IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-30185

LUTHER SCOTT, JR., for himself and all other persons similarly situated; 

LOUISIANA STATE CONFERENCE OF THE NAACP, for themselves and 

all other persons similarly situated,

Plaintiffs - Appellees

v.

TOM SCHEDLER, in his official capacity as the Louisiana Secretary of State,

Defendant - Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

Before STEWART, Chief Judge, and JOLLY and SMITH, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Luther Scott, Jr. and the Louisiana NAACP both sought to enjoin two 

state agencies and the Louisiana Secretary of State to comply with the 

National Voter Registration Act. Scott alleges he was not provided with a voter 

registration form when applying for food stamps, and the Louisiana NAACP 

alleges it had to divert resources to voter registration drives as a result of 

Louisiana’s purported non-compliance. The district court enjoined all three 

defendants. The state agencies do not appeal. Thus the only question for us 

is the validity of the injunction against the Secretary of State.

United States Court of Appeals

Fifth Circuit

FILED

November 5, 2014

Lyle W. Cayce

Clerk

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Although the National Voter Registration Act is complex, today we are 

primarily concerned with the Secretary of State’s challenge to the extent of its 

requirement that state welfare agencies provide benefits applicants with voter 

registration forms. The plaintiffs sought injunctive relief to (1) ensure the 

agencies provided voter registration forms to applicants transacting remotely 

over the internet, phone, or mail; (2) ensure the agencies provided voter 

registration forms to applicants checking neither box on the declination form; 

and (3) ensure the agencies complied with other miscellaneous provisions of 

the Act. The district court ruled in favor of the plaintiffs on all three sets of 

claims, issuing a broad injunction. The Secretary of State alone now appeals, 

asserting that he had no authority to enforce the Act. He also disputes the 

extent of the Act’s obligations. Furthermore, he contends that neither Scott 

nor the Louisiana NAACP has satisfied Article III standing or the Act’s notice 

requirement.

We dismiss Scott’s claims on standing and notice grounds. We do, 

however, reach the merits of the case regarding the relief separately requested 

by the Louisiana NAACP. Accordingly, we vacate, in part, the injunction

regarding the Secretary of State. The plain meaning of the declination form 

obliges us to vacate in part the relief that the district court granted to the 

Louisiana NAACP. But in affirming the injunction in part, we hold that the 

Act gives the Secretary of State enforcement authority, and that consequently

he has an obligation to require the two state agencies to comply with the other 

miscellaneous portions of the Act.

I.

This appeal involves questions of fact and law, so we begin by setting out 

the facts in some detail. Plaintiff Luther Scott, Jr. visited an office of the 

Louisiana Department of Children and Family Services (“DCFS”) to apply for 

food stamps in September 2009 and again in December 2009. On both of these 

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visits, Scott was handed a declination form reading, “If you are not registered 

to vote where you live now, would you like to apply to register to vote here 

today?” The form contained a yes box and a no box which the applicant could 

check. The form further stated, “IF YOU DO NOT CHECK EITHER BOX, 

YOU WILL BE CONSIDERED TO HAVE DECIDED NOT TO REGISTER TO 

VOTE AT THIS TIME.” On both occasions, Scott did not check either box and 

consequently did not receive a voter registration form. He signed his name on 

the declination form in September 2009 but left the December 2009 declination 

form completely blank.

Scott also visited the DCFS office to modify his address on November 15, 

2010. During that visit, he was given neither a declination nor a voter 

registration form.1

Unbeknownst to Scott, he had in fact been registered to vote since 

June 10, 2008. But Scott was intermittently homeless during this time. Scott 

testified that because he never received word that he had been registered, he 

was unaware that he could vote. 

In addition to Scott, the other plaintiff here is the Louisiana State 

Conference of the NAACP (“the NAACP”). The NAACP’s head of voter 

registration efforts is Edward Taylor. Taylor testified that on about six 

different occasions, he conducted voter registration drives outside benefits 

offices in Louisiana. Taylor conducted these drives by himself.

On January 12, 2011, the NAACP sent a letter to Tom Schedler, 

Louisiana’s Secretary of State and chief elections official, stating that it 

believed the State was not in compliance with the National Voter Registration 

1 After filing suit, Scott again visited DCFS. He was given a declination form and 

checked the “no” box, and he was not given a voter registration form. 

