show that the plaintiffs failed to meet their burden on their summary judgment motions.

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right to vote. The plaintiffs’ brief issimilarly silent. And this court has never 

squarely addressed the issue.15

It is important, however, to identify a cognizable interest under the 

Due Process Clause, because we often dismiss due process claims where

plaintiffs fail to identify a cognizable interest16 and because “[t]he types of 

interests . . . for Fourteenth Amendment purposes are not unlimited.” 

Thompson, 490 U.S. at 460. No protection of life is raised, so we examine 

property and liberty interests.

a.

Property interests “are not created by the Constitution.” Bd. of 

15 We have conducted due process analyses in two cases that involved voting. In 

United States v. Atkins, 323 F.2d 733, 743 (5th Cir. 1963), we concluded that a state “could 

not deprive a person of the right to register to vote on the basis of secret evidence” without 

due process. In Williams v. Taylor, 677 F.2d 510, 515 (5th Cir. 1982), we applied the Eldridge

test to a felony-disenfranchisement statute, concluding that the due process claim was 

“without merit.” Neither decision expressly concluded that the right to vote is a liberty or 

property interest. In fact, in Williams we concluded that a felon’s “interest in retaining his 

right to vote is constitutionally distinguishable from the ‘right to vote’ claims of individuals 

who are not felons.” Id. at 514. 

Because neither opinion squarely addressed voting as a cognizable due process 

interest, the rule of orderliness does not require us to conclude that voting constitutes a 

cognizable due process interest. Thomas v. Tex. Dep’t of Criminal Justice, 297 F.3d 361, 370 

n.11 (5th Cir. 2002) (“Where an opinion fails to address a question squarely, we will not 

treat it as binding precedent.”). Even if our previous decision “implicitly” relied on the 

presence of a cognizable interest, that assumption is not binding if the adverse party “did 

not challenge” and “we did not consider” that issue. Id. To the extent that “[w]e have 

yet to definitively decide whether, pursuant to our rule of orderliness, a panel is bound by 

a prior panel’s holding if the prior panel did not consider or address a potentially dispositive 

argument made before the later panel,” we still address the Secretary’s argument in order 

to determine her likelihood of success on the merits. See United States v. Juarez-Martinez, 

738 F. App’x 823, 825 (5th Cir. 2018).

16 See,e.g., Nutall v. Maye, 515 F. App’x 252, 254 (5th Cir. 2012) (per curiam); Gant 

v. Riter, 182 F. App’x 348 (5th Cir. 2006) (per curiam).

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Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972). Instead, they “are 

created and their dimensions are defined by existing rules or understandings 

that stem from an independent source such as state law.” Id. For instance, 

courts sometimes consider welfare payments and continued employment to 

be property interests. Id. at 578.

We have found no court that has held that the right to vote—much 

less the alleged right to vote by mail—is a property interest.17 Neither the 

plaintiffs nor the district court expressly asserts that the right to vote is a 

property interest.18 In fact, the complaint omits the word “property” when 

quoting the Fourteenth Amendment. Given the absence of argument or 

precedent on point, the Secretary is likely to show that plaintiffs alleged no 

cognizable property interest.

b.

Several district courts have concluded that the right to vote is a liberty 

interest. See, e.g., Raetzel, 762 F. Supp. at 1357. Liberty interests arise from 

either “the Constitution itself, by reason of guarantees implicit in the word 

liberty,” or from “an expectation or interest created by state laws or policies.” Wilkinson, 545 U.S. at 221 (internal quotation marks omitted).

17 Courts instead refer to the right to vote as a “liberty interest.” Raetzel v. 

Parks/Bellemont Absentee Election Bd., 762 F. Supp. 1354, 1357 (D. Ariz. 1990) (cleaned up).

18 The plaintiffs say that in Atkins, 323 F.2d at 743, we referred to the right to vote 

as a “private interest.” Atkins described a formulation of a due process test, which predated Eldridge and examined the “private interest” at issue. Atkins, 323 F.2d at 743. Atkins

described voting as an “important and powerful privilege[],” not as a property interest. Id. 

Likewise, the plaintiffs’ citations to various cases noting the importance of voting under 

Eldridge are also inapposite. See, e.g., Williams, 677 F.2d at 514–15. Though those cases 

reiterate the importance of the right to vote, none purports to determine whether the right 

to vote constitutes a cognizable property interest under the Due Process Clause. 

See, e.g., id.

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Liberty interests that arise from the Constitution extend beyond 

“freedom from bodily restraint.” Roth, 408 U.S. at 572. They also include

the right to contract, to engage in “the common occupations of life,” to gain 

“useful knowledge,” to marry and establish a home to bring up children, to 

worship God, and to enjoy “those privileges long recognized . . . as essential 

to the orderly pursuit of happiness of free men.” Id. On the other hand, 

state-created liberty interests are “generally limited to freedom from restraint . . . .” Sandin v. Conner, 515 U.S. 472, 484 (1995).

19 This is “a narrow 

category of state-created liberty interests.” Jordan v. Fisher, 823 F.3d 805, 

810 (5th Cir. 2016). The plaintiffs cite no circuit precedent suggesting that 

state-created liberty interests exist outside the context of bodily confinement.

There are two problems with describing the right to vote as a liberty 

interest. First, the district court styled it as a state-created interest, concluding that, because “Texas has created a mail-in ballot regime,” it must now 

provide “due process protections.” Richardson, 2020 WL 5367216, at *21.20 

But precedent demonstrates that state-created liberty interests are limited to 

particular sorts of freedom from restraint. Sandin, 515 U.S. at 484. And the

plaintiffs cite no binding authority indicating that state-created liberty interests exist outside the context of bodily confinement. Thus, the Secretary is 

likely to show that voting does not implicate any state-created liberty interest 

under the Due Process Clause.

Second, setting aside the district court’s treatment of the right at 

19 For instance, there is a liberty interest in “avoiding withdrawal of [a] statecreated system of good-time credits.” Wilkinson, 545 U.S. at 221. 

20 Verifying its reliance on a state-created liberty interest, the district court relied 

on Paul v. Davis, 424 U.S. 693 (1976)—particularly its examination of interests that are 

“initially recognized and protected by state law.” Richardson, 2020 WL 5367216, at *20 

(quoting Paul, 424 U.S. at 710).

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stake, it might seem intuitive, as the plaintiffs suggest, that the right to vote 

is a liberty interest that arises from the Constitution. After all, the right to 

vote is a fundamental constitutional right. McDonald, 394 U.S. at 807. But 

that helpsthe plaintiffs with their equal protection claim, not their procedural 

due process claim.21 For procedural due process, the question is not whether 

the plaintiffs assert a fundamental right, but instead whether the right they 

assert is a liberty interest.

Besides describing the right to vote as fundamental, the plaintiffs have 

not explained what there is about the right to vote that makes it a liberty 

interest. The right to vote does not immediately resemble the rights described in Roth, 408 U.S. at 572. The plaintiffs cite no circuit or Supreme 

Court precedent extending the label of “liberty interest” to the right to vote. 

