Stringer v. Pablos
This text of 320 F. Supp. 3d 862 (Stringer v. Pablos) is published on Counsel Stack Legal Research, covering District Court, W.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
ORLANDO L. GARCIA, CHIEF U.S. DISTRICT JUDGE
Pending before the Court is Plaintiffs' Motion for Summary Judgment (docket no. 77) and also Defendants' Motion for Summary Judgment (docket no. 82). The parties have filed responses (docket nos. 85, 88) and replies (docket nos. 87, 89). The Court has reviewed the record and the applicable law, and finds that Plaintiffs' motion should be granted and Defendants' motion should be denied.
I.
Statement of the case
This case concerns Texas's compliance with the National Voter Registration Act (NVRA) (also known as the "motor voter law"),
II.
Applicable standard
Summary judgment is proper when the evidence shows "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a) ; Anderson v. Liberty Lobby, Inc. ,
The Court must draw reasonable inferences and construe evidence in favor of the *868nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. ,
III.
The claims, defenses, and underlying facts
Plaintiffs are eligible Texas voters who engaged in NVRA-covered online driver's license transactions but were denied simultaneous voter registration applications and thereafter disenfranchised. They assert that the State of Texas, by and through the Department of Public Safety and the Secretary of State, engages in a practice that deprives Texans of their federal right to register to vote or update their voter registration simultaneously with their online driver's license renewal and change of address transactions. Plaintiffs allege that this practice, dating back several years, violates the NVRA and Equal Protection clause. Although advised of the violation, and admittedly able to change its practice and procedure, the State of Texas has refused to integrate voter registration into its online driver's license renewal and change of address process to ensure compliance with federal law.
Plaintiffs seek summary judgment on their claims that Defendants' online process violates the NVRA and Equal Protection clause. They also seek summary judgment on Defendants' affirmative defenses, including immunity, standing, and mootness.
Defendants admit that the key facts of this case are undisputed4 and essentially argue that state law prevents them from complying with federal law. Defendants seek summary judgment on the following grounds: Article III standing, statutory standing, mootness, and on the merits - based on their interpretation of the NVRA, state election law, and the Equal Protection clause.
The parties have stipulated to the following facts:
1. Defendant Rolando Pablos is the Texas Secretary of State ("SOS") and, under Texas Election Code § 31.001(a), serves as the State's Chief Election Officer.
2. Defendant Steven C. McCraw is the Director of the Texas Department of Public Safety ("DPS"). DPS operates offices around the State and issues Texas driver's licenses. All references to "driver's licenses" herein refer to Texas driver's licenses issued by DPS.
3. DPS is responsible for transmitting information to SOS about eligible driver's license applicants who - during covered driver's license transactions with DPS - indicate they wish to (1) register to vote, or (2) update *869their voter registration information. This information is transmitted by DPS to SOS in the voter registration extract file.
4. Plaintiffs Jarrod Stringer, Benjamin Hernandez, and John O. Woods, III (collectively, "Plaintiffs") changed their addresses on their DPS-issued driver's licenses through online transactions on Texas.gov.
5. Plaintiffs' counsel sent the Secretary of State letters dated May 27, 2015, October 23, 2015, and November 18, 2015, describing the change of address transactions in paragraph 4, and stating their allegation that DPS's and SOS's handling of these transactions violated the National Voter Registration Act.
6. Among other requirements, an applicant must be a U.S. citizen to be eligible to renew his driver's license or change the address on his driver's license online.
7.
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ORLANDO L. GARCIA, CHIEF U.S. DISTRICT JUDGE
Pending before the Court is Plaintiffs' Motion for Summary Judgment (docket no. 77) and also Defendants' Motion for Summary Judgment (docket no. 82). The parties have filed responses (docket nos. 85, 88) and replies (docket nos. 87, 89). The Court has reviewed the record and the applicable law, and finds that Plaintiffs' motion should be granted and Defendants' motion should be denied.
I.
Statement of the case
This case concerns Texas's compliance with the National Voter Registration Act (NVRA) (also known as the "motor voter law"),
II.
Applicable standard
Summary judgment is proper when the evidence shows "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a) ; Anderson v. Liberty Lobby, Inc. ,
The Court must draw reasonable inferences and construe evidence in favor of the *868nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. ,
III.
The claims, defenses, and underlying facts
Plaintiffs are eligible Texas voters who engaged in NVRA-covered online driver's license transactions but were denied simultaneous voter registration applications and thereafter disenfranchised. They assert that the State of Texas, by and through the Department of Public Safety and the Secretary of State, engages in a practice that deprives Texans of their federal right to register to vote or update their voter registration simultaneously with their online driver's license renewal and change of address transactions. Plaintiffs allege that this practice, dating back several years, violates the NVRA and Equal Protection clause. Although advised of the violation, and admittedly able to change its practice and procedure, the State of Texas has refused to integrate voter registration into its online driver's license renewal and change of address process to ensure compliance with federal law.
Plaintiffs seek summary judgment on their claims that Defendants' online process violates the NVRA and Equal Protection clause. They also seek summary judgment on Defendants' affirmative defenses, including immunity, standing, and mootness.
Defendants admit that the key facts of this case are undisputed4 and essentially argue that state law prevents them from complying with federal law. Defendants seek summary judgment on the following grounds: Article III standing, statutory standing, mootness, and on the merits - based on their interpretation of the NVRA, state election law, and the Equal Protection clause.
The parties have stipulated to the following facts:
1. Defendant Rolando Pablos is the Texas Secretary of State ("SOS") and, under Texas Election Code § 31.001(a), serves as the State's Chief Election Officer.
2. Defendant Steven C. McCraw is the Director of the Texas Department of Public Safety ("DPS"). DPS operates offices around the State and issues Texas driver's licenses. All references to "driver's licenses" herein refer to Texas driver's licenses issued by DPS.
3. DPS is responsible for transmitting information to SOS about eligible driver's license applicants who - during covered driver's license transactions with DPS - indicate they wish to (1) register to vote, or (2) update *869their voter registration information. This information is transmitted by DPS to SOS in the voter registration extract file.
4. Plaintiffs Jarrod Stringer, Benjamin Hernandez, and John O. Woods, III (collectively, "Plaintiffs") changed their addresses on their DPS-issued driver's licenses through online transactions on Texas.gov.
5. Plaintiffs' counsel sent the Secretary of State letters dated May 27, 2015, October 23, 2015, and November 18, 2015, describing the change of address transactions in paragraph 4, and stating their allegation that DPS's and SOS's handling of these transactions violated the National Voter Registration Act.
6. Among other requirements, an applicant must be a U.S. citizen to be eligible to renew his driver's license or change the address on his driver's license online.
7. An applicant completing an online transaction to renew his driver's license must enter his driver's license number, date of birth, the last four digits of his social security number, and the audit number on his driver's license.
8. An applicant completing an online transaction to change the address on his driver's license - or an applicant who changes the address on his driver's license when renewing it online - must enter his driver's license number, date of birth, the last four digits of his social security number, the audit number on his driver's license, his home address (street, city, state, zip code, and county) and, if different than his home address, his mailing address (street, city, state, zip code, county, and country).
9. The voter registration application on the SOS voter website is found here: https://webservices.sos.state.tx.us/vrapp/index.asp
10. Between April 2013 and February 26, 2016, Step 5 of the online renewal and change of address interface prompted the applicant to select "yes" or "no" beneath the statement "I want to register to vote. Selecting 'yes' does not register you to vote. A link to the [SOS] voter website (where a voter application may be downloaded or requested) will be available on your receipt page." (emphasis original)
11. The signature that appears on the license generated as a result of a customer's online driver's license renewal or change of address transaction is an image of the applicant's physical signature, electronically captured during the applicant's most recent in-person transaction in a DPS field office. (On the DL-14A and DL-43 forms this is referred to as the applicant's "electronic signature").
