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Case 5:20-cv-00046-OLG Document 78 Filed 06/12/20 Page 1 of 22 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION JARROD STRINGER, et al., § Plaintiffs, § § v. § No. SA-20-CV-46-OG § RUTH R. HUGHS, et al., § Defendants. § DEFENDANTS’ RESPONSE IN OPPOSITION TO INTERVENORS’ MOTION FOR SUMMARY JUDGMENT AND COUNTER-MOTION FOR SUMMARY JUDGMENT DISMISSING INTERVENORS Intervenors1 lack standing and their sole claim is meritless. Their Motion for Summary Judgment, Dkt. 77—which presents no new facts or authority to alter this conclusion—should be denied, and the Court should enter summary judgment dismissing Intervenors from this case. FACTUAL BACKGROUND I. Texas Voter Registration Voter registration in Texas is governed by a carefully considered statutory framework. Importantly here, “[a] registration application must be in writing and signed by the applicant.” TEX. ELEC. CODE § 13.002(b); see also id. § 65.056(a) (allowing the affidavit on a provisional ballot to serve as a voter-registration application if it contains the necessary information). Likewise, any request to change voter-registration information must also be in writing and signed. Id. § 15.021(a). The signatures may then be used for, inter alia, investigations of fraud or identity theft, consideration of absentee ballots, or if there are any problems with electronically captured signatures. Stringer I, No. 5:16-cv-00257 (W.D. Tex.) (“Stringer I”), Dkt. 77-1 at 82; 80-1 at 61, 71-72.2 1 “Plaintiff-Intervenors” or “Intervenors” refers to the Democratic Senatorial Campaign Committee (“DSCC”), Democratic Congressional Campaign Committee (“DCCC”), and Texas Democratic Party (“TDP”). 2 See also, e.g., TEX. ELEC. CODE §§ 87.041(e), (f); 87.027(i) (providing for use of voter-registration signatures to verify authenticity of signatures provided with mail-in-ballots). 1 Case 5:20-cv-00046-OLG Document 78 Filed 06/12/20 Page 2 of 22 The only exception to the signature requirement is when a voter moves within a single county, in which case Texas law provides for the voter to change his voter-registration address online. TEX. ELEC. CODE § 15.021(d). If, however, a voter moves between counties, he must fill out a voter- registration form, sign it, and submit it to his new county of registration. Id. § 15.021(a); see also Stringer I, Dkt. 105 at 17-18. This is because Texas uses a county-based voter-registration system: the voter registrar in each county is the county tax assessor-collector, county elections administrator, or county clerk. TEX. ELEC. CODE § 12.001. Each registrar is tasked with accepting and rejecting voter- registration applications and maintaining files of voter-registration applications. Id. § 13.071, .101. Texans have multiple options for registering to vote and updating existing registrations, including by having a postage-paid voter-registration form mailed to them at no cost.3, Texans can also register to vote and update existing registrations while applying for, renewing, or changing the address on a driver license with the Department of Public Safety (“DPS”). Paper applications for new licenses, renewals, or changes of address contain boxes allowing the individual to check “Yes” or “No” regarding whether he wants to register to vote or change his registration address, and require the signature of the applicant. Stringer I, Dkt. 77-1 at 53-60; see also TEX. ELEC. CODE § 20.062. An original application for a Texas driver license must be made in person, TEX. TRANSP. CODE § 521.142, and the applicant must provide his signature on the paper application, 37 TEX. ADMIN. CODE § 15.21. The applicant must also provide a written signature on a device that electronically captures the image of that signature. Stringer I, Dkt. 80-1 at 74-75. Texas law authorizes this electronically captured signature to be sent to the Secretary of State (“SOS”), which provides it to the appropriate county for voter-registration purposes. TEX. ELEC. CODE § 20.066(a); Stringer I, Dkt. 77- 3 See “Request for Postage-Paid Voter Registration Form,” Texas Secretary of State, https://webservices.sos.state.tx.us/ vrrequest/index.asp (last visited June 12, 2020). 