5th Circuit upholds Texas ban on paid ballot harvesting, overturning lower court

A federal appeals court Thursday upheld a Texas law banning paid ballot harvesting, reversing a lower court that had blocked the measure as unconstitutional and allowing the state to enforce the restriction.

In a 26-page opinion, the 5th U.S. Circuit Court of Appeals ruled that a district court erred when it struck down part of Texas’ 2021 election law, Senate Bill 1. The provision makes it a crime to be paid to interact with voters in person while they are filling out mail ballots in order to influence how they vote.

Under the statute, a person commits a crime if they knowingly provide “vote harvesting services” in exchange for compensation or other benefit. The law defines those services as in-person interaction with one or more voters, in the physical presence of an official ballot, intended to deliver votes for a specific candidate or measure.

The law targets paid political operatives who go door to door, help voters request or complete mail ballots and then collect those ballots — sometimes while advising or pressuring voters as they mark them.

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Supporters of the measure say paid ballot collection creates opportunities for coercion or fraud, particularly with mail-in voting, where election officials are not present. Opponents argue organized ballot assistance is a legitimate get-out-the-vote strategy and that restrictions disproportionately affect elderly and minority voters who rely on help returning ballots.

Judge Edith H. Jones, writing for the panel, said the lower court improperly invalidated the law before it had even taken effect and relied on speculative hypotheticals.

The district court had ruled the statute was unconstitutionally vague and violated the First Amendment, issuing an injunction that barred the Texas attorney general, secretary of state and several district attorneys from enforcing it.

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The 5th Circuit disagreed.

On the vagueness claim, the panel said terms such as “compensation or other benefit” and “physical presence” have common meanings that juries can understand. The court also emphasized that the statute requires a person to act “knowingly,” which narrows its reach.

The judges said the law clearly applies, for example, to “prevent paid partisans from haranguing Texas citizens while they fill out their mail ballots.”

The panel also rejected the First Amendment challenge. Applying a balancing test commonly used in election law cases, the court said Texas has a compelling interest in preventing voter intimidation and fraud and in preserving confidence in elections.

The opinion leaned heavily on the Supreme Court’s 2021 decision in Brnovich v. Democratic National Committee, which upheld Arizona restrictions on ballot collection and recognized that mail-in voting presents unique fraud risks.

Even under the highest constitutional standard of review, the 5th Circuit said, Texas’ law is narrowly tailored because it applies only to paid, in-person conduct directly involving a ballot — not to unpaid volunteers or general political advocacy.

The ruling also addressed procedural issues, concluding that the Texas attorney general and secretary of state were not proper defendants under sovereign immunity principles. However, local district attorneys who indicated they would enforce the law absent an injunction can remain parties to the case.

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The decision marks a significant win for Texas officials defending the state’s post-2020 election reforms and reinforces a broader trend in federal courts giving states wide latitude to regulate election procedures.

Voting rights groups involved in the lawsuit could seek rehearing or ask the U.S. Supreme Court to review the case.