Voting

As of last month, 37 states offered residents the ability to register to vote online. Texas is not one of them.

AUSTIN — A federal appeals court has overturned a previous ruling that could have opened the door to online voter registration in Texas.

In a Wednesday court order, the 5th U.S. Circuit Court of Appeals reversed a federal district judge’s ruling that Texas was violating federal law by failing to register residents to vote when they updated their driver’s licenses online. The panel of three federal judges that considered the case did not clear the state of wrongdoing but instead determined that the three Texas voters who had brought the lawsuit did not have standing to sue.

The case revolved around a portion of federal law, often called the motor voter law, that was designed to ease the voter registration process by requiring states to give residents the opportunity to register to vote at the same time they apply for or renew their driver’s licenses.

The legal dispute came after three Texas voters who moved from one county to another were unable to re-register to vote when they updated their driver’s licenses through the state’s online portal. Although the state follows the law for individuals who renew their driver’s licenses in person, Texas does not allow for online voter registration.

In a 2018 ruling, U.S. District Judge Orlando Garcia of San Antonio found that Texas was in violation of the federal National Voter Registration Act and the Constitution’s Equal Protection Clause because it treated voters who dealt with their driver’s licenses online differently than those who obtained or renewed their licenses in person at Texas Department of Public Safety offices.

Garcia had ordered the state to put forth a fix ahead of the November 2018 election, raising the prospect that Texas would be forced to introduce its first mechanism for online voter registration. But the 5th Circuit previously blocked that mandate while it considered an appeal from the state.

Texans using the state’s online portal are given the option to check “yes” to a prompt that says “I want to register to vote” but are then directed to a registration form that they have to print out and send to their county voter registrar. Although the state’s website specifies that checking yes “does not register you to vote,” the Texas Civil Rights Project, which represents the voters in the case, claimed that language had caused “widespread confusion” among Texans who incorrectly thought they had completed registering.

Two of the voters who sued the state believed they had registered and didn’t discover they were not on the voter rolls until they tried to vote in 2014. They were allowed to cast provisional ballots, but their votes were not counted. The third voter also believed he was registered to vote and only discovered he wasn’t when he sought help from county officials to determine his polling location for a 2015 election.

But the 5th Circuit sided with the state’s argument that the voters could not take the issue on in court because they had since successfully registered to vote and were no longer harmed by the state’s practice.

The federal appeals court found that Garcia erred when he reasoned that court-ordered compliance with federal law was needed to “prevent repetition of the same injury” to the three voters and others because the state’s challengers had not sufficiently proved the online system would continue to be a problem for them in the future.

Throughout the case, Texas has appeared reluctant to revise its DPS system. When Garcia asked the state to submit a detailed plan last year to fix the violation, the Texas Attorney General’s Office offered no specific solution of its own and instead disputed the judge’s ruling and a proposal submitted by the Texas Civil Rights Project. Before that, Garcia sanctioned Texas for dragging its feet on the case, citing a months-long delay in turning over thousands of pages of documents related to the lawsuit.

Texas’ Republican leadership has long shot down efforts to enact online voter registration in the state. As of last month, 37 states offered residents the ability to register online.

The Texas Tribune is a nonpartisan, nonprofit media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues. Visit www.texastribune.org.

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