12. Plaintiffs did not submit a change of address that relates to a Texas driver's license in person during the change of address transactions that form the basis of Plaintiffs' claims in this lawsuit.
13. Plaintiffs did not submit a change of address that relates to a Texas driver's license by mail during the change of address transactions that form the basis of Plaintiffs' claims in this lawsuit.
14. Plaintiffs did not complete a voter registration application on the Secretary of State's website through the link provided on the receipt page at the end of the change of address transactions that form the basis of Plaintiffs' claims in this lawsuit.
*87015. After receiving the letters described in Stipulation 5, Defendants offered, through Plaintiffs' attorneys, to confirm Plaintiffs' voter registration status and provide assistance in updating their voter registration if they desired.
16. Plaintiffs did not attempt to renew their Texas driver's license online during the change of address transactions that form the basis of Plaintiffs' claims in this lawsuit.
17. Plaintiffs are currently registered to vote in the counties where in the letters referenced in Stipulation 5 each Plaintiff indicated they wished to be registered.
18. Plaintiff Jarrod Stringer did not attempt to cast a ballot in the federal general election in 2012.
19. Plaintiff Jarrod Stringer was able to cast a ballot in the 2016 federal general election.
20. Plaintiff John Woods was able to cast a ballot in the 2012 and 2016 federal general elections.
21. Plaintiff Benjamin Hernandez was able to cast a ballot in the 2012 and 2016 federal general elections.
22. There were no special federal elections in Texas in 2013 and 2015.
(Docket no. 94, Exh. A).
The record reflects the following additional facts. Although these facts are not stipulated, they are generally undisputed:
Each named Plaintiff moved within Texas, changed his driver's license address using the online driver's license renewal and change-of-address website,5 indicated "yes" in response to the prompt "I want to register to vote," but was not registered to vote. Each Plaintiff was prevented from fully exercising his fundamental right to vote in a subsequent election due to his outdated voter registration record.
Benjamin Hernandez had been a registered voter in Ector County, Texas since the age of 18. He retired from his job with the City of Odessa in February 2013 and moved to Dallas County. He went online to change his driver's license address. After inputting his information, Mr. Hernandez checked "yes" to the voter registration question and believed his voter registration would be updated and he would thereafter be registered to vote in Dallas County. On election day in 2014, Mr. Hernandez attempted to vote but was told his name was not on the rolls in Dallas County. He was allowed to cast a provisional ballot but later received notice that his vote was not counted because he was not registered to vote in Dallas County. See docket no. 94-4, deposition of B. Hernandez, at 16:11-17, 21-24; 18:6-12; 19:2-8, 21-22; 27:18-20; 28:2-6, 16-25; 29:1-2, 8-11; 32:2-6, 17-22; 34:8-11, 23-25; 37:1-13. See also docket no. 77, appx. 149-165.
Dr. John Woods III changed his residence from Travis County to Harris County in June 2015. He went online to change his driver's license address. After inputting his identifying information, he checked the box to register to vote. By checking "yes," Dr. Woods believed his voter registration had been updated with the new address. But that did not happen. On election day in 2015, Dr. Woods called Harris County to identify his polling location. He was told *871that he was still registered in Travis County, rather than Harris County, and any provisional ballot cast in Harris County would likely not be counted. Dr. Woods went to the polling location anyway, cast his vote, and was later informed in writing that his provisional ballot was not counted. See docket no. 94-6, deposition of John Woods, at 22:8-13; 25:16-25; 26:1-5; 52:7-25; 53:1-6; 62:3-6; 63:3-25; 64:1-15; 65:1-9; 66:6-11. See also docket no. 77, appx. 188-204.
Jarrod Stringer moved from Tarrant to Bexar County and sought to change his address for driver's license and voter registration purposes. He thought that the DPS website would enable him to change his voter registration at the same time he changed his driver's license. Mr. Stringer went online and input all the requested information. There was a box he could check if he wanted to register to vote and he did so. Mr. Stringer believed he had "done the necessary steps to become a registered voter in Bexar County." He then attempted to vote in November 2014 and was told by poll workers that his name was not on the rolls. Mr. Stringer called Bexar County and was told he could vote only for statewide elections because he wasn't registered to vote in Bexar County. See docket no. 94-5, deposition of J. Stringer, at 15:8-24; 16:16-25; 17:1-5; 31:1-5, 19-24; 32:16-33:1; 45:7-46:22; 47:8-17. See also docket no. 77, appx. 167-186.
Plaintiffs' testimony regarding their personal experiences with DPS's online process is consistent with the testimony of State officials and employees with knowledge of how the process worked in the past and how it currently works. DPS operates offices around the State and issues driver's licenses and other state identification cards. DPS is also a designated voter registration agency, pursuant to
Texas has an NVRA implementation plan which explains: "The Department will [provide to each person who applies in person] a form and procedure that combines the department's application form for a license, identification card or EIC with an officially prescribed voter registration application form ... The form will also inform the applicant that the applicant's electronic signature provided to the department will be used for submitting the *872applicant's voter registration application." Docket no. 77, appx. 30 (emphasis added).11 The implementation plan further states that the "department will use a change of address form and procedure that combines department and voter registration functions. The change of address form submitted in person will allow a licensee or cardholder to indicate whether the change of address is also to be used for registration purposes."
When a "motor voter" applies for a Texas driver's license the first time, he must appear in person. During the transaction he signs a key pad which captures his electronic signature.12 After a driver's license is issued, subsequent transactions (for renewal, replacement, or change of address) may be handled by mail, online, or even by phone. For voter registration purposes, the change of address forms submitted by mail have been handled in the same manner as renewal/change of address forms submitted in person. In both form DL-43 (the in-person application for renewal/replacement/change of address) and form DL-64 (the mail-in application for change of address) the driver's license and voter registration applications have been integrated or combined into one simultaneous transaction so that a customer need only check a single box indicating that he/she would like to register or update his/her voter information. After checking the box during the transaction, no further steps are necessary.13 DPS receives the information and the motor voter's previously stored electronic signature, along with all other identifying data, is electronically submitted to SOS to be used for voter registration purposes.14 Upon receipt, the SOS then transmits the data to local registrars for completion of the voter registration process.15 Although the in-person and mail-in renewal/change of address *873forms contain a blank for a signature, neither DPS nor SOS use the signature on paper.16 Instead, DPS and SOS use the previously stored electronic signature.17 In fact, SOS admits that it never uses paper signatures obtained through DPS transactions - it uses only previously imaged electronic signatures for voter registration purposes.18 As Keith Ingram, the SOS 30(b)(6) representative, testified:
Q: So you identified for me or explained to me why - what the electronic signature or the keypad signature at DPS is used for. It's used for the signature that's required in the Texas Election Code. You read me the section. Is that right?
A: That's right.
Q: What's the ink signature on the DPS's physical forms used for as far as voter registration?
A: I don't know. I don't know if it's used for anything. Once they've applied in person at the office, they've signed it electronically.
* * *
Q: On the ... driver's license forms ... it says, "By providing my electronic signature, I understand the personal information on my application form and my electronic signature will be used for submitting my voter registration application to the Secretary of State's Office." Correct?
A: That's what it says.
Q. Okay. And so that's indicating to the prospective voter that the electronic signature is what's used as the signature that's compliant with the Texas Election Code?
*874A: The physical signature that's electronically captured, yes.
Q: Okay. Back to your point about the online transactions not containing a signature, the DPS does use the prior provided electronic signature that - for the driver's license that they - the customer used - provided the last time they were in person. Correct?
