Round two of fight over online voter registration for Texas drivers reaches federal court

The first time former English professor Jarrod Stringer was told he couldn't vote in a Texas election, he sued. A federal appeals court tossed his case on a technicality, but one of the judges ended up admonishing state officials to not let it happen again.

Yet it did, and now Stringer and other frustrated Texans are taking the state back to federal court.

In a federal lawsuit filed Tuesday in San Antonio, they are arguing anew that the state continues to disenfranchise an unknown number of voters by violating the motor voter law, a federal requirement that people be allowed to complete voter registration when they get a driver's license. Stringer is the lead plaintiff in the second legal chapter of a fight over Texas' resistance to online voter registration.

The state allows driver's licenses applicants to complete their voter registration when they physically appear at a Texas Department of Public Safety office, but does not allow the same result when residents update or renew licenses online. At least 1.5 million Texans use the state’s online driver's license portal a year, according to Stringer’s lawyers, though it’s unclear how many also attempt to re-register.

Stringer first encountered the prohibition after moving back to his hometown of San Antonio in 2014. He updated his driver's license and mistakenly thought he had re-registered to vote at the same time. But after standing in line at an early voting polling place set up on the University of Texas at San Antonio campus, he discovered he was not on the voter roll.

"Having the option to vote was something that I have taken seriously," Stringer said in an interview. "Voting is just a fundamental act of expression of citizenship."

In the first iteration of the legal battle, U.S. District Judge Orlando Garcia in 2018 found the state was violating both the federal National Voter Registration Act and the U.S. Constitution's Equal Protection Clause by not allowing online registration through the driver's license process. Garcia took issue with the difference in the state’s treatment of voters who used its online system and those who dealt with their licenses in person.

He ordered the state to implement a fix ahead of that year’s general election, which would have forced Texas to introduce its first form of online voter registration. But Texas leaders long opposed to expanding registration in that way were defiant and appealed Garcia’s order. The 5th Circuit intervened, blocking Garcia's mandate. The appellate court ultimately overturned Garcia’s ruling based on what Mimi Marziani, president of the Texas Civil Rights Project, calls a catch-22 scenario that made for “fundamental unfairness” in the system.

By the time the first lawsuit made it into federal court, Stringer and the other voters had successfully re-registered. Because they had recovered their right to vote, the court decided, the plaintiffs did not have legal standing to sue over losing it to begin with. A panel of three judges concluded the voters had not met the burden of showing they were still harmed by the state’s system, or ran a substantial risk of being harmed in the future. The judges made a point of noting that none of the plaintiffs had indicated they had any intention of moving in the future.

His lost vote was a right Stringer, like the two other voters who sued the state, "will never be able to recover,” Judge James Ho wrote in the November 2019 decision.

“As citizens, we can hope it is a deprivation they will not experience again," Ho said.

But just 10 days later, Stringer again was unable to update his voter registration along with his driver's license after a move to Houston.

Stringer and his lawyers object to what they characterize as a misleading process on the state's website, which allows users to check “yes” in response to a prompt that says “I want to register to vote.” That directs them to a registration form they must print out and send to their county registrar. Though the website specifies that checking yes “does not register you to vote,” that language has caused confusion among Texans like Stringer and his co-plaintiffs who incorrectly thought their voting registration had been updated.

In their new lawsuit, Stringer, two other voters, along with two nonprofits that work to register Texans to vote, have revived the arguments from the first lawsuit, pressing virtually the same legal claims that prompted Garcia's initial favorable ruling.

This time, to avoid the legal pitfall over standing to sue, Stringer and the other voters in the case are filing their legal challenge while remaining off the voter rolls in the counties where they now live, and Stringer has noted that he has plans to move in 2020 — a point at which he will again run into the limitations of the online DPS system.

But while they’re working to address the issues found by the 5th Circuit last year, the Texas Civil Rights Project doesn’t plan to ask the plaintiffs to sit out the upcoming election. With the three individual voters in the case expected to reregister before the Feb. 3 deadline for the March primaries, the lawsuit could ultimately serve as a test case of what sacrifices a voter must make at the ballot box to challenge a system that they see as impeding their access to it.

“I do not read the 5th Circuit’s opinion to suggest that someone has to remain unregistered through the course of the lawsuit. It can’t be read to suggest that,” Marziani said. “If the court were to make a rule like that, they would be in effect telling someone that in order to vindicate their most important constitutional right, they would have to sacrifice that right for years and years.”

Staying off the rolls is not even something Stringer said he considered. "That would actually preclude the entire intention for me, which is to participate in the process," he said.

A spokesperson for the attorney general did not immediately respond to a request for comment about the new lawsuit. Throughout the case, the state has simultaneously argued it's in compliance with federal law and that there are technological and security challenges tied to implementing even a narrow version of online registration — a point Ho signaled he took issue with in the 5th Circuit's November ruling.

"On the plain text of the statute, the rule seems simple enough: If [the system is] good enough for motorist licensing, then it ought to be good enough for voter registration," Ho said. "If the system is secure enough to ensure the integrity of the former, then it ought to be secure enough to ensure the integrity of the latter."

Still, Attorney General Ken Paxton in a November statement praised the 5th Circuit’s findings on standing, arguing that “federal judges have no right to alter state voter registration processes on the whim of plaintiffs who are already registered to vote.” Paxton also characterized the ruling as a win for “election integrity” by continuing to require original, physical signatures on voter registration applications.

A related lawsuit was recently filed to challenge that requirement. In that challenge, the state’s legal opponents noted that the state already allows for electronic signatures — those submitted on voter registration applications received through DPS.

Disclosure: The University of Texas at San Antonio has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.