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Act (“NVRA”).2 The letter did not mention Scott, the NAACP’s eventual coplaintiff.

On April 19, 2011, the NAACP and Scott filed a complaint against the 

following state officials in their official capacities: Schedler, Ruth Johnson, who 

was the Secretary of the DCFS, and Bruce Greenstein, who was the Secretary 

of the Louisiana Department of Health and Hospitals (“the DHH”).3 The 

complaint alleged systematic and ongoing violations of several provisions of 

Section 74 of the NVRA. The defendants’ answers denied most of the 

complaint’s factual allegations.

The defendants eventually moved for partial summary judgment, 

requesting the court to rule that the NVRA did not apply to remote 

transactions, i.e., transactions conducted over the internet, phone, or mail. 

The plaintiffs filed cross-motions for summary judgment on the same issue. 

The district court granted partial summary judgment in favor of the 

plaintiffs and partial summary judgment in favor of the defendants. It held 

that voter registration agencies must provide the services listed in

Section 7(a)(6) to applicants transacting remotely, but had the discretion to

provide the services listed in Section 7(a)(4) to in-person applicants only. 

Section 7(a)(6), relating to the voter registration and declination forms, is 

central to this case on appeal.

Four main issues remained for trial: (1) whether the plaintiffs had 

satisfied the NVRA notice and Article III standing requirements; (2) whether 

the defendants were required to provide voter registration forms to applicants 

checking neither box on the declination form; (3) whether the defendants had 

2 42 U.S.C. §§ 1973gg–1973gg-10.

3 Roy Ferrand was also initially named as a plaintiff but withdrew from the suit before 

trial. Additionally, Suzy Sonnier, who replaced Ruth Johnson as Secretary of DCFS, was 

subsequently substituted for Johnson as a defendant. 

4 42 U.S.C. § 1973gg-5.

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violated parts of Sections 7(a)(4) and 7(a)(6) in sundry other ways; and

(4) whether the Secretary of State had the authority to enforce the NVRA.5

After a bench trial, the district court ruled that Scott and the NAACP 

had Article III standing and that the NVRA’s notice requirement did not bar 

either plaintiff from bringing suit. On the merits, the district court also found 

that although the defendants had “already implemented new forms, policies, 

and procedures with regard to both in-person and remote transactions,” each

defendant had violated the NVRA in three distinct ways.6 First, the 

defendants had failed to ensure that voter registration agencies provided voter 

registration forms to applicants who left both boxes unchecked on the 

declination form. Second, the defendants had failed to ensure that applicants 

applying for benefits remotely received voter registration forms. Third, the 

defendants had also violated Sections 7(a)(4) and 7(a)(6) in various additional 

ways.7 The Secretary of State was liable along with the state agency officials 

because he had the authority to enforce the NVRA. The district court awarded 

a broad injunction requiring the defendants to comply with the NVRA.

5 On appeal, we view the Secretary of State’s authority to enforce the NVRA as part 

of the standing question related to redressability.

6 On appeal, Schedler does not raise a mootness argument, and the record before us 

does not indicate that this controversy is moot. 7 The district court found that prior to April 19, 2011, the date the suit was filed, the 

DHH: (1) did not provide voter registration services when applicants changed their 

addresses; and (2) certain application and renewal forms did not include the declination 

question and did not contain a disclaimer that registering to vote would not affect the amount 

of assistance received.

Additionally, prior to April 19, 2011, the DCFS: (1) did not provide a declination form 

at every change of address transaction; and (2) gave employees discretion regarding 

distribution of voter registration forms. Prior to October 31, 2010, the DCFS also did not 

provide voter registration services with every renewal of benefits transaction.

Finally, the Secretary of State: (1) did not engage in measures other than training and 

publishing materials to ensure public assistance offices were complying with the NVRA; 

(2) did not have any requirements regarding the number of annual trainings provided to 

DHH or DCFS; and (3) did not conduct any NVRA training for DCFS between early-2008 and

mid-2011.

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Schedler, the Louisiana Secretary of State, alone now appeals. He 

argues that (1) neither plaintiff complied with the NVRA’s notice requirement; 

(2) neither plaintiff has Article III standing, in part because Schedler lacks 

enforcement powers; (3) Section 7(a)(6) does not apply to remote transactions; 

(4) Section 7(a)(6) does not mandate that an applicant leaving the declination 

form blank must receive a voter registration form.