A: Presumably, yes.
Q: The same goes for the mail-in change of address transaction - are you looking at your driver's license there?
A: Yeah. Because this one was renewed online, and so I guess that I wrote that signature at their signature capture device quite a while ago....
Q: For the mail-in change of address form that ... DPS receives that has the voter registration question, there is not an electronic signature or a - use your phrase - the physical signature provided on a keypad provided for that change of address interaction. Correct?
A: No. There's a physical signature on the - on the address change application.
Q: Right. But the information that gets sent on to the voter registrars through the Secretary of State's Office is the data that's pulled from that form and then the electronic signature that was previously provided by the customer in person at a DPS office?
A: That's my understanding, yes.
Q: Well, is that the Secretary of State's understanding?
A: That is the Secretary of State's understanding. You bet.
Docket no. 94-11, appx. 39, 42, deposition of K. Ingram, at 50:1-11; 95:14-97:14.
Sheri Gipson with DPS also testified:
Q: So the signature that is sent for an in-person transaction where someone answers "yes" to the voter registration question and - and similarly when someone changes their address - excuse me - address via the mail, the signature that's sent for both of those voter registration applications, that's the electronic signature; is that right?
A: That is correct.
Q: And that's sent to the Secretary of State?
A: That is correct.
Q: Okay. The ink signature is never sent to the Secretary of State, correct?
A: That is correct.
* * *
Q: Does anyone go through and compare these two?
A: Not typically, no....
* * *
Q: Okay. So then the mail-in signatures are never compared [with the stored electronic signatures]....
A: During the routine process, it would never be compared.... When I say "routine process," what I'm talking about is the individual that's processing that mail renewal application, they would never compare that signature.
Docket no. 77, appx. 69, deposition of S. Gipson, at 203:19-204:7; appx. 79 at 234:25-235:1; 236:19-237:9.
Because preexisting electronic signatures, rather than signatures on paper, are used for paper (in-person and mail-in) renewal and change of address transactions, it would seem logical that preexisting electronic signatures would be used for paperless (online) transactions. Yet Defendants claim that, under Texas law, renewal and change of address transactions performed online require a signature on paper for voter registration purposes. As Mr. Ingram testified:
Q: So in that same way, the online transaction could utilize the previously provided electronic signature that was provided *875in person by the customer for the voter registration application form that gets to the voter registrar in the same way that the change of address mail-in occurs?
A: It could if the law allowed it, but the law doesn't allow it, so it can't.
Q: What portion of the [Texas] law doesn't allow it?
A: 13.002(b).
Docket no. 94-11, deposition of K. Ingram, at 97:15-24; docket no. 77, appx. 42. Because Defendants assert that Texas law requires a signature on paper, and a signature on paper during a paperless transaction is not possible, Defendants essentially claim they should be excused from compliance with the NVRA when it comes to online renewal and change of address transactions.19
Prior to 2013, a motor voter who engaged in an online/paperless transaction for a driver's license renewal or change of address would provide the same in-depth identifying information required for an in-person or mail-in transaction, but when reaching the question of whether he would like to register to vote or update his voter information, checking the "yes" box would automatically default to "no." Thus, while the user may have been led to believe that his "yes" answer would result in updating his voter information, and there was the appearance of compliance with the NVRA, there was never an intent on the part of DPS or SOS to actually update the voter registration information. Thus, the answer to the question regarding voter registration was completely meaningless. SOS was aware of the NVRA requirements. SOS was also aware that the online voter registration question, programmed to automatically default to "no," was completely meaningless.20 As Mr. Ingram testified:
Q: Why is there a voter registration question on the online DPS transaction - application? Excuse me.
A: Well, I imagine it's because of Section 5 of the National Voter Registration Act of 1993.
Q: Could you elaborate on that a little bit?
A: Sure. The National Voter Registration Act of 1993 required that motor vehicle agencies, in our case the DPS, whenever a person has a driver's license transaction - driver's license transaction, that they should simultaneously offer the right - the ability to update their voter registration or register to vote for the first time. That's why the NVRA is called the Motor Voter law.
* * *
Q: Okay. So in - back in 2012, the Secretary of State's office was aware that the answer to the "do you want to register to vote" question online was defaulting to no. Is that correct?
A: Right.
Q: Was there any - any discussion at that point with the Department of Public Safety to - to make that change?
A: Not that I recall.
*876Docket no. 77, appx. 40-41, deposition of K. Ingram at 62:4-17; 84:24-85:8.
As explained in Mr. Ingram's deposition, the automatic default to "no" for voter registration was the subject of a 2012 complaint by an unidentified motor voter. Docket no. 77, appx. 41, deposition of K. Ingram at 83:15-85:3. SOS responded: "That is something we can discuss with DPS in the future." Docket no. 77, appx. 41, deposition of K. Ingram at 84:16-18. Mr. Ingram did not recall any subsequent discussions. After some passage of time, DPS did remove the automatic default to "no." Docket no. 77, appx. 41, deposition of K. Ingram at 82:7-13.
Thereafter, until February 27, 2016, Step 5 of the online renewal and change of address interface was changed to prompt the applicant to select "yes" or "no" beneath the statement "I want to register to vote." It no longer defaulted to "no," but selecting "yes" did not provide a simultaneous voter application. Instead, it gave the user a link to the SOS voter registration website for a completely separate application process. Docket no. 77, appx. 118, admission no. 7.
After February 27, 2016, Step 5 of the online renewal and change of address interface was changed to prompt the applicant to select "yes" or "no" to answer the question "Do you want to request a voter application?" Docket no. 77, appx. 118, admission 8, 9. While the online process currently accepts a "yes" answer to the voter application question, the transaction still ends there. The user is still not provided a simultaneous application for voter registration purposes. Instead, when a user responds with a "yes" answer to the voter application question, the user is simply given a website link to the SOS office.21 See Stipulation no. 10, p. 5, supra. If the user goes to the SOS website, he must request and fill out a completely separate voter registration application as if there had been no DPS transaction at all.22 For an in-county change of address, SOS will handle the transaction but it's still a completely separate process from the DPS transaction. For an out-of-county change of address, the application must be retrieved, printed, filled out, and mailed or delivered in person to the county registrar in order to update the voter registration. The application seeks the same information required by DPS for an online driver's license change of address but the motor voter must go through a completely different governmental entity (SOS) with a completely separate application process.23 Thus, it is indisputable that the online DPS renewal/change of address transaction and SOS voter registration transaction are not simultaneous, but rather entirely separate application procedures conducted through separate agencies.24 If the motor *877voter does not take these extra steps - go to the SOS website, request an application, print out the application, fill out and sign the application, and then mail or hand deliver it to the country registrar - he will not be registered to vote.
Both DPS and SOS claim they cannot comply with the NVRA and integrate DPS online renewal/change of address with SOS voter registration to provide a simultaneous application because the Texas Election Code requires a signature. Docket no. 94-7, deposition of B. Schonhoff, at 195:11-17; see also docket no. 94-11 and docket no. 77, appx. 42, deposition of K. Ingram, at 97:15-24. Yet SOS admits that it uses previously stored electronic signatures for all voter registration applications that originate with DPS regardless of whether those applications are paper transactions. As Betsy Schonhoff testified:
Q: The signature that Secretary of State is currently using for voter registration applications is an electronic signature that is provided when a person goes in person to a DPS office; is that right?
A: When they are - when they are in the application file, you mean?
Q: Yes, the voter registration application.
A: Yes, It's what they have signed on that signature pad. That's my understanding.
Q: Turning your attention to the mail-in change of address. You acknowledge that the Secretary of State does receive voter registration applications from change of address mail-ins that DPS processes; is that correct?