The Sixth Circuit, the only circuit to squarely address this issue,22 held that 

the right to vote does not constitute a liberty interest.23

21 See Memphis A. Phillip Randolph Inst. v. Hargett, No. 3:20-CV-374, 2020 WL 

5095459, *11 (M.D. Tenn. Aug. 28, 2020) (“[T]he right to vote is fundamental, but it is 

not a ‘liberty’ interest for purposes of procedural due process. . . .”), aff’d, No. 20-6046, 

2020 WL 6074331 (6th Cir. Oct. 15, 2020) (published).

22 The Secretary cites Johnson v. Hood, 430 F.2d 610 (5th Cir. 1970). Johnson concluded that “the right to vote for a candidate for a state office achieved by state action . . . 

is not a denial of a right of property or liberty secured by the due process clause.” Id. at 612

(cleaned up). Though Johnson squarely addressed the issue of cognizable liberty and property interests, it focused solely on the right to vote in a state election, which Supreme Court 

precedent at the time indicated was “not given by the Federal Constitution, or by any of its 

amendments.” Pope v. Williams, 193 U.S. 621, 632 (1904), overruled by Dunn v. Blumstein, 

405 U.S. 330 (1972). Some courts have conducted due process analyses based on the right 

to vote but have done so without examining whether it constitutes a liberty interest. See, 

e.g., Lemons v. Bradbury, 538 F.3d 1098, 1104 (9th Cir. 2008).

23 See League of Women Voters v. Brunner, 548 F.3d 463, 479 (6th Cir. 2008) (“That 

Ohio’s voting system impinges on the fundamental right to vote does not, however, 

implicate procedural due process . . . . [T]he League has not alleged a constitutionally protected interest.”); see also Memphis A. Phillip Randolph Inst., 2020 WL 5095459, at *11 

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Though the plaintiffs will likely run into trouble in establishing that 

the right to vote is a liberty interest, they will have even greater difficulty 

showing that an alleged right to vote by mail constitutes a liberty interest. In 

the context of an absentee ballot statutory scheme, “[i]t is thus not the right 

to vote that is at stake here but a claimed right to receive absentee ballots.” 

dural due process under Brunner or pertinent Supreme Court case law.”); Lecky v. Va. State 

Bd. of Elections, 285 F. Supp. 3d 908, 918 (E.D. Va. 2018) (stating that “[p]laintiffs here 

point to no authority actually supporting the existence of a procedural due process claim in 

this context of election irregularities.”).

The Sixth Circuit recently affirmed—without deciding the issue of a cognizable 

liberty interest—a district court that concluded there was no cognizable liberty interest at 

stake in a due process challenge to signature-verification procedures. Memphis A. Philip 

Randolph Inst. v. Hargett, No. 20-6046, 2020 WL 6074331 (6th Cir. Oct. 15, 2020). Judge 

Moore dissented, claiming that the Sixth Circuit had previously established that statecreated liberty interests exist outside the context of bodily confinement any time “a state 

places substantive limitations on official discretion.” Id. at *20 (Moore, J., dissenting) 

(cleaned up) (quoting Tony L. By and Through Simpson v. Childers, 71 F.3d 1182, 1185 (6th 

Cir. 1995)).

There are two problems with that analysis. First, the Sixth Circuit authority that the dissent relied on concluded that there was no cognizable liberty interest at issue 

in those cases. See Childers, 71 F.3d at 1186 (“The claim of a state-created liberty interest 

fails.”); Pusey v. City of Youngstown, 11 F.3d 652, 656 (6th Cir. 1993) (“The Ohio victim 

impact law does not create a liberty interest.”). Although those cases contemplate extending state-created liberty interests beyond the context of bodily confinement, neither did so. 

Thus, any persuasive value is diminished. If anything, the Sixth Circuit’s decision to 

decline to extend the label of state-created liberty interest to situations outside the context 

of bodily confinement demonstrates the tenuous nature of that extension of Supreme Court 

precedent. 

Second, both cases that the dissent cites rely on two Supreme Court decisions 

addressing liberty interests in the context of bodily confinement for their “substantive 

limitations on official discretion” standard. See Pusey, 11 F.3d at 656 (citing Thompson, 

490 U.S. at 460, and Olim v. Wakinekona, 461 U.S. 238, 250 (1983)); Childers, 71 F.3d 

at 1185 (citing Olim, 461 U.S. at 249, and Thompson, 490 U.S. at 462). By relying on precedent, in which the Court dealt only with cognizable interests in the context of bodily confinement, the Sixth Circuit was “flirting with . . . a novel alteration of [] constitutional 

doctrine.” Alvarez v. City of Brownsville, 904 F.3d 382, 397 (5th Cir. 2018) (Ho, J., concurring), cert. denied, 139 S. Ct. 2690 (2019). We decline to adopt such an extension.

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McDonald, 394 U.S. at 807. It would “stretch[] the concept too far to suggest 

that a person is deprived of liberty” when the Court has said that he has no 

right to the object of his alleged liberty interest. Roth, 408 U.S. at 572

(cleaned up).

Given the failure of the plaintiffs and the district court to assert that 

voting—or, for that matter, voting by mail—constitutes a liberty interest, 

along with the absence of circuit precedent supporting that position, the 

Secretary is likely to prevail in showing that the plaintiffs’ motion for summary judgment on their due process claim should have been denied.

c.

Finally, we reject the district court’s reasoning regarding any statecreated liberty interest. The court concluded that because “Texas has created a mail-in ballot regime . . . the State must provide those voters with 

constitutionally-sufficient due process protections before rejecting their 

ballots.” Richardson, 2020 WL 5367216, at *21. That notion originated in 

Raetzel, in which the District of Arizona acknowledged that absentee voting 

“is a privilege and a convenience,” and yet concluded—without citation—

“[y]et, such a privilege is deserving of due process.” Raetzel, 762 F. Supp. 

at 1358. In its defense, Raetzel’s reasoning resembles the principle animating 

Goss v. Lopez, 419 U.S. 565 (1975). Goss concluded that, “[h]aving chosen to 

extend the right to an education to people of appellees’ class generally, Ohio 

may not withdraw that right on grounds of misconduct, absent fundamentally 

fair procedures . . . .” Goss, 419 U.S. at 574. Although several district courts

have regurgitated Raetzel’s reasoning,24 the plaintiffs and the district court

24 See Saucedo v. Gardner, 335 F. Supp. 3d 202, 217 (D.N.H. 2018); Martin v. Kemp, 

341 F. Supp. 3d 1326, 1338 (N.D. Ga. 2018), appeal dismissed sub nom. Martin v. Sec’y of 

State of Georgia, 18-14503-GG, 2018 WL 7139247 (11th Cir. Dec. 11, 2018); Zessar v. 

Helander, No. 05 C 1917, 2006 WL 642646, at *5 (N.D. Ill. Mar. 13, 2006); Frederick v. 

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point to no circuit court that has embraced it. 