II.

We first address whether the plaintiff-appellee Scott has complied with 

the NVRA’s notice requirement, a question of law which we review de novo.8 

Kariuki v. Tarango, 709 F.3d 495, 501 (5th Cir. 2013).

An aggrieved party “may provide written notice of the violation to the 

chief election official of the state involved.” NVRA § 11(b)(1).9 Although notice 

is framed here as permissive rather than mandatory, other NVRA provisions 

indicate that notice is mandatory. For instance, the NVRA provides that “[i]f 

the violation is not corrected within 90 days after receipt of [the] notice . . . the 

aggrieved person may bring a civil action in an appropriate district court for 

declaratory or injunctive relief with respect to the violation.” Id. at § 11(b)(2). 

“No standing is therefore conferred if no proper notice is given, since the 90-

day period never runs.” Ga. State Conference of NAACP v. Kemp, 841 F. Supp. 

2d 1320, 1335 (N.D. Ga. 2012).

Scott admits that, although the NAACP provided Schedler with notice, 

he himself did not. But Scott maintains that notice is not necessary here 

because, as the NAACP had provided notice of the defendants’ alleged noncompliance with the NVRA, no notice was required from him personally. Scott 

8 Scott’s counsel conceded at oral argument that Scott lacks Article III standing on the 

remote transactions issue. Because all his transactions were in person, he suffered no injury 

relating to remote transactions.

9 42 U.S.C. § 1973gg-9(b)(1).

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points to Ass’n of Cmty. Orgs. for Reform Now (“ACORN”) v. Miller, 129 F.3d 

833 (6th Cir. 1997), which held that because ACORN had provided Michigan 

with proper NVRA notice, the individuals in the suit were not required to 

provide notice themselves. Miller noted that the purpose of the notice 

requirement was to “provide states . . . an opportunity to attempt compliance 

before facing litigation.” Id. at 838. Because Michigan already had “clearly 

indicate[d] that [it] would continue to refuse to comply with the Act until forced 

to do so by judicial intervention,” notice from the individual plaintiffs would 

have been “unnecessary” and “futile.” Id. 

We hold that Scott’s failure to provide notice is fatal to his suit. He 

cannot piggyback on the NAACP’s notice for several reasons. Most 

importantly, Miller’s exception to the NVRA’s notice requirement is wholly 

devoid of textual support in the statute. No subsequent cases following Miller 

have addressed Miller’s complete lack of statutory authority. See, e.g., Judicial 

Watch, Inc. v. King, No. 1:12-cv-800-WTL-TAB, 2012 WL 6114897, *3 (S.D. 

Ind. Dec. 10, 2012), Kemp, 841 F. Supp. 2d at 1335.

Additionally, Miller is distinguishable because it involved a state that 

refused to comply with the NVRA. In Miller, the Michigan Governor had 

issued an Executive Order for state agencies not to begin providing voter 

registration services until federal funds were available to fund such services. 

Miller, 129 F.3d at 835. By contrast, here, the district court found that all 

defendants were in substantial compliance with the NVRA, which is not 

challenged by the plaintiffs-appellees. Given the defendants’ demonstrated 

desire to comply with the NVRA, notice here would not have been “futile” as it 

was in Miller. Miller, 129 F.3d at 838.

It is also apparent to us that the NAACP’s notice letter was too vague to 

provide Schedler with “an opportunity to attempt compliance” as to Scott 

“before facing litigation.” Id. In the letter, the NAACP alleged NVRA 

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violations only in broad terms and certainly did not mention Scott by name. 

Specifically, the letter (1) alleged that Louisiana was not providing voter 

registration services at public assistance offices, citing a decline in the voter 

registration forms that the public assistance agencies had collected; (2) cited a 

survey illustrating that numerous people were not provided with a voter 

registration form in connection with their application for benefits, 

recertification, or change of address; (3) cited a survey suggesting agency 

personnel were not familiar with their voter registration obligations under the 

NVRA; and (4) stated that numerous agencies did not have hard copies of voter 

registration forms. The letter’s surveys and statistics put Schedler on notice 

neither that the violations concerned the declination form nor that they 

involved Scott. Moreover, when Schedler finally received notice of the 

violations Scott alleged through Scott’s complaint, the DCFS attempted to 

provide Scott with voter registration forms. Providing a potential plaintiff with 

a voter registration form is “exactly [the] sort of compliance attempt” that “prelitigation notice was meant to encourage.” Kemp, 841 F. Supp. 2d at 1336.