A: That's correct.
Q: Yes.
A: It is my understanding they treat in-person just like - mail just the same as in person.
Q: But the mail-in - correct me if I am wrong - the mail-in address to the application for update with DPS, the signature that's on that form is not extracted and somehow the Secretary of State gets access to it; is that correct?
A: That's my understanding.
Q: ... It is your understanding that the current law requires a signature for the voter registration application. Do I have that right?
A: Yes.
Q: The mail-in forms that you all are getting information from, from DPS, uses the prior provided electronic signature from that customer; is that right?
A: That's my understanding.
Docket no. 94-7, deposition of B. Schonhoff, at 195:18-196:25.
Defendants also stipulate that DPS uses electronic signatures for all online driver's license renewal or change of address transactions. Docket no. 94, Stipulation 11 ("The signature that appears on the license generated as a result of a customer's online driver's license renewal or change of address transaction is an image of the applicant's physical signature, electronically captured during the applicant's most recent in-person transaction in a DPS field office (On the DL-14A and DL-43 forms this is referred to as the applicant's 'electronic signature')"). Defendants admit that they even use electronic signatures for driver's license transactions conducted over the telephone. See docket no. 94-12, deposition of S. Gipson, at 175:2-23 ("Telephone transactions are handled in the same manner as an online transaction ... Q: So when a customer renews a driver's *878license on - over the telephone, does DPS use the signature that was previously on file to - to put on the customer's renewed driver's license? A: Yes.").
Defendants admit that the personal information required for authenticating online transactions is equal to or even more rigorous than the identifying information used for in-person and mail-in transactions.25 They also admit there are no technological barriers to simultaneous online transactions. Again, Ms. Schonhoff testified:
Q: ... If they send - DPS collects and sends to you, the Secretary of State's office, all of the information they currently send to you for in-person transactions where the individual checks "yes," I want to register to vote, they send you all of that same information, the same data points, the same electronic signature, the TEAM system on your end could process it in the same way that it currently processes the information that comes for in-person transactions at DPS?
A: From a technical standpoint?
Q: Yes.
A: That's correct.
Docket no. 94-7, deposition of B. Schonhoff, at 222:9-22.
And Mr. Ingram also testified:
Q. Well ... going back to the mail-in change of address with DPS, that information goes on to the Secretary of State. If someone chooses to register to vote, that signature is retrieved from DLS and sent on to the Secretary of State. Right?
A: It's retrieved from wherever they keep it, yes.
Q: Okay. And, presumably, that same signature could be sent on if the person answered yes to the voter registration question online?
A: If it was legal to do so. I've already told you I think that's technically possible. You bet.
Q: Okay. And -
A: And I don't think it would cost a lot of money.
* * *
Q: But the Secretary of State does know that DPS is able to pull the proper signature to send on for voter registration purposes to the Secretary of State for mail-in change of address forms?
A: I'm not arguing with you that this is not possible. That is not my argument at all. My argument is exactly to the contrary. This is a very possible thing to do what you're saying if it was legal, and it's not legal ... So I'm not contesting the logistics of it. We can agree that it's a possible thing to do.
Docket no. 77, appx. 45, deposition of K. Ingram at 184:12-185:1; 186:5-16. See also docket no. 94-9, deposition of E. Hutchins, at 99:22-100:2; docket no. 94-10, deposition *879of J. Crawford, at 142:6-18; 143:12-144:21 (DLS could send all the information it currently obtains to the Secretary of State's office, and "it could also send the previously provided electronic signature from that customer, just like it does with a mail-in change of address").26 While feasible, Defendants refuse to use the voter information and technology currently available because they claim the Texas Election Code does not allow the use of previously captured electronic signatures for online transactions - even though they already use them for mail-in and in-person transactions. Plaintiffs disagree with Defendants' legal argument and assert that because SOS uses previously captured electronic signatures for voter registration purposes in all other instances, there is no reason why Defendants cannot use those same electronic signatures for online transactions.
IV.
Overview of the NVRA
The NVRA was enacted in 1993 pursuant to Congress's constitutional authority under the Elections clause to "make or alter regulations" which have an effect upon federal elections. U.S. CONST. art. 1, § 4, cl. 1. Specifically, Congress found that -
(1) the right of citizens of the United States to vote is a fundamental right;
(2) it is the duty of the Federal, State, and local governments to promote the exercise of that right; and
(3) discriminatory and unfair registration laws and procedures can have a direct and damaging effect on voter participation in elections for Federal office and disproportionately harm voter participation by various groups, including racial minorities.
The stated purposes of the Act are -
(1) to establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office;
(2) to make it possible for Federal, State, and local governments to implement this chapter in a manner that enhances the participation of eligible citizens as voters in elections for Federal office;
(3) to protect the integrity of the electoral process; and
(4) to ensure that accurate and current voter registration rolls are maintained.
Based on these findings and for these stated purposes, Congress imposed national procedures for voter registration for elections for federal office as follows:
(a) In general
Except as provided in subsection (b), notwithstanding any other Federal or State law, in addition to any other method of voter registration provided for under State law, each State shall establish procedures to register to vote in elections for Federal office -
(1) by application made simultaneously with an application for a motor vehicle driver's license pursuant to section 20504 of this title;
*880(2) by mail application pursuant to section 20505 of this title; and
(3) by application in person -
(A) at the appropriate registration site designated with respect to the residence of the applicant in accordance with State law; and
(B) at a Federal, State, or nongovernmental office designated under section 20506 of this title.
Section 20504 specifically describes the requirements for a simultaneous application for voter registration and motor vehicle driver's license:
(a) In general
(1) Each State motor vehicle driver's license application (including any renewal application ) submitted to the appropriate State motor vehicle authority under State law shall serve as an application for voter registration with respect to elections for Federal office unless the applicant fails to sign the voter registration application.
(2) An application for voter registration submitted under paragraph (1) shall be considered as updating any previous voter registration by the applicant.
* * *
(c) Forms and procedures
(1) Each State shall include a voter registration application form for elections for Federal office as part of an application for a State motor vehicle driver's license -
(2) The voter registration application portion of an application for a State motor vehicle driver's license -
(A) may not require any information that duplicates information required in the driver's license portion of the form (other than a second signature or other information necessary under subparagraph (C) );
(B) may require only the minimum amount of information necessary to -
(i) prevent duplicate voter registrations; and
(ii) enable State election officials to assess the eligibility of the applicant and to administer voter registration and other parts of the election process;
(C) shall include a statement that -
(i) states each eligibility requirement (including citizenship);
(ii) contains an attestation that the applicant meets each such requirement; and
(iii) requires the signature of the applicant, under penalty of perjury;
* * *
(d) Change of address
Any change of address form submitted in accordance with State law for purposes of a State motor vehicle driver's license shall serve as notification of change of address for voter registration with respect to elections for Federal office for the registrant involved unless the registrant states on the form that the change of address is not for voter registration purposes.
Section 20506(a)(5)(C) further states that "A person who provides service ... shall not ... "take any action the purpose or effect of which is to discourage the applicant from registering to vote."
And finally, Section 20510 provides civil enforcement by the Attorney General and a private right of action for any person "who is aggrieved by a violation of this chapter,"
The notice provision in § 20510(b) further states:
*881(1) A person who is aggrieved by a violation of this chapter may provide written notice of the violation to the chief election officials of the State involved.
(2) If the violation is not corrected within 90 days after receipt of a notice under paragraph (1), or within 20 days after receipt of the notice if the violation occurred within 120 before the date of an election for Federal office, the aggrieved person may bring a civil action in an appropriate district court for declaratory or injunctive relief with respect to the violation.