And properly so. There is a problem with grafting Goss’s reasoning 

onto the voting context: Goss found two cognizable due process interests, 

namely a “property interest in educational benefits” and a “liberty interest 

in reputation.” Goss, 419 U.S. at 576. In context, Goss’s language about the 

state’s “[h]aving chosen to extend” benefits and being thus bound by due 

process came from its analysis of a “protected property interest.” Id. at 579

(emphasis added). Raetzel, however, concluded that “the right to vote is a 

‘liberty’ interest.” Raetzel, 762 F. Supp. at 1357 (emphasis added). Thus, 

Raetzel grafted the Supreme Court’s reasoning concerning property interests 

onto a claimed liberty interest without providing any authority justifying that

extension. We decline to adopt Raetzel’s extrapolation of Supreme Court 

precedent.

The Secretary is likely to show that the plaintiffs have alleged no cognizable liberty or property interest that could serve to make out a procedural 

due process claim. The Secretary is therefore likely to succeed in the dismissal of plaintiffs’ due process claims.

2.

Even supposing that voting is a protected liberty or property interest, 

the Secretary is likely to show that the district court used the wrong test for 

the due process claim. The court applied Eldridge, 424 U.S. at 335, which 

provides the “general[]” test for determining what process is due.25 On the 

Lawson, No. 119CV01959SEBMJD, 2020 WL 4882696, at *12 (S.D. Ind. Aug. 20, 2020).

25 Under Eldridge, 424 U.S. at 335, “identification of the specific dictates of due 

process generally requires” a court to consider three factors: (1) “the private interest that 

will be affected by the official action,” (2) “the risk of an erroneous deprivation of such 

interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards,” and (3) “the Government’s interest, including the function 

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other hand, Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. 

Takushi, 504 U.S. 428 (1992) announce a test to address “[c]onstitutional 

challenges to specific provisions of a State’s election laws” under “the First 

and Fourteenth Amendments.” Anderson, 460 U.S. at 789.

26 Neither Anderson nor Burdick, however, dealt with procedural due process claims, and both 

instead based their approach on the “fundamental rights strand of equal protection analysis.” Id. at 787 n.7 (cleaned up).

For several reasons, the Anderson/Burdick framework provides the 

appropriate test for the plaintiffs’ due process claims. First, because the

plaintiffs challenge Texas’s election laws under the Due Process Clause of 

the Fourteenth Amendment, Richardson, 2020 WL 5367216, at *19, we must 

use the test that the Supreme Court prescribed for “[c]onstitutional challenges to specific provisions of a State’s election laws” under “the First and 

Fourteenth Amendments,” Anderson, 460 U.S. at 789. As several Justices 

have noted, “[t]o evaluate a law respecting the right to vote—whether it 

governs voter qualifications, candidate selection, or the voting process—we use 

the approach set out in Burdick v. Takushi.” Crawford, 553 U.S. at 204 (Scalia, J., concurring) (emphasis added). The district court concluded otherwise 

only by relying on its own word associations—with abstract concepts such as

“procedures” and “procedural safeguards,” Richardson, 2020 WL 5367216, 

at *20—and ignoring the Supreme Court’s command that lower courts 

involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”

26 The so-called Anderson/Burdick framework requires a “two-track approach.” 

Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 205 (2008) (Scalia, J., concurring). If a 

court deems a voting law to be a “severe” burden on the rights of voters, “the regulation 

must be narrowly drawn to advance a state interest of compelling importance.” Burdick, 

504 U.S. at 434 (cleaned up). Conversely, if a court deems a voting law to be a “reasonable, 

nondiscriminatory restriction[]” on the rights of voters, “the State’s important regulatory 

interests are generally sufficient to justify the restrictions.” Id. (cleaned up).

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“considering a [Fourteenth Amendment] challenge to a state election law 

must” apply the Anderson/Burdick framework, Burdick, 504 U.S. at 434

(emphasis added).

Second, our sister circuits—some of which neglected to examine 

whether voting constitutes a cognizable liberty or property interest—apply 

Anderson/Burdick to all Fourteenth Amendment challenges to election 

laws.

27 Although several district courts have applied Eldridge to due process 

challenges of signature-comparison procedures, none of those courts provided reasoning for itsselection of the Eldridgetest.28 Moreover, two of those 

opinions cite Burdick in their due process analyses,29 and one—though still 

applying Eldridge—even agreed that Anderson/Burdick applies to “all First 

and Fourteenth Amendment challenges to state election laws.” Frederick, 

2020 WL 4882696, at *16 (emphasis added).30

Third, even if, arguendo, we had carte blanche to decide which test 

applies, the Anderson/Burdick approach is better suited to the context of elecion laws than is the more general Eldridge test. “There must be a substantial 

27 See, e.g., Weber v. Shelley, 347 F.3d 1101, 1105–07 (9th Cir. 2003) (analyzing a due 

process challenge to a county’s use of touch screen voting systems under the Anderson/-

Burdick framework); Obama for Am. v. Husted, 697 F.3d 423, 430 (6th Cir. 2012) (concluding that Anderson/Burdick serves as “a single standard for evaluating challenges to voting 

restrictions”); Acevedo v. Cook Cty. Officers Electoral Bd., 925 F.3d 944, 948 (7th Cir. 2019)

(concluding that Anderson/Burdick applies “to all First and Fourteenth Amendment challenges to state election laws”).

28 See Saucedo, 335 F. Supp. 3d at 214; Martin, 341 F. Supp. 3d at 1338; Zessar, 

2006 WL 642646, at *7; Frederick, 2020 WL 4882696, at *12.

29 See Frederick, 2020 WL 4882696, at *12 (citing Burdick, 504 U.S. at 433); Zessar, 

2006 WL 642646, at *7 (citing Burdick, 504 U.S. at 434)

30 In Williams, 677 F.2d 514, we applied the Eldridge test when examining a felonydisenfranchisement statute. Williams, however, predated Anderson and Burdick and was 

abrogated by their laying out a more specific test for election laws.

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regulation of elections if they are to be fair and honest and if some sort of 

order, rather than chaos, is to accompany the democratic processes.” Storer

v. Brown, 415 U.S. 724, 730 (1974). And “it is the state legislature—not . . . 

federal judges—that is authorized to establish the rules that govern” 

elections.31

The flaw in using Eldridge is that election laws, by nature, “inevitably 

affect[] . . . the individual’s right to vote.” Anderson, 460 U.S. at 788. Under 

Eldridge, however, courts may accord the private interest at stake, namely the 

right to vote, “significant weight.” Richardson, 2020 WL 5367216, at *21. 

Therefore, the Eldridge test would inevitably result in courts’ “weigh[ing]

the pros and cons of various balloting systems,” Weber, 347 F.3d at 1107, 

thereby “t[ying] the hands of States seeking to assure that elections are operated equitably and efficiently,” Burdick, 504 U.S. at 433. Unlike Eldridge, the 

Anderson/Burdick approach recognizes that “the state’s important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory 

restrictions.” Anderson, 460 U.S. at 788. Because Anderson/Burdick—unlike 

Eldridge—appropriately accounts for the state’s interest in regulating voting, 

it provides the appropriate test for procedural due process claims challenging

election laws.

