Federal Appeals Court Upholds Texas Law Requiring Pen-on-Paper Voter Signature on Registrations

A 'Vote Here' sign is displayed near a polling station in Laredo, Texas, on March 1, 2022. Brandon Bell/Getty Images

A federal appeals court has upheld a Texas law that requires an original pen-on-paper signature on a voter registration application, delivering a win for advocates of election integrity measures.

“This is just one of the many election integrity laws we passed to make it harder for cheaters to cheat,” Texas Gov. Greg Abbott said in a statement on social media, praising the 2-1 ruling by the 5th Circuit Court of Appeals with respect to what’s been dubbed the “wet ink signature” law for voter registration.

The “wet ink signature” law requires Texans who submit their voter registration applications by fax or electronic means to additionally submit a physical copy of their application containing an original pen-on-paper signature.

“Texas’ interests in reliability and fraud deterrence are ‘legitimate,’” the majority opinion states, noting that the signature requirement ensures the kind of security and reliability that a third-party app or other electronic means cannot provide.

The ruling stems from a lawsuit challenging the wet signature rule that was brought by Vote.org, a voter advocacy group and voting technology platform that provides an e-sign tool. The group argued that the wet signature law unduly burdens the right to vote and violates the First and 14th Amendments, as well as the so-called “materiality provision” of the Civil Rights Act of 1964, which states that the right to vote cannot be denied for errors or omissions that are considered trivial or “not material.”

The appeals court rejected the plaintiffs’ arguments, stating in the opinion that “Texas’s justification that an original signature advances voter integrity is legitimate, is far more than tenuous, and, under the totality of the circumstances, makes such a signature a material requirement.”

In a dissenting opinion, Judge Stephen Higginson, an appointee of President Barack Obama, objected to the reasoning, arguing that Texas has no problem accepting signatures in electronic format when completed at Texas Department of Public Safety offices or other areas outside of voter registration procedures.

“Texas officials explicitly drafted § 13.143(d-2) to prevent the use of Voter.org’s e-sign tool. Consequently, the wet-signature requirement violates the Materiality Provision, and the district court correctly enjoined its enforcement,” Judge Higginson wrote in dissent.

Texas Public Policy Foundation senior attorney Autumn Patterson, who assisted the Texas Attorney General’s Office in defending the law against the lawsuit, praised the ruling as the “right result.”

“The Fifth Circuit correctly recognized that states have a substantial interest in election integrity and that an original signature requirement is a legitimate way to advance that interest,” Ms. Patterson said in a statement.

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While the appellate court’s ruling overturned a June 2022 decision by a lower court that blocked the signature requirement, it affirmed that private parties can bring lawsuits under the materiality provision of the Civil Rights Act.

In a recent case, a federal judge ruled that mail-in or absentee ballots that arrive in envelopes lacking accurate, handwritten dates must be counted in Pennsylvania, with the judge basing the ruling on a determination that not counting such ballots violates the materiality provision.

The appellate court’s ruling overturns a June 2022 decision by a lower court that blocked the wet signature law on grounds that it violated the materiality provision, as well as the First and 14th Amendments.

After the lower court ruled against the law, Republican officials intervened, including Texas Attorney General Ken Paxton.

Mr. Paxton and others argued that the web app developed by Voter.org to assist voters with submitting their registration form was “incompatible” with the Texas election code because it did not provide a way to comply with the wet signature requirement.

“Framed in the proper light, the wet signature rule is part of a broad expansion of the opportunity to register to vote,” Mr. Paxton and other intervenors wrote. “It is not a burden at all.”

But even the rule does impose minor burdens, “those burdens are vastly outweighed by the rule’s function as a bulwark against election fraud.”

But the district court rejected the intervenors’ arguments and denied their request to uphold the wet signature law, prompting an appeal to the 5th Circuit, which granted the appellants’ emergency motion to pause the district court’s injunction while the appeal played out.

Following oral arguments in March, the 5th Circuit overturned the district court’s decision, leaving the wet signature law on the books.

Meanwhile, a similar lawsuit brought by Vote.org against Florida’s wet signature rule remains pending before the 11th Circuit Court of Appeals.