2 Case 5:20-cv-00046-OLG Document 78 Filed 06/12/20 Page 3 of 22 1 at 53-57. The previously captured signature is also sent to SOS when an individual later registers to vote when renewing his license or changes his address by mail. Id., Dkt. 105 at 13-14. Each weekday, DPS electronically transfers to SOS information about each applicant who is of voting age, a United States citizen, and affirmatively answers the voter-registration question through an in-person or mail-in driver license transaction. Id., Dkt. 105 at 4, 9. The signature that is transferred to SOS is the electronic signature captured during the individual’s last in-person transaction in a driver- license office. Id., Dkt. 94-8 at 12; 94-10 at 9. Though original license applications must be submitted in person, Texans who meet statutory eligibility criteria have the option to renew or change the address on their driver license online through the DPS website. Id., Dkt. 77-1 at 143.4 Individuals who conduct an online transaction also have an opportunity to register to vote or update an existing registration. The online interface asks the individual “Do you want to request a voter application?” Id., Dkt. 77-1 at 146. Next to the box marked “Yes,” it states, “This does not register you to vote.” Id. Instead, the website explains, “You will receive a link to a voter application on your receipt page.” Id. When the individual completes his online transaction, a notice in red appears at the top of the page stating, “You are not registered to vote until you have filled out the online application, printed it, and mailed it to your local County Voter Registrar.” Id., Dkt. 77-1 at 149. The notice also contains a link to download, complete, and mail a voter-registration application. Id. II. The Intervenors Defendants’ Motion to Dismiss, Dkt. 73, incorporated by reference as if fully set forth herein, sets out evidence regarding Intervenors. Defendants summarize but do not belabor that evidence here. 4 For brevity, online driver license renewals and changes of address are hereinafter referred to as “online transactions.” 3 Case 5:20-cv-00046-OLG Document 78 Filed 06/12/20 Page 4 of 22 TDP is a partisan political organization whose singular mission is to elect Democrats to public office. TDP Dep. 22:1-13 (attached hereto as Exhibit A). In the course of its efforts to elect Democrats, TDP works to register voters who TDP thinks—based on sophisticated, proprietary data analytics—will vote for Democrats. Id. 48:1-2 & 17, 57:2-11, 64:6-18. TDP undertakes these efforts not to register voters who have transacted with DPS online, but to “win an election” by targeting Democratic voters. Id. 69:2-6; see also id. 48:1-2 & 17, 57:2-11, 64:6-18, 69:2-6. TDP has no evidence that it has registered even a single voter after a DPS online transaction. Id. 101:18-22. TDP also cannot identify any specific activity it would pursue if it did not work to register Democratic voters, and it is impossible for TDP to determine the resources expended on these efforts. Id. 45:14-21, 101:1-4. No TDP donor has contributed funds specified for voter-registration efforts— nor could they. Id. 59:21-60:3. And even if TDP could be regarded as a “membership” organization (it cannot, see infra, I(C)), it cannot identify a single member who plans to renew or change the address on their driver license through an online transaction (or has done so in the past). Id. 108:21-109:6. DCCC is a national organization whose purpose is to elect Democrats to the U.S. House of Representatives. DCCC Dep. 6:19-24, 42:16-43:2 (attached hereto as Exhibit B). DCCC claims to have supported voter-registration activities but cannot identify any resources used for such activities in past election cycles. Id. 77:10-18, 78:23-79:20. For this election cycle, DCCC speculates that funds it provided to TDP and to a vendor for consulting and training services could have supported voter- registration efforts. Id. 81:5-14, 82:10-22. But DCCC’s sole targets for voter registration are “voters who are likely to support Democratic candidates or vote for Democrats.” Id. 89:4-16. DCCC has no evidence that, in the course of pursuing its mission to elect Democrats to Congress, it has registered even a single voter who completed a DPS online transaction. Id. 98:2-8, 101:17-21. DCCC does not know what percentage of its staff’s time is spent on voter-registration efforts, which are commingled with other organizational objectives targeted to elect Democratic congressional 4 Case 5:20-cv-00046-OLG Document 78 Filed 06/12/20 Page 5 of 22 candidates, such as voter persuasion. Id. 84:8-10, 85:22-86:23. Nor can DCCC identify the cost of registering any new voter. Id. 88:8-24. DCCC considers its members to be the Democratic members of Congress, id. 108:2-109:5, and it has produced no evidence that any of those members are eligible and intend to conduct online transactions with DPS. DSCC’s sole mission is to elect Democratic candidates to the U.S. Senate. DSCC Dep. 21:6- 14 (attached hereto as Exhibit C). DSCC accomplishes this mission by, among other things, transferring funds to state-level Democratic Party organizations, which may use that money however they wish.