Voting for America, Inc. v. John Steen
732 F.3d 382
5th Cir.
2013

Background

  • Plaintiffs (Voting for America, Brad Richey, Penelope McFadden, Project Vote) challenged several Texas VDR (volunteer deputy registrar) statutes after the 2011 amendments, seeking declaratory and injunctive relief.
  • The district court granted a preliminary injunction against five statutory restrictions: Non-Resident (no out-of-state VDRs), County (VDRs may serve only in appointed county), Compensation (limits on quota- or results-based pay), Photocopying (bar on VDRs photocopying/ scanning collected applications), and Personal Delivery (VDRs must personally deliver applications).
  • Texas Secretary of State appealed; this Court granted a stay of the preliminary injunction and reviewed likelihood of success on the merits.
  • Majority treated the challenges as primarily First Amendment and NVRA preemption claims and analyzed the challenged provisions separately rather than treating voter-registration drives as a single bundle of expressive conduct.
  • The Fifth Circuit majority reversed the preliminary injunction, holding plaintiffs failed to show a likelihood of success on facial First Amendment claims (or NVRA preemption for photocopying and mail delivery) after giving weight to the state enforcement interpretation and applying Anderson/Burdick and related standards.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Non‑Resident & County provisions (First Amendment) Prohibitions on out‑of‑state VDRs and limiting VDRs to their appointed county burden core political speech and reduce voices/audience for registration drives. These provisions regulate non‑expressive, ministerial conduct (receipt/delivery of applications); state interests (fraud prevention, accountability, enforceability) justify them under rational‑basis or Anderson/Burdick review. Receipt/delivery of completed applications is non‑expressive conduct; provisions survive review (rational basis; even under Anderson/Burdick they are justified).
Compensation provision (First Amendment) Bans on quota/compensation practices chill organizing, hiring, performance management and burden expressive activity of voter‑registration campaigns. Statute is reasonably read narrowly to prohibit per‑application pay and conditioning employment solely on quotas; this narrowing saves constitutionality to prevent fraud. Court accepts narrowing construction and upholds provision as consistent with First Amendment (lesser burden; justified to prevent fraud).
Photocopying provision (NVRA preemption) NVRA requires states to make records of voter‑registration implementation available and photocopiable; barring VDRs from copying precludes access and conflicts with NVRA. NVRA applies to records maintained by the State; VDR‑held, pre‑deliver applications are not yet State records and Texas may restrict copying to protect privacy and integrity. No direct conflict: NVRA requires states to make maintained records available, but does not preempt Texas restriction on photocopying of applications that are still in VDRs’ hands.
Personal delivery provision (NVRA preemption) NVRA requires states to accept mail voter registration applications; criminalizing mail submission by VDRs conflicts with NVRA and impedes lawful mail submissions. Texas permits voters to mail applications and counties must accept mailed applications; the statute governs VDR delivery method, not the State’s acceptance of mailed forms. No preemption: because counties must accept mailed applications and state law does not bar mail submissions by voters, there is no direct conflict with NVRA under the court's view.

Key Cases Cited

  • Meyer v. Grant, 486 U.S. 414 (1988) (petition circulation is core political speech; regulations that reduce voices/audience are suspect)
  • Buckley v. Am. Constitutional Law Found., 525 U.S. 182 (1999) (regulations on petition circulators can implicate core political speech)
  • Anderson v. Celebrezze, 460 U.S. 780 (1983) (balancing test for election‑related burdens)
  • Burdick v. Takushi, 504 U.S. 428 (1992) (Anderson/Burdick framework for evaluating burdens on voting and expression)
  • United States v. Stevens, 559 U.S. 460 (2010) (First Amendment facial‑challenge standard: substantial number of unconstitutional applications)
  • Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008) (facial‑challenge caution; avoid invalidating statutes unnecessarily)
  • Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 (2008) (state interest in preventing fraud can justify burdens on voting procedures)
  • Citizens United v. Federal Election Comm'n, 558 U.S. 310 (2010) (distinction between facial and as‑applied relief; scope of remedy matters)
  • United States v. Salerno, 481 U.S. 739 (1987) (standard for facial invalidation generally requires invalidity in all applications)
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