To the extent that Scott seeks relief for himself in this action, he has no 

basis for relief because he did not file notice. And consequently, he is not 

entitled to seek relief for others, either. Now we turn to the NAACP’s claim 

that notwithstanding the merits of Scott’s case, it has satisfied the standing 

and notice requirements to pursue the case in Scott’s absence. 

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III.

A.

We first review the district court’s ruling that the NAACP has Article III 

standing. Article III standing “requires that the plaintiff demonstrate that he 

or she has suffered injury in fact, that the injury is fairly traceable to the 

actions of the defendant, and that the injury will likely be redressed by a 

favorable decision.” Ass’n of Cmty. Orgs. for Reform Now (“ACORN”) v. Fowler, 

178 F.3d 350, 356 (5th Cir. 1999) (internal quotation marks omitted). Schedler 

challenges the district court’s findings regarding injury in fact and causation, 

which are mixed questions of fact and law which we review de novo. Adam J. 

v. Keller Independent School District, 328 F.3d 804, 808 (5th Cir. 2003). 

Schedler also challenges the district court’s holding that it would be able to

redress the NAACP’s injury, which is a question of law that we review de novo. 

Kariuki, 709 F.3d at 501.

The NAACP lacks standing to challenge Schedler’s enforcement of the 

NRVA following remote transactions. The NAACP sought an injunction based 

on resources it expended to counteract Schedler’s allegedly illegal conduct. 

But, the record demonstrates that the NAACP only expended resources to 

compensate for deficiencies related to in-person transactions; no evidence (or 

district court finding) supports a theory that the NAACP expended resources 

to register voters engaged in remote transactions. Because there is no 

relationship between the NAACP’s request for injunctive relief and Schedler’s 

(or any defendant’s) treatment of remote transactions, the NAACP lacks 

standing to challenge Scheler’s handling of those remote transactions.

However, our analysis of whether the NAACP has standing to challenge 

the in-person transactions yields a different result. As to those transactions, 

Schedler first argues that the NAACP lacks any injury in fact. “[A]n 

organization has standing to sue on its own behalf where it devotes resources 

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to counteract a defendant’s allegedly unlawful practices.” Fowler, 178 F.3d at

360. Schedler argues that the six occasions on which Taylor registered voters 

outside public assistance offices do not constitute an injury in fact to the 

NAACP.10 Schedler argues that the NAACP failed to prove that Taylor was 

acting on its behalf, noting that the NAACP president was unaware that 

Taylor was registering voters. Schedler also argues that no NAACP money 

was spent on Taylor’s registration drives.

We nevertheless hold that the NAACP has suffered injury in fact. We 

think that the district court did not err in finding that the NAACP’s head of 

voter registration was acting on behalf of the NAACP in conducting voterregistration drives, despite these drives’ not being attended by other NAACP 

officials. Even if Taylor had spent none of the NAACP’s money, the NAACP 

would have still devoted resources to counteract Schedler’s allegedly unlawful 

practices because Taylor devoted his time to the drives. Cf. id. at 360–61

(holding that ACORN has standing because it conducted at least one voter 

registration drive a year in Louisiana). Although Taylor estimated but was 

not sure of the number of voter registration drives he conducted, injury in fact 

is “qualitative, not quantitative.” Id. at 357–58.

B.

 Schedler further argues that there is no causation between his alleged 

NVRA violations and the NAACP’s conducting in-person, voter registration 

drives. We considered a similar question in Fowler, where we held that 

ACORN had standing to bring a Section 7 claim alleging that a state failed to 

provide the required voter registration opportunities at certain public 

assistance offices. Id. at 355. The basis for ACORN’s standing was that it had

10 Presumably these voters had not been registered inside these public assistance 

offices.

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conducted voter registration drives focused on “registering people at welfare 

waiting rooms, unemployment offices, and on Food Stamp lines.” Id. at 361 

(internal quotation marks omitted).

 The NAACP has established causation as to the in-person transactions. 

The causal nexus in Fowler, which centered on public assistance offices, is also 

present here. Taylor conducted his drives outside of public assistance agencies, 

and the NAACP alleges Schedler did not provide voter registration forms to 

applicants transacting with public assistance agencies.