By using Eldridge, the district court’s “judicial supervision of the 

election process . . . flout[s] the Constitution’s express commitment of the 

task to the States.” Crawford, 553 U.S. at 208 (Scalia, J., concurring) (citing 

U.S. Const. art. I, § 4). The Secretary is thus likely to show that the dis31 Tex. LULAC, 2020 WL 6023310, at *10 (Ho, J., concurring); see also U.S.

Const. art. I, § 4, cl. 1 (“The Times, Places and Manner of holding Elections for Senators 

and Representatives, shall be prescribed in each State by the Legislature thereof . . . .”); 

Weber, 347 F.3d at 1107 (“[I]t is the job of democratically-elected representatives to weigh 

the pros and cons of various balloting systems.”).

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trict court applied the wrong test in analyzing the due process claims.

3.

The Secretary contends that Texas’s signature-verification procedures withstand scrutiny under Anderson/Burdick. The parties appear to 

agree that Anderson/Burdick provides the appropriate framework to analyze

the equal protection claims, and we have concluded that it is also the appropriate test to analyze the due process claims if the plaintiffs are able to prove 

a cognizable liberty or property interest. We thus analyze the equal protection and due process claims together.32

The Anderson/Burdick rubric requires us to examine two aspects of 

Texas’s signature verification procedures: (1) whether the process poses a 

“severe” or instead a “reasonable, nondiscriminatory” restriction on the 

right to vote and (2) whether the state’s interest justifiesthe restriction. Burdick, 504 U.S. at 434 (cleaned up). Texas’s signature-verification procedures 

are reasonable and nondiscriminatory, and they survive scrutiny under 

Anderson/Burdick.

a.

The plaintiffs and the district court reason that Texas’s signatureverification procedures impose a severe burden on the right to vote, because 

“voters who have their ballots rejected due to a perceived signature mis32 The due process and equal protection claims challenge separate aspects of 

Texas’s signature-verification procedures. The due process claims challenge the lack of 

notice and opportunity to cure after a ballot has already been rejected by the signatureverification procedures, but the equal protection claims focus on the existence and implementation of the signature-verification procedures. Though these differences could potentially warrant separate Anderson/Burdick analyses, the district court applied “the same 

analysis” to both claims. Richardson, 2020 WL 5367216, at *31. Neither party asks us to 

conduct separate Anderson/Burdick analyses. Given the lack of argument on point, we 

conduct a single Anderson/Burdick analysis.

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match are provided untimely notice of rejection and no meaningful opportunity to cure.” Richardson, 2020 WL 5367216, at *33 (emphasis omitted). 

Consequently, the argument goes, these voters “face complete disenfranchisement.” Id. This theory stems from two fundamental errors: It (1) mistakenly focuses only on the burden to the plaintiffs—instead of voters as a 

whole—and (2) neglects meaningfully to analyze binding precedent concerning what constitutes a “severe” burden on the right to vote.

First, the district court concluded that Texas’s signature-verification 

procedures constitute “a ‘severe’ burden on certain voters’ right to vote.” 

Id. at *34 (emphasis added). But the severity analysis is not limited to the 

impact that a law has on a small number of voters. For instance, Crawford’s

three concurring Justices concluded that “our precedents refute the view 

that individual impacts are relevant to determining the severity of the burden” that a voting law imposes. Crawford, 553 U.S. at 205 (Scalia, J., concurring). Though Crawford’s three-Justice plurality did not go as far as the 

three-Justice concurrence, it too examined the burden on “most voters.” 

Id. at 198.

Examining burdens on a plaintiff-by-plaintiff basis “would effectively 

turn back decades of equal-protection jurisprudence.” Id. at 207 (Scalia, J., 

concurring). Specifically, the district court’s individualized assessment of 

burdens ignores Burdick—the very case that it purports to apply. For instance, in Burdick, 504 U.S. at 436−37, Hawaii’s ballot access laws did not

constitute a severe burden on the right to vote when any burden was borne 

“only by those who fail to identify their candidate of choice until days before 

the primary.” In fact, the Burdick dissenters—whose views did not carry the 

day—asserted that the law’s impact on only “some individual voters” could 

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constitute a severe burden. Id. at 448 (Kennedy, J., dissenting).33 Thus, if 

we were “[t]o deem ordinary and widespread burdens like these severe” 

based solely on their impact on a small number of voters, we “would subject 

virtually every electoral regulation to strict scrutiny, hamper the ability of 

States to run efficient and equitable elections, and compel federal courts to 

rewrite state electoral codes.” Clingman v. Beaver, 544 U.S. 581, 593 (2005).

Second, the plaintiffs and the district court neglect meaningfully to

analyze binding precedent concerning what constitutes a “severe” burden 

on the right to vote. Crawford concluded that a photo-identification requirement was not a severe burden, even where “a somewhat heavier burden may 

be placed on a limited number of persons.” Crawford, 553 U.S. at 199. But 

these burdens were “neither so serious nor so frequent as to raise any question about the constitutionality” of the requirement. Id. at 197.

Signature-verification requirements, like photo-ID requirements, 

help to ensure the veracity of a ballot by “identifying eligible voters.” Id. 

Signature-verification requirements are even less burdensome than photo-ID

requirements, as they do not require a voter “to secure . . . or to assemble” 

any documentation. Id. at 199. True, some voters may have difficulty signing 

their names on ballots. But in Crawford, even though some voters might find 

it “difficult either to secure a copy of their birth certificate or to assemble the 

other required documentation to obtain a state-issued identification,” that 

33 The Court’s generalized approach in measuring the severity of burdens makes 

sense. If we were to find that a burden is severe based solely on a plaintiff’s assertion that 

he or she might be disenfranchised, our Fourteenth Amendment analysis of voting laws 

would risk collapsing into a standing analysis: So long as a plaintiff could prove an injury,

that plaintiff would also be able to prove a severe burden under Anderson/Burdick. Such 

reasoning flouts Anderson’s conclusion, 460 U.S. at 788, that “the state’s important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory [voting] 

restrictions.”

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difficulty did not render the photo-ID law a severe burden on the right to 

vote. Id. 

Even if some voters have trouble duplicating their signatures, that 

problem is “neither so serious nor so frequent as to raise any question about 

the constitutionality” of the signature-verification requirement. Crawford, 

553 U.S. at 197–98. “[N]o citizen has a Fourteenth . . . Amendment right to 

be free from the usual burdens of voting.” Veasey, 830 F.3d at 316 (Jones, J.,

concurring) (cleaned up). And “mail-in ballot rules that merely make casting 

a ballot more inconvenient for some voters are not constitutionally suspect.” 

Tex. LULAC, 2020 WL 6023310, at *6.

Moreover, Texas mitigates the burden of its signature-verification 

requirement in three ways. First, for those who sign ballots, the Secretary 

has issued notice of the signature-comparison process and guidance on how 

to complete a ballot properly. Richardson, 2020 WL 5367216, at *45. Second, 

for those who cannot sign a ballot “because of a physical disability or illiteracy,” § 1.011(a), Texas prohibits rejection of a ballot for failed signature verification if the ballot is signed by a witness, § 87.041(b)(2). Third, for those 

who cannot sign a ballot or who are concerned that they will be unable to 

provide a matching signature, Texas provides in-person voting.