(3) If the violation occurred within 30 days before the date of an election for Federal office, the aggrieved person need not provide notice to the chief election official of the State under paragraph (1) before bringing a civil action under paragraph (2).
V.
Analysis
The Court will first address the issues that Defendants have raised in their defense, and will then address the merits of Plaintiffs' case.
A. Statutory standing/notice
Defendants claim that Plaintiffs lack statutory standing for failure to comply with the notice provision in the NVRA,
In response to the notice letters, the parties exchanged several written communications over a six month period, met in person, and attempted to work out the non-compliance issues raised in the notice letters.27 Plaintiffs did ultimately get registered to vote, but Defendants disagreed with Plaintiffs about what the NVRA requires and refused to take the steps that Plaintiffs contend are required by the NVRA to cure the underlying violations. Plaintiffs filed this lawsuit on March 14, 2016, more than 90 days after receipt of notice and an opportunity to correct the violations. Docket no. 1.28
Defendants rely on Scott v. Schedler ,
Plaintiffs in this case did not fail to provide notice and Defendants have not corrected the violations made the basis of Plaintiffs' complaint. Defendants' broad assertion - that offering registration assistance after receiving notice excuses the prior/ongoing violation, strips the plaintiff of standing, and precludes suit regardless of the nature of the violation - ignores the mandates of the NVRA, the facts and holding in the Scott case, and the facts and underlying violations in this case.30 Plaintiffs have complied with the statutory notice requirements and have standing to pursue their claims under the NVRA.31
*883B. Article III standing/mootness
To establish Article III standing, a plaintiff must show an "injury in fact" that is concrete, particularized, and actual or imminent, not conjectural or hypothetical; that the injury is "fairly traceable" to the challenged conduct of the defendant; and that it is likely, not merely speculative, that the injury can be redressed by a favorable decision. Lujan v. Defenders of Wildlife ,
Defendants claim that their offer of assistance in updating Plaintiffs' voter information and/or confirming their registration status after the violation renders this controversy moot. But Defendants were simply providing the assistance that they are required by law to provide to voters. See
Defendants' mootness argument also overlooks the two-fold nature of Plaintiffs' cause of action. Plaintiffs contend that the State's online process itself is unlawful under the NVRA; thus, they allege not only disenfranchisement, but also a violation of the statutory right to a simultaneous application for both voter registration and driver's license renewal and change of address. Defendants' assertion - that post-notice voter registration assistance effectively cures any NVRA violation - ignores the clear mandates of the NVRA. The lack of voter registration and resulting disenfranchisement were merely the symptoms of the underlying violation, and treating the symptoms does not cure the underlying violation. Thus, the controversy is not moot just because Plaintiffs were ultimately registered to vote.
Defendants also argue that Plaintiffs' injuries are not redressable and their claims are moot because they were disenfranchised only in past elections and the "capable of repetition" exception to mootness does not apply because there is not a reasonable expectation that Plaintiffs will be disenfranchised in this manner in the future. Voting-related lawsuits do not become moot just because an election has passed. Ctr. for Indiv. Freedom v. Carmouche ,
*885Defendants further argue that Plaintiffs have failed to establish Article III standing because their injuries stem from their own failure to take the extra steps to print, complete, and mail paper voter registration forms through SOS as instructed in their online driver's license transactions with DPS. The irony of this argument does not go unnoticed. In sum, Defendants claim that Plaintiffs and others should never have Article III standing to sue for the State's noncompliance with the NVRA if they do not follow the State registration process that allegedly violates the NVRA. As Plaintiffs explained in their deposition testimony, they believed their change of address transaction for driver's license purposes also served to update their voter registration. They showed up at the polls to vote in the following election only to discover that their registration had not been updated. Even if they did not complete the SOS registration process (which they believed they had done), the failure to complete the extra steps put in place by the State does not strip them of Article III standing to pursue a claim under federal law. Nothing in the NVRA requires Plaintiffs or others to exhaust a state process before pursuing a federal claim - especially when the state process itself is alleged to violate the federal law being enforced.
Defendants rely upon the holding of the Fifth Circuit in Westfall v. Miller ,
*886C. Dr. Woods' standing
Defendants also claim that Dr. Woods does not have standing individually to pursue a claim under the NVRA because he was disenfranchised only in the 2015 election and the ballot did not include any federal contests.33 This standing argument against Dr. Woods individually may present a closer question than the standing challenges against Plaintiffs collectively. In Broyles v. Texas ,
The Court believes that deciding this issue based on whether a subsequent election is state or federal and whether the plaintiff was disenfranchised in whole or in part is inconsistent with traditional notions of standing. First, the NVRA's private right of action "extend[s] standing under the Act to the maximum allowable under the Constitution." ACORN v. Fowler ,
The statutory violation and requisite injury occurred at the moment Dr. Woods was denied a simultaneous voter registration application. This should be sufficient to confer standing. Later disenfranchisement (regardless of the nature of the election) furthered the injury, but the violation and immediate injury had already occurred during the online transaction with DPS. NVRA expressly reminds us that "it is the duty of the Federal, State, and local governments to promote the exercise of [the fundamental right to vote]."
D. Waiver of immunity
Defendants also assert that Plaintiffs have failed to validly invoke the NVRA's limited waiver of immunity and are not entitled to bring an action under the Ex parte Young exception to immunity.
The NVRA imposed voter registration requirements on the states to ensure that all practical barriers that make voter registration more restrictive or inconvenient are removed. More than thirty years later, there are states that still refuse to comply with its mandates. Congress's abrogation of immunity under the NVRA is clear and unequivocal. When a state fails to comply with the Act, the Act authorizes judicial intervention. The Attorney General can seek declaratory or injunctive relief, and the Act establishes a private right of action for individuals aggrieved by a violation who meet the Act's notice requirement.
E. Renewal v. change of address
Defendants also allege that Plaintiffs' challenge should be restricted to online change of address transactions, not online renewal transactions, because Plaintiffs' transactions were for a change of address rather than renewal. However, this argument seems to go to the underlying reason for the transaction, rather than the lawfulness of the process being challenged. Regardless of whether a Texan seeks to change his address or renew his driver's license online, the process is the same and the outcome is the same. DPS uses the same website (Texas.gov) and the same "Driver's License Renewal and *888Change of Address" system, which authenticates users, detects eligibility, and processes data in the same manner for both renewals and changes of address. Docket no. 94-9, deposition of E. Hutchins, at 30:4-31:16; 33:8-34:1; docket no. 94-12, deposition of S. Gipson, at 37:10-16 (the process is combined online, "it's one system interface"); docket no. 93, website links and exh. A-1, A-2, A-10 (DPS/Driver's License Division online process for driver's license renewal and/or change of address). Neither type of transaction, using the same online process, allows simultaneous applications for voter registration as required by the NVRA. Docket no. 94-12, deposition of S. Gipson, at 37:10-40:5. Given that Defendants have chosen to combine the online process and use the same system for both change of address and renewal transactions, a change in programming to allow online simultaneous voter registration would mean a change for both types of transactions. Likewise, an NVRA violation in online change of address transactions imputes a violation in online renewal transactions because Defendants admit that the online process (which encompasses both) does not allow simultaneous voter registration. Having combined the online process for both types of transactions, both types of transactions fall within the same mandates under
In sum, the jurisdictional challenges and defenses raised in Defendants' motion for summary judgment are virtually identical to those raised in their motion to dismiss, which the Court previously denied. Docket no. 52. Nothing in the law or the record compels a different conclusion at this stage of the proceedings.