C.

Schedler continues his standing argument by asserting that the 

NAACP’s suit lacks redressability because neither the NVRA nor Louisiana 

law provides his office with the authority to enforce the NVRA. 

The NVRA commands that each state “designate a State officer . . . as 

the chief State election official to be responsible for coordination of State 

responsibilities under this subchapter.” NVRA § 10.11 State law provides 

Schedler with authority that is co-extensive with the NVRA. La. Rev. Stat. 

Ann. § 18:18 (“The secretary of state shall administer the laws relating to 

custody of voting machines and voter registration, and . . . he shall . . . 

[c]oordinate the responsibilities of this state under the National Voter 

Registration Act . . . as required by 42 U.S.C. Section 1973gg-8.”).

Thus the question is whether the power of “coordination” in Section 10 

of the NVRA includes the power of enforcement. Two circuits have previously 

ruled on this question. In Harkless v. Brunner, 545 F.3d 445, 449 (6th Cir. 

2008), the Sixth Circuit considered “whether Ohio’s Secretary of State . . . has 

a role in ensuring Ohio’s compliance with the NVRA.” The court concluded 

that the Secretary, as Ohio’s chief election official, was responsible for the 

11 42 U.S.C. § 1973gg-9.

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“implementation and enforcement” of the NVRA. Id. at 452. Similarly, United 

States v. Missouri, 535 F.3d 844 (8th Cir. 2008), considered whether the 

defendants, the State of Missouri and its Secretary of State, had the authority 

to enforce Section 8 of the NVRA.12 The Eighth Circuit held that although the 

defendants “cannot be required to enforce the NVRA,” both defendants were 

required to make a “reasonable effort” to ensure state agencies’ compliance 

with Section 8. Id. at 851. The court then reversed the district court’s 

judgment, which had held that Missouri and its Secretary of State were not 

proper parties because they lacked enforcement authority. Id. at 848. 

Consequently, although Missouri expresses itself in different language from 

Harkless, both the Eighth Circuit’s and the Sixth Circuit’s interpretations of 

the NVRA provide the chief election official with authority to enforce the NVRA 

with respect to state agencies. 

Against that backdrop, we now consider Schedler’s argument that we 

should interpret “coordination” to constitute only the one-time power to 

implement the NVRA, not an enforcement power.13 In counter-argument, the 

NAACP urges us to follow the interpretation of Missouri and Harkless.

In considering these two contrasting interpretations, we hold that 

“coordination” includes enforcement power for two reasons. First, the NVRA’s 

notice provision, which requires potential plaintiffs to provide notice to the 

chief election official before filing suit, only makes sense if Schedler has 

authority to enforce the Act. The purpose of the notice requirement is to give 

12 Section 8 deals with updating the list of registered voters.

13 An example of a proper exercise of the “coordination” power, in Schedler’s view, 

would be developing NVRA training manuals for state agencies. The district court did not 

allow Schedler to introduce the testimony of Elsie Cangelosi, his predecessor as Secretary of 

State, to demonstrate the Secretary of State’s training programs. Schedler now appeals this 

evidentiary ruling. However, because he cites no authority in support of his argument and

does not sufficiently brief it, he has waived it. See Procter & Gamble, 376 F.3d at 499 n.1.

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the state the opportunity to remedy NVRA violations. See Miller, 129 F.3d at 

838; Harkless, 545 F.3d at 453. Accordingly, “[r]equiring would-be plaintiffs to 

send notice to their chief election official about ongoing NVRA violations would 

hardly make sense if that official did not have the authority to remedy NVRA 

violations.” Harkless, 545 F.3d at 453. Moreover, the NVRA’s notice 

requirement shows that the chief election official’s role must be ongoing. Such 

an ongoing role is at odds with Schedler’s view that the chief election official 

can merely instruct state agencies on NVRA compliance and then disappear 

from the picture.

Second, the NVRA’s centralization of compliance responsibility also 

suggests that the chief elections officer has enforcement power. The NVRA 

centralizes responsibility in the state and in the chief elections officer, who is 

the state’s stand-in. For example, each state must designate a chief elections

officer, who will receive complaints about all violations of the NVRA. See 

NVRA §§ 10, 11. Additionally, the NVRA speaks in terms of the 

responsibilities of “each state.” See, e.g., id. at §§ 7(a)(1), 4(a). This choice of 

words reflects a policy choice that responsibility should be centralized rather 

than fragmented. Cf. Harkless, 545 F.3d at 452 (“[T]he entire Act . . . speaks 

in terms of state responsibilities; what is noticeably missing is any mention of 

county, municipal, or other local authorities.”).

