October 10, 2022

A Willkie team and lead counsel Texas Civil Rights Project filed a petition to the Supreme Court for a Writ of Certiorari in a Texas voting rights case that could have a significant impact on how voting rights are enforced nationwide.  The case,Richardson v. Texas Secretary of State, was brought in 2019 on behalf of Dr. George Richardson and Rosalie Weisfeld, two Texas voters who had submitted their mail-in ballots but whose ballots were each rejected without recourse because a panel incorrectly decided the signatures on their ballot envelope and application were not made by the same person. Willkie and co-counsel from the Texas Civil Rights Project obtained a major victory for their clients in 2020 when a Texas federal court ruled that the state’s use of signature-matching procedures for mail-in ballots was unconstitutional and that state officials must notify voters if their ballot has been marked for rejection due to a perceived signature match discrepancy, giving voters an opportunity to confirm that they cast the ballot in question and save their ballot from rejection. In his decision, US District Court Judge Orlando Garcia ruled that the state's signature-matching procedures violates the constitutional rights of Texas voters and creates an undue burden on the right to vote because they do not provide a method for a voter to fix, or “cure,” a perceived signature issue.

The case was subsequently appealed to the 5th Circuit, which reversed the decision, finding that the state’s chief election  officer could not be brought to trial as he was protected by sovereign immunity, the latest example of the court taking steps to narrow the Ex parte Young doctrine.

Willkie and the Texas Civil Rights Project’s petition, filed in August, argues that the 5th Circuit’s rule, which is at odds with a majority of other circuit courts, would immunize states from federal court review anytime local election officials play a role alongside state officials in enforcing state election laws. If plaintiffs can’t sue a statewide office and get relief, the alternative would be to sue 254 counties in Texas and various election  committees individually, which would make correcting unconstitutional state election laws and practices, and protecting voting rights statewide, virtually impossible.

The petition is under SCOTUS conference; the Court has directed the Texas Secretary of State to respond to the petition.  A decision on whether to grant the petition is expected sometime this fall.

Willkie worked with pro bono partner the Texas Civil Rights Project in representing the plaintiffs. The Willkie team included partner Richard Mancino and associates JoAnna Suriani, Ferdinand Suba, Frederick Swanstrum and Aaron Nathan.