34 “In Texas, 

in-person voting is the rule . . . [and] voting by mail is the exception.” Tex. 

Democratic Party v. Abbott (“TDP-II”), No. 20-50407, 2020 U.S. App. 

LEXIS 32503, at *1 (5th Cir. Oct. 14, 2020) (published) (citation omitted).

Because Texas’s signature-verification requirement is no more bur34 Absentee-voting statutes, “which are designed to make voting more available to 

some groups who cannot easily get to the polls, do not themselves deny [voters] the exercise 

of the franchise.” McDonald, 394 U.S. at 807–08. As the district court rightly acknowledges, “in-person voting . . . could be used by many voters to avoid disenfranchisement.” 

Richardson, 2020 WL 5367216, at *28.

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densome on the right to vote than was the photo-ID mandate in Crawford, it 

does not constitute a severe burden. Instead, the signature-verification requirement is a “reasonable, nondiscriminatory restriction[]” on the right to 

vote. Burdick, 504 U.S. at 434.

The district court, however, concluded that the signature-verification 

procedures constitute a severe burden because they provide “untimely 

notice of rejection and no meaningful opportunity to cure.” Richardson, 2020 

WL 5367216, at *33. Texas could remedy that transgression, the court posited, if its mechanism for screening ballots “imposed no risk of uncorrectable 

rejection.” Id. at *33 n.41. But the court failed to specify how a dearth of 

opportunities to cure transmogrifies Texas’s signature-verification requirement into a severe burden. Similarly, the court did not cite any precedent 

suggesting that “no risk” of uncorrectable rejection is a constitutionally mandated standard for verifying ballots.35 Nor could it.

Indeed, the Constitution does not demand such a toothless approach 

to stymying voter fraud. We have found no “authority suggesting that a State 

must afford every voter . . . infallible ways to vote.” Tex. LULAC, 2020 WL 

6023310, at *6. For instance, Crawford upheld a photo-ID law even though a 

voter might be unable to cast a ballot on election day because he “may lose 

his photo identification, may have his wallet stolen on the way to the polls, or 

may not resemble the photo in the identification because he recently grew a 

beard.” Crawford, 553 U.S. at 197. The risk that a voter might be unable to 

35 The district court also sought to determine whether Texas’s signature verification procedures were “an ‘inconvenience’ that would ‘not qualify as a substantial, burden 

on the right to vote.’” Richardson, 2020 WL 5367216, at *33 n.41 (quoting Crawford, 

553 U.S. at 199). But the court mischaracterizes Crawford, which never stated that mere 

“inconvenience” was a constitutional standard. In fact, the Court recognized that voter-ID 

laws impose a “somewhat heavier burden” on many voters, yet the Court concluded that 

those laws are constitutional. Crawford, 553 U.S. at 199.

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cast his vote on account of this restriction did not constitute a severe burden. 

Similarly, nowhere did Crawford mandate that Indiana provide voters with 

notice and an opportunity to cure before they were turned away from the 

polls.36

In fact, in Crawford the Court noted less burdensome methods of identification, including a requirement that voters “sign their names so their signatures can be compared with those on file.” Id. (emphasis added). The dissent 

lauded as “significantly less restrictive” a voter-ID system in which a Florida 

voter who lacks photo ID may cast, at the polling place, a provisional ballot

that will be counted if the state “determines that his signature matches the one 

on his voter registration form.” Id. at 239 (emphasis added) (Breyer, J., dissenting). Nowhere did the dissent intimate that this “significantly less 

restrictive” voter-ID system required notice or an opportunity to cure before

rejection. See id. 

By concluding that Texas’s signature-verification requirement does 

not constitute a severe burden—even without notice and an opportunity to 

cure—we join the Ninth Circuit, which agrees that “the absence of notice 

36 Three Justices in Crawford did note that, although a “heavier burden may be 

placed on a limited number of persons . . . [t]he severity of that burden is, of course, 

mitigated by the fact that, if eligible, voters without photo identification may cast provisional ballots that will ultimately be counted” so long as the voter “travel[s] to the circuit 

court clerk’s office within 10 days to execute the required affidavit.” Crawford, 553 U.S. 

at 199. Those Justices, however, did not indicate that—absent this mitigating fact—the 

burden would be severe. 

Moreover, Texas—like Indiana in Crawford—provides an alternative method of 

voting for those who do not believe they can provide the requisite signature: in-person 

voting. True, some voters may be unable to make the trip to the polls. But similarly, some 

voters in the Crawford situation might be unable to make the trip to the clerk’s office. That 

inability of some voters to exercise the franchise, because they cannot comply with voting

restrictions, does not render otherwise reasonable voting restrictions constitutionally 

infirm.

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and an opportunity to rehabilitate rejected signatures imposes only a minimal 

burden on plaintiffs’ rights.” Lemons, 538 F.3d at 1104. This is so even 

where “county elections officials do not notify voters after rejecting nonmatching signatures.” Id.

b.

We next determine whether “the State’s important regulatory interests are . . . sufficient to justify the restrictions,” and they generally are,

under Burdick, if the burden of the voting restriction is not severe. Burdick, 

504 U.S. at 434 (cleaned up). We agree with the Secretary that Texas’sinterest in preventing voter fraud justifies its signature-verification requirement.

It is well established that the electoral process poses a risk of fraud. 

See Voting for Am., Inc. v. Steen, 732 F.3d 382, 394 (5th Cir. 2013). “[N]ot 

only is the risk of voter fraud real but . . . it could affect the outcome of a close 

election.” Crawford, 553 U.S. at 196. Thus, “[w]hile the most effective 

method of preventing election fraud may well be debatable, the propriety of 

doing so is perfectly clear.” Id. Texas “indisputably has a compelling interest in preserving the integrity of its election process.” Eu v. S.F. Cty. Democratic Cent. Comm., 489 U.S. 214, 231 (1989).

But Texas’s signature-verification requirement is not designed to stymie voter fraud only in the abstract. It seeks to stop voter fraud where the 

problem is most acute—in the context of mail-in voting.37 “[T]he potential 

and reality of fraud is much greater in the mail-in ballot context than with inperson voting.”38

37 See Tex. LULAC, 2020 WL 6023310, at *7 (“Texas has an important regulatory 

interest in policing how its citizens’ votes are collected and counted. This interest is acute 

when it comes to mail-in ballots.”) (cleaned up).

38 Veasey, 830 F.3d at 239; see also id. at 263 (describing voter fraud as “far more 

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Texas’s important interest in reducing voter fraud—and specifically 

in stymying mail-in ballot fraud—easily justifies its use of signature verification. In concluding otherwise, the district court made at least two errors: It 

(1) incorrectly suggested that Texas needed to provide evidence of voter 

fraud and (2) erroneously imposed a narrow-tailoring requirement on the 

state.