 The NAACP’s interpretation of “coordinate” is more compatible than 

Schedler’s with the NVRA’s concern for centralization. Under Schedler’s view, 

aggrieved parties could sue the state agencies, the DCFS and the DHH, but 

not the Secretary of State. But the NVRA’s centralization of responsibility

counsels against such buck passing. Furthermore, similar to providing for a 

private cause of action, see NVRA § 11, requiring states to assign enforcement 

power to a single person increases the likelihood of NVRA compliance. See 

Harkless, 545 F.3d at 452 (expressing concern that the state could escape 

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responsibility for NVRA violations if the chief elections officer lacked 

enforcement power); see also Missouri, 535 F.3d at 850 (Missouri and its 

Secretary of State “may not delegate the responsibility to conduct a general 

program to a local official and thereby avoid responsibility if such a program is 

not reasonably conducted.”).

D.

We next consider whether the NAACP complied with the NVRA’s notice 

requirements. Schedler argues that although the NAACP attached its notice 

letter to Schedler to its complaint, and it is now in the record, nonetheless we 

should not consider it because it was not introduced into evidence at trial. But 

because Schedler cites no authority for this argument, he has waived it. See 

Procter & Gamble Co., 376 F.3d 496, 499 n.1 (5th Cir. 2004) (“Failure 

adequately to brief an issue on appeal constitutes waiver of that argument”). 

Consequently we leave intact the district court’s determination that the 

NAACP has complied with the notice requirement, and move on.

IV.

We now turn to the merits of the only claim properly before us and

examine what obligations states have under Section 7(a)(6)(B) when an inperson-benefits applicant returns the declination form with neither box 

checked. We review this question of law de novo. Kariuki, 709 F.3d at 501.

Section 7(a)(6) requires voter registration agencies to provide each 

applicant with voter registration forms “unless the applicant, in writing, 

declines to register to vote.” NVRA § 7(a)(6)(A). Section 7(a)(6) requires these 

voter registration agencies to provide all applicants with declination forms, 

which read:

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• “If you are not registered to vote . . . would you like to apply to 

register to vote here today?”14

• [There are then two boxes to check: yes or no.]15

• “IF YOU DO NOT CHECK EITHER BOX, YOU WILL BE 

CONSIDERED TO HAVE DECIDED NOT TO REGISTER TO 

VOTE AT THIS TIME.”16

We hold that an applicant handing back a form with neither box checked 

has created documentation “in writing” showing that he did not wish to 

register. We rely on the plain meaning of “IF YOU DO NOT CHECK EITHER 

BOX, YOU WILL BE CONSIDERED TO HAVE DECIDED NOT TO 

REGISTER TO VOTE AT THIS TIME.” Id. at § 7(a)(6)(B)(iii). The capital 

letters mandated by the NVRA drive home the importance of the message: not 

checking either box equals a decision not to register to vote. Requiring that a 

declination be “in writing,” rather than oral, creates evidence showing that the 

state complied with the NVRA despite not distributing a voter registration 

form. Schedler introduced Scott’s two blank declination forms into the record 

below for this very purpose.

The NAACP argues that Section 7(a)(6)(B)(iii)’s command that “failure 

to check either box [is] deemed to constitute a declination to register for 

purposes of subparagraph (C)” constitutes an exclusive rather than illustrative

list of the consequences of unchecked boxes. But on its face, “for purposes of 

subparagraph (C)” does not specify if unchecked boxes relieve the state only 

from complying with Section 7(a)(6)(C), which deals with assisting applicants 

in filling out voter registration forms, or also relieve the state from complying 

with Section 7(a)(6)(A), which deals with distributing voter registration forms.

