Texas Residency Restriction Law Challenge

 On Oct. 6, 2022, a three-judge panel of the 5th U.S. Circuit Court of Appeals heard oral arguments concerning an appeal by the intervenor defendants — including Attorney General Ken Paxton (R), the Medina County elections administrator and the Real County tax assessor — of a district court decision striking down multiple residency restriction provisions in S.B. 1111 for violating the First and 14th Amendments. Specifically, the district court blocked certain challenged provisions that prohibited voters from registering to vote using a prior address after they moved and prevented voters from registering to vote where they did not live full time. The court also held that the state cannot impose strict ID requirements for registration on voters who use a P.O. box to register to vote but do not claim to live at the address. The 5th Circuit temporarily paused the district court’s decision while the appeal is ongoing, meaning that the challenged provisions of S.B. 1111 are currently in effect. 

The court first heard from an attorney for Paxton, one of the appellants, who argued that the plaintiffs organizations — Texas State LULAC and Voto Latino — lacked standing (meaning the constitutional capacity to bring a lawsuit in court) to sue in the first place. The attorney began: “I have not identified a single voter who has been harmed by the provisions of S.B. 1111…plaintiffs themselves can’t vote and they can’t complain of a violation of their non-existent right to vote.” Following some questions regarding the appellants’ allegation that the plaintiffs lack standing to sue, Judge Cory Wilson turned to asking the attorney about S.B. 1111’s residence provision — a provision that the district court struck down for being “vague and overbroad” — that prohibits individuals from moving or “establishing residence” for the purpose of  “influencing an election.” Wilson asked: “What if someone moves from [Washington] D.C. to Texas to work on a campaign — is that [considered] moving to influence an election?” To this question, the attorney replied: “Well, I don’t think that any part of S.B. 1111 prohibits any sort of moving…to work on a campaign.”

Next, the attorney representing the other appellants — the Medina County elections administrator and the Real County tax assessor — took the stand. She largely echoed the arguments made by Paxton’s attorney and claimed that the “challenged provisions do not restrict plaintiffs’ activity,” or rights to free speech. She alleged that because the plaintiffs are organizations and not individual voters, their rights are not impeded by S.B. 1111 and that they do not have a “right to vote” in the first place.

Following the arguments by the appellants’ attorneys, the attorney for the appellees, Texas State LULAC and Voto Latino, began by stating: “Plaintiffs agree that [Texans] should vote where they live and that has been the law for quite some time. Nobody in this lawsuit disputes that common sense requirement…this lawsuit challenges provisions of S.B. 1111 that are overbroad and do just the opposite.” He further went on to counter the appellants’ claim that Texas State LULAC and Voto Latino lack standing to sue by explaining how the plaintiff organizations were legitimately harmed by S.B. 1111’s restrictions. In particular, he stated that the organizations had to “divert funding and resources” and shut down some voter outreach, get-out-the-vote activities and voter education programs due to the law’s restrictions. He further substantiated his position that the appellee organizations have constitutional standing to sue and argued that “Texas law has made it such that the requirements for registration and the requirements for establishing residency are not just imposed on the voters, they’re also imposed on those who helped the voters.” 

The court continued to hear from the attorney for the Texas State LULAC and Voto Latino who pivoted to discussing how under S.B. 1111, the organizations had to re-train their volunteers to comply with the law’s strict requirements. Judge Stuart Duncan proceeded to ask how the groups’ response to S.B. 1111 is different from their response to other new election laws or changes to existing election laws. The attorney for the appellees — Texas State LULAC and Voto Latino — responded that in contrast to other laws, S.B. 1111 requires “retooling and retraining volunteers…to avoid criminal penalties…since [volunteers] are literally trying to avoid saying something that could trigger criminal liability.” 

Finally, the court heard closing arguments from the attorney for the appellant, Paxton, who reiterated his arguments that the plaintiffs lack standing to sue and are not harmed by S.B. 1111’s strict residency requirements.