First, the district court deemed it relevant that “there is no evidence 

prevalent” in the context of absentee ballots); Veasey v. Abbott, 888 F.3d 792, 815 n.13 (5th 

Cir. 2018) (Graves, J., concurring) (describing “mail-in ballots” as “the area where, by 

most accounts, [voter fraud] is more likely to occur. . . .”); Griffin v. Roupas, 385 F.3d 1128, 

1130–31 (7th Cir. 2004) (“Voting fraud is a serious problem in U.S. elections generally . . . 

and it is facilitated by absentee voting.”); Feldman v. Ariz. Sec’y of State’s Office, 843 F.3d 

366, 390 (9th Cir. 2016) (“[A]bsentee voting may be particularly susceptible to fraud, or at 

least perceptions of it.”); John C. Fortier & Norman J. Ornstein, The Absentee Ballot and 

the Secret Ballot: Challenges for Election Reform, 36 U. Mich. J.L. Reform 483, 513 

(2003) (summarizing instances of “absentee ballots [that] were shown to be forged, 

coerced, stolen from mailboxes, or fraudulently obtained” from Florida, Alabama, Connecticut, Indiana, New York, and Pennsylvania). 

Courts have documented instances of voter fraud around the country, many of 

which involve forgery of absentee ballots. See, e.g., Democratic Nat’l Comm. v. Hobbs, 

948 F.3d 989, 1036 (9th Cir. 2020) (describing “the recent case of voter fraud in North 

Carolina involving collection and forgery of absentee ballots by a political operative hired 

by a Republican candidate”); Crawford, 553 U.S. at 225 (Souter, J., dissenting) (referring 

to “absentee-ballot fraud, which (unlike in-person voter impersonation) is a documented 

problem in Indiana”). 

Texas is not immune from mail-in voter fraud. See The Heritage Foundation, 

Election Fraud Cases, https://www.heritage.org/voterfraudprint/search?combine=&state=TX&year=&case_type=All&fraud_type=24489 (last visited Sept. 30, 2020) (“Miguel Hernandez visited an elderly woman shortly before the 2017 

Dallas City Council election, collected her blank absentee ballot, filled it out, and forged 

her signature before mailing it back. Hernandez was the first person arrested as part of a 

larger voter fraud investigation in the Dallas area, stemming from claims by elderly voters 

that someone was forging their signatures and the return of nearly 700 mail-in ballots all 

signed by the same witness using a fake name.”); id. (“Charles Nathan Jackson, of Tarrant 

County, forged the name of a stranger, Mardene Hickerson, on an application for an early 

voting ballot.”).

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in the record demonstrating that any mismatched-signature ballots were submitted fraudulently.” Richardson, 2020 WL 5367216, at *34 n.44. But we do 

not force states to shoulder “the burden of demonstrating empirically the objective effects” of election laws. Munro v. Socialist Workers Party, 479 U.S. 

189, 195 (1986). States may “respond to potential deficiencies in the electoral 

process with foresight rather than reactively.” Id. at 195–96. States have 

thus “never been required to justify [their] prophylactic measures to decrease occasions for vote fraud.” Tex. LULAC, 2020 WL 6023310, at *7.

For instance, in Crawford, although “[t]he record contain[ed] no evidence of any such fraud actually occurring in Indiana at any time in its history,” the Court still concluded that “[t]here is no question about the 

legitimacy or importance of the State’s interest in counting only the votes of 

eligible voters.” Crawford, 553 U.S. at 194, 196. By intimating that Texas 

ought to provide the court with evidence of voter fraud, the district court 

ignored this court’s binding conclusion that “Texas need not show specific 

local evidence of fraud in order to justify preventive measures.” Steen, 

732 F.3d at 394.

Second, the district court misapplied the Anderson/Burdick methodology by erroneously imposing a narrow-tailoring requirement. Under Burdick, 504 U.S. at 434, where a voting restriction imposes a severe burden, the 

state must show (1) that there is “a state interest of compelling importance” 

and (2) that the regulation is “narrowly drawn to advance” that interest. But 

where the burden of an election law is reasonable—instead of severe—the 

state must show only a “legitimate interest[]” that is “sufficient to outweigh 

the limited burden” imposed by the regulation. Id. at 440. 

The Anderson/Burdick framework does not impose a narrow-tailoring 

requirement on the state when dealing with reasonable burdens. Id. The 

Secretary satisfied her burden by proving that Texas’s interest in thwarting

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voter fraud justifies signature verification. The district court even suggested 

as much. Richardson, 2020 WL 5367216, at *35. 

But instead of accepting this important interest and weighing it against 

the burden on the plaintiffs, the district court imposed an additional burden: 

The Secretary must show that Texas’s interest in preventing voter fraud “is 

furthered by utilizing signature comparison procedures that do not provide 

voters with a meaningful opportunity to avoid disenfranchisement by curing an 

improperly rejected ballot.” Id. at *29. According to the court, Texas failed in 

this endeavor because there is “no rational basis for providing robust cure 

procedures to voters who fail to show an ID when voting in person but not 

those whose signatures are perceived to mismatch when voting by mail.” Id. 

at *35. 

The district court cited no authority for this added burden on the 

Secretary. And for good reason.

In effect, the court required the Secretary to show that Texas could 

not have fashioned its regulations in a less burdensome manner. When we 

say that a state has not met its burden because we can imagine “less burdensome regulatory options [that] were available,” we call that a “narrow tailoring requirement.” McConnell v. Fed. Election Comm’n, 540 U.S. 93, 316 

(2003) (Kennedy, J., concurring in the judgment). But the Anderson/Burdick

framework imposes a narrow-tailoring requirement only on restrictions that 

constitute severe burdens, not on reasonable voting restrictions. Burdick, 

504 U.S. at 434. The district court thus misapplied Anderson/Burdick when 

purporting to analyze reasonable restrictions on the right to vote.39

39 The district court could have justified its narrow-tailoring requirement if it had 

rested its opinion on its conclusion that Texas’s signature-verification procedures impose 

a severe burden. But the court explicitly concluded that its imposition of this narrowtailoring requirement holds “irrespective of whether the burden is classified as ‘severe,’ 

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Texas’s important interest in preventing voter fraud in its mail-in 

ballot system is sufficient to justify its reasonable restrictions on the right to 

vote. The Secretary is likely to prove that the district court erred in granting

the plaintiffs’ summary judgment on the merits.

B.

The Secretary is likely to prevail in her defense thatsovereign immunity bars the district court’s injunction requiring that she issue particular

advisories and take specific potential enforcement action against noncomplying officials. Whether Ex parte Young, 209 U.S. 123 (1908), bars all 

affirmative injunctions against an officer “is an unsettled question that has 

roused significant debate.” Green Valley Special Util. Dist. v. City of Schertz, 

969 F.3d 460, 472 n.21 (5th Cir. 2020) (en banc). We need not settle that 

debate here. Although the question remains whether sovereign immunity 

bars all affirmative injunctions, the present injunction is impermissible 

because it would control the Secretary in her exercise of discretionary

functions.

In Young, 209 U.S. at 158, the Court stated that “[t]here is no doubt 

that the court cannot control the exercise of the discretion of an officer.” 

Analyzing the question whether sovereign immunity bars positive injunctions 

against officers, the D.C. Circuit stated that “an attempt to control an officer” in the exercise of a discretionary function would violate sovereign immunity under Ex parte Young, and “would place the court on the wrong side 

of the line thought to divide ‘discretionary’ from ‘ministerial’ functions.” 

