In a 2-1 decision, the 5th U.S. Circuit Court of Appeals has turned away a First Amendment challenge to Texas laws that restrict receipt and delivery of voter-registration applications during voter-registration drives.

“The Attorney General’s Office is pleased that the courts have once again reaffirmed the Texas Legislature’s ability to adopt common-sense election laws that are designed to instill confidence in our electoral process and prevent election fraud,” writes Lauren Bean, spokeswoman for the Texas Attorney General’s Office, in a prepared statement.

Chad Dunn, a partner in Houston’s Brazil & Dunn, represents the plaintiffs. “What is most unique about this decision, including others around the country . . . is the court has found for the first time that undertaking a voter registration drive is not free speech. We believe that that holding is inconsistent with several opinions, but in particular the Meyer v. Grant opinion out of the Supreme Court that dealt with petition circulators,” he says. “And, so, ultimately we think that this opinion is inconsistent with Supreme Court precedent, and we’re going to continue to make that argument as this case goes forward.”

The background to the 5th Circuit’s Oct. 3 decision in Voting for America, Inc. et al. v. John Steen, according to the majority opinion, is as follows. In 2011, the Texas Legislature amended sections of the Texas Election Code known as the VDR Law, which regulate the appointment and activities of voluntary deputy registrars (VDRs) — individuals trained and empowered to receive and deliver completed voter registration applications.

Among other things, the changes to the VDR law forbid non-Texas residents from serving as VDRs, prohibits VDRs appointed in one county from serving in another county, prohibits VDRs from photocopying or scanning voter registration applications submitted to the VDR but not yet delivered to the county registrar, and prohibits VDRs from sending completed voter registration applications via the U.S. mail.

Voting for America Inc., a nonpartisan, nonprofit organization that works with historically underrepresented voters, and other plaintiffs filed a declaratory judgment action in the Southern District of Texas, challenging the changes to law and arguing that they restrict the plaintiffs’ ability to conduct voter-registration drives in violation of the First Amendment.

The district court granted a preliminary injunction to the plaintiffs, enjoining enforcement of many of the new provisions of the VDR Law. The Texas Secretary of State’s Office, which is charged with enforcing the law, appealed the district court’s ruling to the 5th Circuit. The Secretary of State’s Office argued that the laws are aimed at preventing voter fraud and do not violate the First Amendment’s guarantee of free speech.

A majority of the court concluded that the plaintiffs failed to establish the unconstitutionality of the changes to the law. The majority also found that the facts in Voting for America differ from those in other Supreme Court rulings that have found that voter registration drives are involved in “core protected speech” contemplated by the First Amendment.

Distinguishing voter-registration drives from the circulation of petitions, Judge Edith Jones wrote for the majority, “Petitions by themselves are protected speech, and unlike a completed voter registration form, they are the circulator’s speech. Assuming a voter registration application is speech, it is the voter’s speech indicating his desire to be registered.”

“Soliciting, urging and persuading the citizen to vote are the forms of the canvasser’s speech, but only the voter decided to ‘speak’ by registering. Logically, what the VDR does with the voter’s form follows the voter’s completion of the application but is not itself ‘speech.’ One does not ‘speak’ in this context by handling another person’s ‘speech,’ ” Jones wrote, reversing and remanding the case to the trial court for further proceedings.

Judge Jerry Smith joined in the majority opinion.

Dissent

Judge Eugene Davis dissented, writing that the majority should consider the activities of the plaintiffs’ voter-registration drives in the aggregate, but instead the majority “slices and dices” the activities involved in voter-registration drives.

“In the majority’s view, all of the plaintiffs’ activities that occur after the voter completes the registration application are not speech. This would include processing the application and checking it for errors, submitting it to the appropriate registrar, following up to ensure that the application was processed and the applicant added to the voting rolls, and encouraging the voter to participate in subsequent elections,” Davis wrote, noting that the Supreme Court struck down Colorado’s ban on paying petition circulators in 1988′s Meyer v. Grant.

“I am satisfied that the district court correctly weighed the effect of each regulation on the plaintiffs’ First Amendment rights against the justifications raised by the state to conclude that the plaintiffs were entitled to a preliminary injunction barring enforcement of the above listed provisions,” wrote Davis, who believes the district court’s rulings should have been affirmed.

Jonathon Mitchell, the Texas solicitor general, represented the Secretary of State’s Office in the case. He did not return a call for comment.

Bean writes in the prepared statement, “Decisions like this one are reminders that these cases are nothing more than political stunts that are brought by plaintiffs — who simply oppose election integrity on political grounds — and their lawyers, who seek to reap attorneys’ fees at the taxpayers’ expense.”

Dunn responds, “My clients and I would love nothing more than getting back to the business of registering voters and making sure all eligible Texans can participate in voting. Unfortunately, the state is committed to passing laws that essentially pick and choose which of its citizens will have the right to vote.”

“From redistricting to photo ID, Texas laws for over four decades have been struck down by federal courts. We are confident that, at the end of the day, these unnecessary restrictions on voter registration will be put to the same fate,” he says.

Dunn says his clients are still considering whether to appeal the case further or continue battling the laws in the trial court.

“We’re not giving up on the case, by any means,” Dunn says.