Texas Wins Stay on Decision to Bar Voter Registration Law

Texas can enforce its law regulating third-party voter registration activities while an appeals panel reviews a lower-court ruling blocking the measure.

The U.S. Court of Appeals in New Orleans yesterday granted a request by Texas to put on hold last month’s court order barring enforcement of several provisions of the 2011 law. U.S. District Judge Gregg Costa determined that the law probably conflicted with federal rules and the U.S. Constitution.

The stay will allow enforcement of the law pending the appeal, Texas Attorney General Greg Abbott said.

“This ruling is a victory for voter integrity and helps Texas prevent fraud in the voter-registration process,” Abbott said in an e-mailed statement. The appeals court yesterday also granted the state’s motion to expedite the appeal.

In a separate lawsuit, two civil rights organizations asked a state court judge in Des Moines yesterday to stop Iowa Secretary of State Matt Schultz from implementing a rule change using lists of foreign nationals to purge non-citizens from voter rolls. The American Civil Liberties Union and a Latino rights group claim the new rules, which Schultz announced in July, would unfairly affect new citizens.

Multiple court battles over U.S. voting rules are under way, particularly in so-called swing states such as Florida, Ohio, Pennsylvania and Wisconsin, where both the Republican and Democratic presidential campaigns see possible victories.

At least two lawsuits challenging a proposed voter purge are pending in Florida, and a federal judge last month blocked implementation in that state of a new law restricting voter registration activities. Voter cases are also under way in Alabama, Texas, Tennessee and South Carolina.

In the Texas voter registration case, the stay request was considered at a hearing yesterday before three judges, James L. Dennis, who was appointed by Democratic President Bill Clinton; Catharina Haynes, appointed by Republican George W. Bush; and Jerry E. Smith, appointed by Republican Ronald Reagan.

Dennis dissented from the stay decision, with the other judges voting for it.

“The majority will assign reasons as soon as possible,” the appellate judges said yesterday.

Chad Dunn, a lawyer for Project Vote and its affiliate, Voting for America Inc., which challenged the law, didn’t return a call yesterday for comment on the stay.

The Republican-dominated Texas Legislature passed several revisions in its election code in 2011, imposing new requirements for third-party voter registration.

This included barring non-Texans from becoming volunteer deputy registrars, or VDRs, prohibiting them from accepting applications for residents outside the county in which they were appointed, requiring them to personally deliver rather than mail applications to election officials and restricting their compensation. The rules were passed to prevent voter registration fraud, attorneys for the state argued in court papers.

Project Vote and Voting for America sued Texas Secretary of State Hope Andrade in February, seeking an injunction barring the state from enforcing provisions of the law. Registration drives conducted by third-party organizations are critical to increasing the number of voters in the state, particularly racial minorities, the plaintiffs argued in court filings.

Costa granted the injunction Aug. 2, finding that the plaintiffs were likely to succeed in proving that certain provisions either conflicted with the federal Voting Rights Act or violated the First Amendment to the U.S. Constitution.

“The in-state requirement excludes millions of Americans from serving as VDRs in Texas,” Costa said. “The county limitation substantially restricts the number of potential voters a VDR can help register. And the compensation prohibition reduces the number of people willing to hire VDRs or to work as VDRs because it criminalizes performance-based pay.”

He also found no pressing need for stricter rules on voter registration.

“The state has not produced evidence showing that rampant fraud by out-of-state VDRs existed in pre-2011 Texas elections or continues to exist in those states that permit all Americans to engage in the voter registration activities protected by the First Amendment,” Costa said.

On Aug. 14, Costa, appointed by President Barack Obama, denied the state’s request for a stay pending appeal. The state appealed the order to the court in New Orleans.

“The state will be irreparably injured if the district court’s order remains in effect between now and the upcoming November elections,” lawyers for the state argued in an Aug. 16 filing.

In the Iowa case, Jeffrey Thompson, a state deputy attorney general, argued at yesterday’s hearing that the purge rules don’t harm Iowa voters and the organizations and the organizations challenging them don’t have standing.

“The rules are actually intended to provide protection to the very individuals” the organizations say they represent, Thompson told Polk County District Court Judge Mary Pat Gunderson. “They run the risk if they get what they’re asking for of doing harm to the people they’re trying to protect.”

Gunderson, an appointee of Republican Governor Terry Branstad, didn’t immediately issue a ruling.

The ACLU and the League of United Latin American Citizens of Iowa claim that Schultz, a Republican, instituted a new administrative rule in July that would require his office to periodically obtain lists of foreign nationals “from unspecified state and federal agencies and attempt to match those names to voter registration records,” as part of an effort to purge non-citizens from the voting rolls.

The secretary of state would then send notices to registered voters whose names appeared on one of these lists that they may not be citizens and may be illegally registered to vote, according to the lawsuit. The voter would have to respond within 14 days to dispute this information, or face being stricken from the eligible voters list, the ACLU lawyers said.

“The public has no way to be sure he’s using accurate, up- to-date voters from Iowa’s voter lists,” Ben Stone, executive director of the ACLU of Iowa, said in a statement.

The rules don’t provide obstacles to legitimate voters, lawyers for the state said in court papers.

“Ironically, the emergency rules challenged by the petitioners were promulgated by Secretary Schultz to protect the voting rights of Iowans whose immigration status in the state’s drivers’ license database might be incorrect or out of date,” Iowa Attorney General Tom Miller and Thompson said in a filing last month. Miller is a Democrat.

The rules would “ensure that any affected individual receive notice and a hearing before his/her name is removed from the voter registration records,” the state’s lawyers said. The state also contends the district court has no jurisdiction to order a temporary injunction barring the rules.

“There’s no such injury alleged or at issue in this case,” Thompson said yesterday. “This is about whether the secretary of state had the authority to do what he did.”

The Texas case is Voting for America Inc. v. Andrade, 12-40914, U.S. Court of Appeals for the Fifth Circuit (New Orleans). The Iowa case is American Civil Liberties Union of Iowa Foundation v. Iowa Secretary of State Matt Schultz, CV 9311, District Court, Polk County, Iowa (Des Moines).

To contact the reporter on this story: Margaret Cronin Fisk in Detroit at mcfisk@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net

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