F. Merits of the NVRA claims
First, Plaintiffs contend Defendants have violated and continue to violate the NVRA by failing to provide simultaneous applications for voter registration during online driver's license transactions. Second, Plaintiffs contend Defendants have violated and continue to violate the NVRA by requiring motor voters who use the online process to take additional steps to update their voter registration and separately submit information through a different transaction with a different agency that duplicates information required in the driver's license transaction. And third, Plaintiffs allege that Defendants have violated the NVRA by failing to ensure eligible applicants are registered to vote and to transmit voter registration information submitted online to the appropriate State election official within the statutorily required timeframe. Docket no. 1, pp. 15-17.
1. Statutory interpretation
Because the parties disagree on the meaning of some of the applicable provisions in the NVRA, the Court is guided by the governing principles of statutory construction. The first step is to determine whether the statutory text, when considered in context, is plain and unambiguous. If the statutory language is plain, the Court must enforce it according to its terms. King v. Burwell , --- U.S. ----,
2. The NVRA applies to motor voter transactions conducted online
The requirements in the NVRA clearly apply to online transactions (also known as electronic, remote, or internet transactions). There is nothing in the statute that expressly or impliedly excludes online transactions; instead, the plain language of the NVRA indicates that it applies to all transactions. See
Defendants have not argued that the NVRA does not apply to online or remote transactions. In fact, they have admitted that compliance with the NVRA is required for online transactions. See docket no. 77, appx. 65, deposition of S. Gipson (DPS), at 94:5-12 (Q: Why does DPS include a voter registration question during the online renewal and change of address portion? A: So it is part of the plan between the Secretary of State and Department of Public Safety in compliance with the voter registration question being combined as part of the application process for a diver license or ID"); 95:5-15 (Q: What requires you to do that? A: ... basically the NVRA and Chapter 20 of the Election Code and Texas Statute.); docket no. 94-8, deposition of S. Gipson at 136:20-23 (Q:
*890Why does DPS require customers to answer that question if they don't even retain the answer? A: The - because we need to offer them the availability of the application); docket no. 94-11, deposition of K. Ingram (SOS), at 62:4-8 (Q: Why is there a voter registration question on the online DPS transaction - application? ... A: Well, I imagine it's because of Section 5 of the National Voter Registration Act of 1993. Q: Could you elaborate on that a little bit? A: Sure. The National Voter Registration Act of 1993 required that motor vehicle agencies, in our case the DPS, whenever a person has a driver's license transaction - driver's license transaction, that they should be simultaneously offered the right - the ability to update their voter registration or register to vote for the first time. That's why the NVRA is called the Motor Voter law."). Yet Defendants' compliance with the NVRA falls short when it comes to online transactions. Texans have repeatedly complained about DPS's failure to process voter registration information through its online system, but Defendants still refuse to correct the deficiencies. Thus, rather than furthering the purpose of the NVRA by "establish[ing] procedures that will increase the number of eligible citizens who register to vote,"34 the State is thwarting the efforts of Texans who wish to register to vote.
3. The "simultaneous application" requirement
Congress was not subtle about requiring DPS, a voter registration agency, to provide a simultaneous application for voter registration. The terms are used more than once in the statute, and its plain meaning is clear and unambiguous. Section 20503, titled "National procedures for voter registration for elections for Federal office," directs that "each State shall establish procedures to register to vote ... by application made simultaneously with an application for a motor vehicle driver's license."
Section 20504, titled "Simultaneous application for voter registration and application for motor vehicle driver's license" explains this requirement as one simultaneous application form that serves dual purposes - driver's license and voter registration. This section, when read in context, not only requires that the applications be simultaneous, but discusses them in terms of a single transaction. Under subsection (a), each State motor vehicle driver's license application "(including any renewal application ) ... shall serve as an application for voter registration " and "[a]n application for voter registration ... shall be considered as updating any previous voter registration by the applicant. " Under subsection (c), "[e]ach State shall include a voter registration application form ... as part of an application for a State motor vehicle driver's license," and the "voter registration application portion of an application for a State motor vehicle driver's license ... may not require any information that duplicates information required in the driver's license portion of the form."
Defendants seem to have a clear understanding of what the statute requires, yet they distort the statutory language in the interpretations they propose. For example, Mr. Ingram with SOS testified that "the NVRA requires a simultaneous opportunity to register to vote." See docket no. 77, appx. 40, deposition of K. Ingram, at 63:15-16; 64:24-25; see also appx. 113, RFA no. 4 (inserted the word "opportunity" when asked to admit their legal obligations under the NVRA). Defense counsel uses the same "simultaneous opportunity" argument in their briefs. But the NVRA plainly and unequivocally requires DPS, a voter registration agency, to provide a simultaneous application - not merely a "simultaneous opportunity" to go through a second duplicate application process with SOS. "Opportunity" could mean many things, but we do not need to speculate about what it means because the NVRA does not use that term. Likewise, Ms. Gipson testified that DPS "need[s] to offer them the availability of the application." Docket no. 94-8, deposition of S. Gipson, at 136:20-23. But the NVRA requires more than simply making voter registration applications "available." Again, making applications "available" could mean many things but the NVRA does not use that term. The operative terms in the NVRA are much more commanding and specific: it clearly and unequivocally requires a "simultaneous application" with DPS (the voter registration agency), not a mere "opportunity" to go through a wholly separate, non-simultaneous application process with SOS. If the Court were to accept the argument that DPS can simply direct Texans to SOS to obtain, fill out, sign, and mail in or deliver in person a wholly separate voter registration form, the language in the NVRA would be rendered meaningless. Plaintiffs are correct in their assertion that the central fact of this case has never been disputed: when eligible Texans update their driver's licenses online with DPS, they are not provided a simultaneous application to register to vote or update their voter registration information. The NVRA's requirement that DPS, a voter registration agency, provide a simultaneous application for both driver's license and voter registration purposes is plain and unambiguous and the facts in the record confirm that Texans are being deprived of this statutory right. Docket no. 77, appx. 118, admission no. 8 (Defendants admit that now when applicants reach Step 5 of the online process, they are asked "Do you want to request a voter application?"); admission no. 11 (Defendants admit that if an eligible voter checks "yes" under the question "Do you want to request a voter application?," they are not registered to vote ... unless they submit an image of their signature, either by submitting a signed application by mail , or providing an electronic image of their physical signature in person at a DPS location) (emphasis added); appx. 121, admission no. 9 (Defendants admit that a "Yes" answer during an online transaction is never entered as a response in the Voter Field for purposes of forwarding the information to SOS); appx. 123, admission nos. 21, 23 (Defendants admit that when an eligible voter who updates his or her driver's license information on the current DPS website responds "yes" under the statement "Request a voter registration application," DPS does not transfer his or her data to SOS); appx. 96, admission no. 8 (Defendants admit that an eligible voter who changes the address on *892her non-commercial Texas driver's license online must submit a signed voter registration application in person or by mail in order for his voter registration information to be updated. The DPS and Texas.gov online interface links such voters to an application they may print out, sign, and mail , and also gives such voters the option to request that a voter registration application be mailed to them , postage paid, and contains language indicating that the separate form must be filled out in order to complete the voter's registration) (emphasis added); appx. 98, admission no. 12 (information voters submit to the DPS change of address online portal relating to voter registration is not transmitted to SOS); see also docket no. 77, appx. 33, DPS Voter Inquiry Web Portal (informing the public that online registration is not possible, and persons seeking voter registration must print, sign, and deliver the application to the voter registrar in their county); appx. 133, driver's license renewal and change of address receipt (showing that a separate voter registration application may be requested). Thus, it is clear that Defendants are violating
4. The duplicate information prohibition
To further the simultaneous application requirement, Congress saw fit to prohibit the states from requiring duplicate information. The prohibition against duplicate information is plain and unambiguous, leaving no room for argument as to its meaning. Section 20504(c)(2)(A) clearly states that "[t]he voter registration application portion of an application for a State motor vehicle driver's license may not require any information that duplicates information required in the driver's license portion of the form." This prohibition reinforces the simultaneous application requirement because an application that is truly simultaneous does not require duplication. On the other hand, any process that requires duplication of information is an indication that the voter registration "portion" of an application for a State motor vehicle driver's license is not truly simultaneous. The NVRA does permit states to seek a "minimum amount" of additional information that may be necessary for "State election officials to assess the eligibility of the applicant" for voter registration purposes. 52 § 20504 (c)(2)(B),(C). But the minimum information necessary to verify voter registration eligibility cannot duplicate the information already provided for driver's license purposes. For example, some states do not require citizenship to obtain a driver's license, so those states could include a citizenship question in the voter registration portion of the application without violating the duplicate information prohibition. But Texas DPS requires an applicant to answer a citizenship question for driver's license purposes; thus, another duplicate question about citizenship for voter registration purposes would violate this prohibition.
