Fifth Circuit finds Texas ban on ballot harvesting constitutional

(CN) — A Fifth Circuit panel on Thursday overturned a federal judge’s ruling blocking a Texas law banning paid political canvassing in the presence of a mail ballot.

The law was passed as part of Senate Bill 1, an omnibus voting law passed by Texas Republicans in 2021 following unsupported claims that Joe Biden’s victory in the 2020 presidential election was the result of widespread fraud. It prohibits canvassers from receiving “compensation or other benefit” for providing “vote harvesting services,” which it defines as an “in-person interaction with one or more voters, in the physical presence of an official ballot or a ballot voted by mail, intended to deliver votes for a specific candidate or measure.” A violation of the ban is a felony punishable by up to 10 years in prison and a fine of up to $10,000.

As part of a broader case challenging the constitutionality of various portions of SB 1, a coalition of advocacy groups brought suit to block enforcement of the ballot harvesting ban. They claimed the law is unclearly worded, forcing them to scale back their political advocacy efforts for fear of accidentally violating it.

Finding that the ban violates the First Amendment and is unconstitutionally vague, U.S. District Judge Xavier Rodriguez of the Western District of Texas issued a ruling in September 2024 permanently enjoining the Texas secretary of state, the Texas attorney general and the district attorneys for several Texas counties from enforcing the ban, though a separate Fifth Circuit panel stayed the ruling to avoid changes to election laws close to the 2024 election. Rodriguez, a George W. Bush appointee, found that “compensation or other benefit” could apply to things like food, water or swag given to volunteers and that it isn’t clear how close by a ballot needs to be for a canvasser to be “in the physical presence” of it.

However, in the Fifth Circuit panel’s opinion, U.S. Circuit Judge Edith Jones criticized Rodriguez’s ruling for relying on “vague hypotheticals” to find the ballot harvesting ban facially unconstitutional.

“In contrast to this judicial myopia, ordinary citizens serving on a jury ‘should be capable of understanding’ this statute’s ‘common-sense core of meaning,’” the Ronald Reagan appointee wrote. She noted that Rodriguez had conceded that “applying the statute to ‘prevent paid partisans from haranguing Texas citizens while they fill out their mail ballots’ is not vague or unconstitutional.”

The panel found that Rodriguez was required to accept the interpretation of what the ban prohibits, provided in testimony by a former director of the Texas Secretary of State’s Office’s election division: “the voter and the harvester get[ting] together and … reviewing the ballot together … and the harvester mak[ing] sure they check the right box.”

The panel also found that the law does not violate the First Amendment, as it regulates “the mechanics of the electoral process” and that, even if that was not the case, the ban is justified by the need to protect the integrity of the voting process.

“The Supreme Court has long recognized that ‘a state has a compelling interest in protecting voters from confusion and undue influence’ and in ’ensuring that an individual’s right to vote is not undermined by fraud in the election process,’” Jones wrote. “These compelling interests in election security are heightened for mail-in voting because ‘[v]ote buying schemes are far more difficult to detect when citizens vote by mail’ and ‘[f]raud is a real risk that accompanies mail-in voting.’”

U.S. Circuit Judge Kurt Engelhardt and U.S. District Judge Robert Summerhays, both Donald Trump appointees, joined Jones on the panel.

“Texas will not allow our election system to be exploited with paid ballot harvesting schemes that threaten ballot secrecy and invite coercion and fraud,” state Attorney General Ken Paxton said in a statement. “This is a huge win for Texas voters and for secure, honest elections. We fought hard to keep common-sense protections in place, and I will continue to do everything in my power to defend the integrity of our elections.”

Jones Day, a law firm that represents Republican Party organizations that intervened in the case to defend SB 1, did not immediately respond to requests for comment on the ruling. The Brennan Center for Justice, which represents many of the plaintiff advocacy groups in the case, said it could not immediately comment on the ruling.