Vann v. Kempthorne, 534 F.3d 741, 753 (D.C. Cir. 2008) (citing Hagood v. 

‘moderate,’ or even ‘slight.’” Richardson, 2020 WL 5367216, at *35. “Even assuming the 

Secretary need only satisfy a ‘rational’ basis review . . . the Secretary still could not do so.” 

Id. (emphasis omitted). The court applied a narrow-tailoring requirement to even rational 

basis review and, in so doing, misapplied Anderson/Burdick.

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Southern, 117 U.S. 52, 69 (1886)). 

The D.C. Circuit further examined the Supreme Court’s application 

of sovereign immunity in Hawaii v. Gordon, 373 U.S. 57 (1963) (per curiam). 

See Vann, 534 F.3d at 753. In Gordon, 373 U.S. at 58, the Court held that a 

court could not require the Director of the Bureau of the Budget to withdraw 

a report advising the federal government regarding which land the United 

States should retain under the Hawaii Statehood Act. Such an order violated 

sovereign immunity because it “would require the Director’s official affirmative action.” Id. The D.C. Circuit explained that Gordon exemplifies “the 

principle” that a court may not compel officers to take affirmative official 

actions that are discretionary. Vann, 534 F.3d at 753.

We need not determine now whether affirmative injunctions are categorically barred by sovereign immunity. See Green Valley, 969 F.3d at 472 

n.21. It is sufficient to note that, at the very minimum, a court may not “control [an officer] in the exercise of his discretion.” Young, 209 U.S. at 158.

The district court’s sweeping order requires that the Secretary take 

several positive actions. In addition to requiring her to issue an advisory 

notifying local election officials of the district court’s constitutional judgment 

regarding the signature-mismatch laws, the order also gives the Secretary an 

ultimatum. It provides that she either must issue an advisory stipulating the 

detailed procedures that the district court imposed, or, alternatively, must

promulgate an advisory requiring that local officials refrain at all from rejecting ballots based on mismatched signatures. Richardson, 2020 WL 5367216, 

at *38.

Section 31.003 states that the Secretary “shall obtain and maintain 

uniformity in the application, operation, and interpretation of this code,” and 

that in doing so she “shall prepare detailed and comprehensive written directives and instructions” regarding Texas election laws. Because the statute 

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uses the mandatory language of “shall,” § 31.003 imposes an affirmative duty 

on the Secretary to maintain uniformity regarding the application and interpretation of election laws. See Lightbourn v. Cty.of El Paso, 118 F.3d 421, 429 

(5th Cir. 1997).

“If a statute, regulation, or policy leaves it to . . . [an] agency to determine when and how to take action, the agency is not bound to act in a particular manner and the exercise of its authority is discretionary.” St. Tammany 

Par. ex rel. Davis v. FEMA, 556 F.3d 307, 323 (5th Cir. 2009). Though the 

Secretary has a duty to maintain uniformity, § 31.003 leaves her considerable 

discretion and latitude in how to do so. By prescribing detailed and specific 

procedures that the Secretary must include in her advisory, the district court

impinges upon her discretionary authority in flat violation of Young. 

The fact that the district court’s mandated procedures were offered 

to the Secretary as one of two choices does not cure the order from infringing 

on her discretion. To the contrary, the very fact that the order gave her an 

ultimatum constitutes “an attempt to control the officer” and is, thus, plainly

forbidden under Young. See Vann, 534 F.3d at 753.

The injunction also stipulates that the Secretary must reprimand any 

local officials who violate the district court’s procedures and must “correct 

the offending conduct” per § 31.005. Richardson, 2020 WL 5367216, at *39. 

Again, the order far exceeds the limits of Young. A “[r]eview of the provisions of the Texas Election Code that refer to the Secretary’s role in elections 

reveals that most give discretion to the Secretary to take some action.” Lightbourn, 118 F.3d at 428–29. Interpreting § 31.005, we determined that the 

Secretary has considerable discretion under that provision. Id. at 429. 

Indeed, we observed that the law states thatshe “may take appropriate action 

to protect the voting rights of the citizens . . . from abuse . . . .” Id. (quoting 

§ 31.005(a)).

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The district court directs the Secretary to take action against nononforming election officials under § 31.005(b), a provision that specifies how 

the Secretary can enforce the Code against violations of voting rights. As in 

§ 31.005(a), the language in § 31.005(b) is discretionary, stipulating that the 

Secretary “may order the person to correct the offending conduct.” 

(Emphasis added.) “Provisions merely authorizing the Secretary to take 

some action do not confer a legal duty on [her] to take the contemplated 

action.” Lightbourn, 118 F.3d at 429. 

Section 31.005 grants the Secretary discretion to take enforcement 

actions, and the district court cannot, therefore, compel such actions under 

Young. Thus, the Secretary is likely to prevail in her defense that the injunction is impermissible under Young.

40

IV.

The other factors also counsel in favor of granting a stay pending 

appeal. As to whether the Secretary “will be irreparably injured absent a 

stay,” Nken, 556 U.S. at 426, “[w]hen a statute is enjoined, the State necessarily suffers the irreparable harm of denying the public interest in the enforcement of its laws,” Veasey, 870 F.3d at 391. And as to “where the public 

40 The Secretary contends that the injunction exceeds the district court’s remedial 

authority because it is not narrowly tailored, in violation of Federal Rule of Civil Procedure 

65(d), and because it contravenes principles of federalism by requiring the Secretary and 

other election officials to disobey Texas law. The plaintiffs respond that the injunction is 

specific and narrow because the signature-matching procedure is implemented statewide 

and, thus, requires a state-wide injunction. The plaintiffs also counter that the injunction 

does not violate federalism principles because it merely brings the signature-comparison 

procedures into alignment with constitutional requirements and gives the Secretary a 

choice in how to revise the procedures. Because the Secretary is likely to prevail both in 

her argument that the injunction violates Young and on the merits in defending the current 

signature-matching procedures, we need not determine whether the injunction also exceeds the district court’s remedial authority.

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interest lies,” Nken, 556 U.S. at 426, when “the State is the appealing party, 

its interest and harm merge with that of the public,” Veasey, 870 F.3d at 391. 

Moreover, “a temporary stay here, while the court can consider argument on 

the merits, will minimize confusion among both voters and trained election 

officials—a goal patently within the public interest given the extremely fastapproaching election date.” TDP-I, 961 F.3d at 412 (cleaned up).

Finally, as to “whether issuance of the stay will substantially injure 

the other parties interested in the proceeding,” Nken, 556 U.S. at 426, to 

whatever extent it might, it does not outweigh the other factors. “Our decision is limited to determining irreparable harm not in denying the plaintiffs’ 

requested relief outright but in temporarily staying the injunction pending a 

full appeal.” TDP-I, 961 F.3d at 412. Because of the likelihood that the Secretary will succeed on the merits, combined with the irreparable harm 

inflicted on the state and its citizens by the injunction, the balance of harms 

weighs in favor of the Secretary.