Defendants' violation of the duplicate information prohibition is indisputable, and has continued unabated. Defendants admit that none of the information in the online application for driver's license renewal or change of address is used for voter registration purposes. At the end of the DPS transaction, a "yes" answer does not mean that the information already provided will be used for voter registration purposes pursuant to the NVRA. Instead, the DPS transaction ends, none of the information already provided is forwarded to SOS, and the user is directed to SOS for an entirely separate voter registration application that requires the same information already provided to DPS in the driver's license transaction.
*893It is a separate and distinct transaction with a separate office (SOS) which requires a separate and distinct application with duplicate information. Docket no. 77, appx. 96, admission no. 8 (Defendants admit that upon completion of the DPS transaction, a voter must follow the link to SOS and then "request that a voter registration be mailed to them ... and [the portal] contains language indicating that the separate form must be filled out in order to complete the voter's registration"); appx. 132 (change of address transaction informs users that their DPS transaction does not register them to vote and they must follow link to SOS website where a separate voter application form can be downloaded or requested); appx. 134 (separate voter registration application provided by SOS that must be printed, signed, and mailed); docket no. 93, exh. A-3 (same); exh. A-4 (SOS information page explaining: a) voter registration application forms can be accessed online through SOS (not DPS, the voter registration agency); b) the application can be filled out on the computer, printed, and mailed to the voter registrar in the voter's county of residence; and c) informing voters that they will not be registered until all steps are completed); docket no. 94-12, deposition of S. Gipson, at 218:2-219:16 (explaining that at end of DPS transaction, the customer is directed to SOS if he wants to register to vote or update his voter registration information).
In Texas, DPS requires applicants seeking a renewal and/or change of address to provide several pieces of information, including their name, address, driver's license number, date of birth, and the last four digits of their Social Security number. Docket no. 94-8, deposition of S. Gipson, at 234:2-9; docket no. 94-9, deposition of E. Hutchins, at 25:11-22; docket no. 77, appx. 130. When customers finish their transaction with DPS and then go to SOS to fill out a completely separate application for voter registration purposes, they must provide the same information: name, address, driver's license number, date of birth, and the last four digits of their Social Security number. Docket no. 77, appx. 134 (voter registration application); docket no. 94-7, deposition of B. Schonhoff, at 157:19-158:18 (both the DPS change of address form and SOS voter registration form ask the person's name, date of birth, and address; applicants would have to fill this information out twice). Requiring motor voters to go to a different agency (SOS) to obtain and fill out a separate application that requires the same information violates the prohibition against duplicate information set forth in
5. The timely submission requirement
The NVRA also requires that "a completed voter registration portion of an application for a State motor vehicle driver's license accepted at a State motor vehicle authority shall be transmitted to the appropriate State elections official not later than 10 days after the date of acceptance."
*89477, appx. 67, deposition of S. Gipson at 102:10-19:103:16-25; docket no. 94-7, deposition of B. Schonhoff at 159:23-160:3; 220:18-23.
As a voter registration agency, DPS has a statutory duty to provide motor voters with simultaneous voter registration applications and transmit the applications to SOS within 10 days after acceptance. DPS admits it does not submit voter registration information to SOS for online transactions conducted by motor voters "[b]ecause [they] have not been advised by the Secretary of State that providing that through the online process is permissible at this point." Docket no. 77, appx. 67, deposition of S. Gipson at 103:16-25. The NVRA's timely submission requirement continues to be violated in every online renewal and change of address transaction.
6. State law must yield to federal law
The facts in the record lead to only one conclusion: DPS, a voter registration agency, does not provide a simultaneous voter registration application to motor voters who engage in online driver's license transactions. Instead, motor voters are simply directed to SOS, which requires them to fill out a completely separate voter registration application with duplicate information, and then print, mail, and/or hand deliver it to the voter registrar. But Defendants have refused to change their practice, claiming that Texas election law does not allow the procedure dictated by the NVRA. This argument is fatally flawed.
Defendants claim that the NVRA incorporates Texas election law, making it subject to state law, and rely on the following provisions:
(a) In general
(1) Each State motor vehicle driver's license application (including any renewal application) submitted to the appropriate State motor vehicle authority under State law shall serve as an application for voter registration ...
* * *
(d) Change of address
Any change of address form submitted in accordance with State law for purposes of a State motor vehicle driver's license shall serve as notification of change of address for voter registration ...
These provisions neither incorporate Texas election law nor make it subject thereto. Instead, the plain language of these provisions, when considered in context and with a view to their place in the overall statutory scheme, simply mean that driver's license applications submitted in accordance with state driver's license laws (i.e., the Texas Transportation Code), shall also serve as applications for voter registration purposes. The reference to state law in these provisions cannot be interpreted to mean the NVRA is dictated by the election laws of 50 different states, as it would be contrary to the plain language of the statute, require the Court to take it out of context, and render the NVRA entirely meaningless. The NVRA was enacted under the Elections clause, U.S. Const. Art. I § 4, cl. 1, which gives Congress the broad power to preempt, alter, and supplant state law when it comes to federal voter registration practices. Arizona v. Inter Tribal Council of Arizona, Inc. ,
Defendants have consistently argued that DPS, the voter registration agency tasked with carrying out the mandates of the NVRA, cannot provide motor voters with simultaneous driver's license - voter registration applications because Texas election law requires a physical signature. In other words, Defendants claim that a physical signature written by hand is necessary to comply with Texas election law; therefore, although online driver's license transactions are legally valid, a simultaneous voter registration application would be legally invalid. Again, this argument is flawed for several reasons.
First, Texas law cannot be used as an excuse for failing to comply with the NVRA. To the extent it is inconsistent with the NVRA, the Texas Election Code must yield to the NVRA. Moreover, Defendants have simply cherry-picked the provisions they believe justify their continued noncompliance. Defendants believe sections 13.002(b) and 15.021(a) of the Texas Election Code (requiring an application to be "signed") support their position,38 but they ignore section 20.062 (requiring DPS to use a form and procedure that combines driver's license/renewal/change of address with voter registration), which does not support their position.39 Defendants' reliance on Texas election law as an excuse for federal noncompliance is misplaced because it is preempted, altered, and supplanted by the mandates in the NVRA. But even if Texas election law was not preempted, there is nothing in the law that precludes the use of electronic signatures.
Second, the NVRA does state that a simultaneous driver's license-voter registration application and any renewal application "requires the signature of the applicant." See
(a) A record or signature may not be denied legal effect or enforceability solely because it is in electronic form.
(b) If a law requires a record to be in writing, an electronic record satisfies the law.
(c) If a law requires a signature, an electronic signature satisfies the law.