14 NVRA § 7(a)(6)(B)(i).

15 Id. at § 7(a)(6)(B)(iii).

16 Id.

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Faced with this ambiguity, we must interpret “for the purposes of 

subparagraph (C)” in a way that avoids introducing an inconsistency into the 

statute. Cf. Gustafson, 513 U.S. at 568 (“[W]e adopt the premise that [a] term 

should be construed, if possible, to give it a consistent meaning throughout the 

Act.”). If we were to read “for the purposes of subparagraph (C)” as an exclusive 

list of the consequences of unchecked boxes, Section 7(a)(6)(b)(iii) would 

instruct the state that unchecked boxes do not equal a declination to register, 

as the state would still be required to provide the applicant with a voter 

registration form. But at the same time, “IF YOU DO NOT CHECK EITHER 

BOX, YOU WILL BE CONSIDERED TO HAVE DECIDED NOT TO 

REGISTER TO VOTE AT THIS TIME” would continue to instruct the 

applicants that unchecked boxes do equal to a declination to register. Because 

we generally attribute consistency to Congress, we read “for the purposes of 

subparagraph (C)” as illustrative rather than exclusive, and thus avoid 

creating an internal inconsistency within Section 7(a)(6)(B)(iii).17

We note that, in Valdez, the Tenth Circuit has reached a conclusion 

different from ours. Valdez reasoned that an applicant checking neither box 

could both not wish to register “at this time” and also want to register in the 

future. 676 F.3d at 946. Consequently, the Tenth Circuit held that a voter 

registration agency must provide such an applicant with a voting registration 

form. Id. at 947. But Valdez overlooks that an applicant checking the “no” box 

could also both not wish to register “at this time” and wish to register in the 

future. The logic of Valdez would compel the state to provide the “no” applicant 

17 At oral argument, both the NAACP and the Department of Justice suggested 

Section 7(a)(6)(B)(iii) provides inconsistent instructions to the applicant and to the state. 

They argued that we should follow the state’s rather than the applicant’s instructions. But 

neither the NAACP nor the Department of Justice explained, first, why Congress would 

provide inconsistent instructions, and second, why the instructions to the state should trump 

the instructions to the applicant.

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with a voter registration form. But Section 7(a)(6) clearly absolves the states 

of providing a voter registration form when the applicant checks “no.” Because 

we take issue with Valdez’s key reasoning, we decline to adopt its conclusion.

V.

To recap, the plaintiffs requested an injunction for Schedler to (1) require 

state agencies to provide voter registration forms to applicants transacting for 

benefits remotely; (2) require state agencies to provide voter registration forms 

to applicants checking neither box on the declination form; and (3) require 

state agencies to comply with other miscellaneous provisions of the Act which 

they had previously violated. The district court granted the plaintiffs an 

injunction on all three issues.

On appeal by the Secretary of State, we vacate the district court’s 

injunction on two of the three issues. We dismiss the NAACP’s claims 

regarding the first two issues, remote transactions and the declination forms. 

But we affirm the injunction insofar as it grants the NAACP relief on the third 

issue because Schedler had the authority to enforce the NVRA. Scott’s claims 

are dismissed for lack of standing and for failing to comply with the NVRA’s 

notice requirement.

We do not consider Schedler’s arguments regarding attorney’s fees and 

the breadth of the district court’s injunction. On remand, the district court 

must modify the injunction and must consider whether, if at all, to alter the 

award of attorney’s fees in a manner consistent with our opinion.

VI.

For the reasons above, we DISMISS Scott’s claims in their entirety, 

DISMISS the NAACP’s claims as to the remote transactions, VACATE IN 

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PART and AFFIRM IN PART the injunction as to Schedler, and REMAND for 

the district court to modify the injunction in accordance with this opinion.18

18 We note again that the injunction against the DCFS and DHH is unaffected by this 

opinion, as it has not been appealed.

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STEWART, Chief Judge, concurring in part and dissenting in part:

I concur in the panel majority’s conclusion that: 1) Scott failed to provide 

the required statutory notice and should therefore be dismissed from this case; 

2) the Louisiana NAACP has standing only to challenge the in-person 

transactions; and 3) Schedler has enforcement authority under Section 10 of 

the NVRA, and the district court’s injunction should be affirmed on this issue. 

However, I would affirm the district court’s ruling that blank declination forms 

do not relieve voter registration agencies of the responsibility to distribute

voter registration forms to applicants. I therefore respectfully dissent from the 

panel majority’s decision to vacate that portion of the injunction.

I.