* * * * *

The Secretary’s motion to stay the injunction pending appeal is 

GRANTED. The injunction is STAYED in all its particulars pending further order of this court.41

41 We note that in Middleton v. Andino, No. 3:20-cv-01730-JMC, 2020 U.S. Dist. 

LEXIS 171431, at *3 (D.S.C. Sept. 18, 2020), the district court issued a broad injunction 

barring South Carolina, inter alia, from “the requirement that another individual must 

witness a voter’s signature on an absentee ballot envelope for the ballot to be counted.” 

The plaintiffs had made many of the same legal and factual arguments that are presented 

here. The Supreme Court unanimously stayed the injunction pending appeal, Andino v. 

Middleton, No. 20A55, 2020 U.S. LEXIS 4832 (U.S. Oct. 5, 2020), after the Fourth Circuit 

had declined to do so, Middleton v. Andino, No. 20-2022, 2020 U.S. App. LEXIS 31093 (4th 

Cir. Sept. 30, 2020) (en banc).

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Patrick E. Higginbotham, Circuit Judge, concurring in the stay:

In 1985, the Texas Legislature codified a revised state election code 

that included §§ 87.041(b) & (d), the provisions from which Plaintiffs seek 

relief.1 Since codification, the Legislature has amended § 87.041(b) only 

once, in 1987.2 Section 87.041(d) has not been amended. And while the 

Legislature has added to or amended other subsections of § 87.041 as recently 

as 2017, Texas’s basic framework for verifying voter signatures has been in 

place for several decades. Plaintiffs filed this suit in August 2019, reaching 

this court a year later. We are asked to change those rules while voting in a 

presidential election is under way—in the three weeks remaining before 

Election Day. However federal courts might finally decide this case, it now 

hangs a cloud over the election.

I concur only in the decision to stay pending appeal of the district 

court’s injunction changing the election rules. The Secretary of State has 

shown a substantial likelihood of success on the merits, and the district 

court’s ruling has been stayed to allow this Court to decide the merits of the 

case. Well enough, but the reality is that the ultimate legality of the present 

system cannot be settled by the federal courts at this juncture when voting is 

already underway, and any opinion on a motions panel is essentially written 

in sand with no precedential value3

—its reach is to delay, not to finally decide 

the validity of the state regulation. The Supreme Court has consistently 

counseled against court-imposed changes to “election rules on the eve of an 

1 1985 Tex. Sess. Law Serv. 211, § 1.

2 See 1987 Tex. Sess. Law Serv. 472, § 34.

3 Northshore Dev., Inc. v. Lee, 835 F.2d 580, 583 (5th Cir. 1988).

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election.”4 Caution is particularly appropriate where, as here, the challenged 

laws were in effect long before suit was filed.

 I.

I would not attempt to settle our circuit’s law on such complex and 

delicate questions in a preliminary ruling that has not benefitted from oral 

argument or collegial discussions. And a decision by this motions panel 

granting a stay settles no law. To the contrary, it has no precedential force 

and is not binding on the merits panel, leaving it as a writing in water—made 

the more empty by pretermitting the jurisdictional requisites of sovereignty 

and the reach of Ex parte Young. The matter is yet to travel its ordinary course 

to be settled by a fully considered opinion by the merits panel, perhaps then 

by the en banc Court. This reality is brought home by the changing opinions 

of my colleagues as the Court responds to legal challenges in the electoral 

process as conflicting opinions in other circuits indicate.

5 Here, we proceed 

without collegial conference on a motions panel and need not as a panel 

traverse numerous paths and crossroads engaging significant issues whose 

impact on our voting-rights jurisprudence remains contested, including 

standing and the reach of Ex parte Young, core principles of federalism. To do 

so would expose shifting views on these issues—a fluidity of view that 

unwittingly would present this Court as a volunteer in a political fight. In my 

view, the Secretary is a proper defendant under Ex parte Young. More to the 

point, it is the controlling law in this circuit. In pretermitting rather than 

accepting that reality, my colleagues cling to their view expressed last month 

that the Secretary lacks the enforcing authority under state law necessary to 

4 Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1207 (2020)

(per curiam). 

5 See Memphis A. Philip Randolph Inst. v. Hargett, No. 20-6046, 2020 WL 6074331 

(6th Cir. Oct. 15, 2020); id. at *9 (Moore, J., dissenting).

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a federal suit enjoining her enforcement of an assertedly unconstitutional 

state statute6 and casting doubt on whether the Court is bound by its recent 

case law because that case law might yet be considered en banc.7 This fluidity 

counsels caution in wading into a change of election rules while voting is 

underway in an election charged with distrust of the political process—at its 

heart breeding doubt that one’s vote will count.

 II. 

In 2016 and 2018, “approximately 5,000 [Texas] ballots were rejected 

on the basis of perceived signature mismatches.”8 Such “small” differences 

have the potential to decide both local and national elections. And with the 

large increase in votes cast by mail in our ongoing pandemic that error rate 

would toss out far greater numbers. There is much at stake here.

While Chief Justice Marshall’s observation that the federal courts 

must decide is more than a truism, staying our hand is well within our 

compass here as we are asked to draw upon our injunctive powers. These 

must include an assessment of the real-world effect of when sought-for relief 

is granted. Plainly, the risks of now ordering changes in rules in effect for 

years would add to the uncertainties at every county seat across Texas, each 

facing the counting of votes cast by mail swelled by the pandemic beyond all 

past experience. There is yet another layer. A final decision from the judiciary 

is unlikely before voting in this presidential election year is completed. Again, 

6 See Tex. Democratic Party v. Hughs (TDP-I), No.20-50667, 2020 WL 5406369, 

at*1 (5th Cir. Sept. 9, 2020).

7 Id.; see Tex. Democratic Party v. Abbott (TDP-II), No. 20 50407, 2020 WL 5422917, 

at *5 (5th Cir. Sept. 10, 2020 ).

8 Richardson v. Tex. Sec’y of State, No. SA-19-CV-00963-OLG, 2020 WL 5367216,

at *30 (W.D. Tex. Sept. 8, 2020). 

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it is now underway. Finally, while I cannot join Judge Smith’s opinion, I join 

the grant of a stay for the reasons I here offer. 

Relying on the old wisdom that looking to the path traveled can give 

direction to the road ahead, we see that while the road of right to vote has at 

times been nigh impassable as it rolled past people of color, women, and the 

poor, it has in the long view tracked the expansion of civil rights, reflecting to 

these eyes a maturation of individual liberty. Sometimes one step forward 

with two steps back, but the arc has been its expansion with which partisans 

ought make peace, accepting the bedrock principle that disenfranchising 

citizens is not a fallback to a failure to persuade. It is a given both that states 

must protect citizens’ fundamental right to vote, resisting in that effort 

tempting cover for partisan objectives, and that their efforts remain 

reviewable with the disinterest demanded by the architects of our 

Constitution, insisting that judges of federal courts it would create be as 

“independent as the lot of humanity will admit”9—counsel wise and 

prescient offered as it was before the arrival of political parties, a charge 

implicit in the oath of us all whether modern day federalists or Jeffersonians.

9 Mass. Const., Declaration of Rights, art. 29 (1780).

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