Interpreting the signature requirement in the NVRA to include electronic signatures is consistent with the purpose of the Act and the overall statutory scheme. Accord Kemp , 841 F.Supp.2d at 1335-36 (Georgia SOS argued that the "records" requirement in the NVRA was limited to physical records; the court determined that the requirement includes electronic records). Mr. Ingram, the 30(b)(6) representative for SOS, admits that an electronic signature complies with the signatures requirements under the NVRA. Docket no. 77, appx. 40, deposition of K. Ingram at 62:18-63:1 ("DPS's compliance with [the NVRA] for in-person transactions is [satisfied by] the question ... on the DPS forms, 'Do you want to register to vote? I've agreed to provide my electronic signature, and it can be sent to the Secretary of State's Office.' "). If an electronic signature is legally sufficient under the NVRA for paper transactions, it is legally sufficient for online transactions. The NVRA established procedures to remove barriers to voter registration, to make the process easier and more convenient, and to increase voter participation. Interpreting the "signature" requirement to allow only physical, manual, or wet ink signatures written by hand on paper would be inconsistent with the plain language of the NVRA and the entire statutory scheme. And while Defendants continue to rely on Texas election law as a excuse for noncompliance with the NVRA, there is nothing in Texas law that precludes the use of electronic records and electronic signatures. On the contrary, Texas law permits SOS and DPS to accept electronic records and electronic signatures. See Tex. Bus. & Com. Code § 322.017 (each state agency has the option to accept electronic records and electronic signatures);40 Tex. Bus. & Com. Code § 322.007 ("If a law requires a signature, an electronic signature satisfies the law.").41 And it is undisputed that Texas is already using voter registration signatures in electronic form. See Tex. Election Code § 20.066 (for in person and mail transactions, the information provided is input "into the department's electronic data system";
*897the applicant is informed "that the applicant's electronic signature" will be used; and the department "electronically transfer[s] the applicant's voter registration data, including the applicant's [electronic] signature, to the secretary of state");
Finally, Plaintiffs are not asserting that all signature requirements be tossed out or ignored. Instead, they are asserting that Defendants already retain electronic signatures for every licensed motor voter in Texas and currently use those electronic signatures for both driver's license and voter registration purposes; thus, there is no reason for refusing to use those same signatures for online renewal and change of address transactions. See docket no. 77, appx. 39, 42, deposition of K. Ingram at 50:1-11; 95:14-97:14; docket no. 77, appx. 69, 70, 79, deposition of S. Gipson at 203:19-204:7; 215:21-216:7; 234:21-235:1; 236:19-237:9. Even when a signature is required, that requirement may be satisfied with the electronic signature that is on file for every Texas motor voter.42 There is no legal impediment to using electronic signatures, and there is no technological barrier to online transactions that allow simultaneous renewal and change of address for driver's license and voter registration. See docket no. 94-7, deposition of B. Schonhoff, at 222:9-22; docket no. 77, appx. 45, deposition of K. Ingram at 184:12-185:1; 186:5-16; docket no. 94-9, deposition of E. Hutchins at 99:22-100:2; docket no. 94-10, deposition of J. Crawford at 142:6-18; 143:12-144:21 (DLS could send all the information it currently obtains to the Secretary of State's office, and "it could also send the previously provided electronic signature from that customer, just like it does with a mail-in change of address"); docket no. 94-13, deposition of Eitan Hersh at 34:20-23 ("my opinion is that there are no obvious substantial technical reasons why Texas does not do that or financial situations why Texas does not do that"); 110:6-111:13 (... "it [could] transmit, just as it does now for mail and in-person transactions, the previously-recorded digital signature of the voter because everyone who is renewing or changing their address online has a digital signature stored at the DPS"); 115:15-25 (38 other states have an online process for voter registration).
G. Merits of the Fourteenth Amendment claim
Plaintiffs also assert that Defendants' refusal to provide voter registration applications simultaneously with online driver's license renewal and change of address transactions constitutes a violation of their Equal Protection rights under the Fourteenth Amendment.43 The right to vote is a fundamental right protected under the Equal Protection Clause of the Fourteenth Amendment. Harper v. Va. State Bd. of Elections ,
1. Applicable standard
The parties disagree on the applicable standard of review. Plaintiffs assert that the Anderson - Burdick44 standard applies (docket no. 77, pp. 19-23; docket no. 85, pp. 16-17), while Defendants assert that an Arlington Heights45 strict scrutiny analysis or City of Cleburne46 heightened scrutiny analysis applies (docket no. 82, p. 24; docket no. 88, pp. 19-20). Because this case involves a challenge to a state voter registration procedure that is alleged to unfairly restrict the right to vote and harm voter participation, the more flexible Anderson - Burdick standard applies. Burdick v. Takushi ,
2. Analysis
"[V]oting is of the most fundamental significance under our constitutional structure,"
*899Burdick , 504 U.S. at 433,
Defendants' only justification for the voter registration burden imposed on motors voters is the "signature" requirement under Texas election law. However, neither federal nor state law limits the signature requirement to physical hand written signatures on paper.50 Electronic signatures and electronic records are legally recognized and widely used, and Defendants offer no reason for refusing to accept them for online motor voter transactions.51 DPS already uses electronic records and previously imaged electronic signatures for every Texan that uses the online system for driver's license renewal or change of address.52 SOS admits that electronic signatures comply with signature requirements under the NVRA and Texas Election Code.53 SOS admits it never uses physical, manual, or wet ink handwritten signatures on paper for voter registration purposes.54 DPS already has, in its possession *900and control, an electronic signature of every motor voter that has been issued a license. With motor voters' electronic signatures already in the voter registration agency's possession, there is no reason why Defendants could not register them to vote in a simultaneous online transaction.
Neither the law nor the facts support Defendants' alleged justification for limiting simultaneous voter applications to in-person and mail motor voter transactions and refusing simultaneous voter applications for motor voters that renew or change their driver's license online. Because the alleged justification is not legitimate, there is no state interest that outweighs the burden imposed on voters. Defendants fail to demonstrate a corresponding interest sufficiently weighty to justify the limitation on voters' rights.
Not only have Defendants failed to justify their actions, but they also acknowledge that permitting simultaneous voter applications for motor voters that renew or change their driver's license online would be technologically very feasible and the cost would be minimal.55 In fact, the undisputed testimony reflects that changing the online process to include simultaneous voter registration applications would very likely lead to greater efficiency for the State and increased voter registration for Texans.56 See Anderson , 460 U.S. at 806,
VI.
Conclusion
DPS encourages Texans to use its online services to renew their driver's license and change their address because it is easier and more convenient.57 It cannot, at the same time, deny simultaneous voter registration applications when those online services are used. DPS is legally obligated, as a designated voter registration agency under the NVRA, to permit a simultaneous voter registration application with every transaction. Asking motor voters whether *901they are interested in voter registration and sending them to SOS for an entirely separate application process is not enough. The NVRA demands much more from voter registration agencies. Defendants are violating §§ 20503(a)(1) ; 20504(a),(c),(d), and (e); 20506(4)(A)(iii), and (d); and 20507(a)(1)(A) of the NVRA and their excuse for noncompliance is not supported by the facts or the law. Plaintiffs are also being denied equal protection under the law. Plaintiffs are entitled to the relief they are seeking herein.
It is therefore ORDERED Plaintiffs' Motion for Summary Judgment (docket no. 77) is GRANTED and Defendants' Motion for Summary Judgment (docket no. 82) is DENIED. Final judgment will be entered separately, with costs, fees, and expenses to be taxed against Defendants.
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Cite This Page — Counsel Stack
320 F. Supp. 3d 862, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stringer-v-pablos-txwd-2018.