I would affirm the district court’s ruling that a blank declination form 

does not relieve a voter registration agency from providing an applicant with a 

voter registration form. Section 7(a)(6) requires a voter registration agency to 

provide an applicant with a voter registration form during a covered 

transaction “unless the applicant, in writing, declines to register to vote.” Id.

§ 1973gg-5(a)(6)(A) (emphasis added). A blank declination form does not satisfy 

the “in writing” requirement.

As noted by the Tenth Circuit, failing to check a box on the declination 

form does not fall within the purview of the ordinary meaning of “in writing.” 

See Valdez v. Squier, 676 F.3d 935, 945 (10th Cir. 2012) (noting that the 

ordinary meaning of “in writing” is “[t]he state or condition of having been 

written or penned; written form” (internal quotations and citation omitted)). 

Further, Congress chose to expressly note that the failure to check a box 

constitutes a declination for section 7(a)(6)(C), but it did not include a provision 

that the same reasoning applied to section 7(a)(6)(A). See Nken v. Holder, 556 

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U.S. 418, 430 (2009) (observing that when “Congress includes particular 

language in one section of a statute but omits it in another section of the same 

Act, it is generally presumed that Congress acts intentionally and purposely 

in the disparate inclusion or exclusion.”(internal quotation marks and citation 

omitted)). Finally, requiring states to give an applicant a form unless he 

unequivocally declines one in writing by checking the box marked “no” is 

consistent with Congress’s intent to “increase the number of eligible citizens 

who register to vote in elections for Federal office.” § 1973gg(b)(1). 

Schedler fails to offer any compelling arguments in support of his 

interpretation. First, he contends that the “in writing” requirement is satisfied 

as soon as an applicant signs a declination form. However, that interpretation 

renders section 7(a)(6)(B) superfluous. Section 7(a)(6)(B) requires declination 

forms to include the question: “If you are not registered to vote where you live 

now, would you like to apply to register to vote here today?” An applicant 

would have no need to check either box on the declination form in response to 

this question if the applicant could simply decline to vote by signing the form. 

Second, he argues that an applicant declines to register to vote regardless of 

whether the applicant checks the “no” box or fails to check either box on the 

declination form. He fails to recognize that the NVRA gives import to whether 

an applicant declines “in writing.” If the applicant declines in writing, the 

agency need not provide the applicant with a voter registration form. See § 

1973gg-5(a)(6). However, the agency is not relieved of that duty if the 

applicant fails to check either box. See id. He also argues that applicants who 

check the “no” box may desire to receive a voter registration form later. Even 

accepting that premise, he fails to explain why a failure to check either box on 

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the declination form should be interpreted as satisfying the “in writing” 

requirement of Section 7(a)(6)(A)(ii).1

The panel majority concludes that Section 7(a)(6)(B)(iii) is ambiguous. 

However, Section 7(a)(6)(B)(iii) clearly states that “failure to check either box 

. . . constitute[s] a declination to register for purposes of subparagraph (C).” 

(emphasis added). The panel majority further concludes that it would be 

inconsistent to interpret Section 7(a)(6)(B)(iii) as not applying to Section 

7(a)(6)(A). However, reading Section 7(a)(6)(B)(iii) in accordance with its plain 

language would not create any inconsistency. To the contrary, if an applicant 

leaves the declination form blank, the agency would no longer have to assist 

the applicant with registering to vote, but the agency would remain responsible 

for providing the applicant with a voter registration form. As we have noted 

previously, “we do not inquire what Congress meant; we only ask what it said.” 

Guilzon v. Comm’r of Internal Revenue, 985 F.2d 819, 823 n.11 (5th Cir. 1993).

Therefore, I would affirm the district court’s holding that a voter 

registration agency must provide an applicant with a voter registration form 

during a covered transaction unless the applicant checks the “no” box on the 

declination form.

II.

Accordingly, I would affirm the district court’s injunction insofar as it 

held that the blank declination forms do not relieve a voter registration agency 

from distributing voter registration forms.

1 Schedler makes additional arguments based on legislative history and language in 

a Federal Election Commission implementation manual; however, those arguments are 

equally unavailing because his interpretation is not supported by the language of Section 

7(a). See In re Ramba, Inc., 416 F.3d 394, 401 (5th Cir. 2005) (“Inferences drawn from a 

statute’s legislative history, however, cannot justify an interpretation that departs from the 

plain language of the statute itself.”). 

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