Get Loud Arkansas; Vote.org; Nikki Pastor; Trinity Blake Loper v. Cole Jester

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 24-2810
___________________________
Get Loud Arkansas; Vote.org; Nikki Pastor; Trinity Blake Loper,
lllllllllllllllllllllPlaintiffs - Appellees,
v.
Cole Jester, in his official capacity as Secretary of State; Sharon Brooks, in her
official capacity as Commissioner of the Arkansas State Board of Election
Commissioners; Jamie Clemmer, in official capacity as Commissioner of the
Arkansas State Board of Election Commissioners; Bilenda Harris-Ritter, in her
official capacity as Commissioner of the Arkansas State Board of Election
Commissioners; William Luther, in his official capacity as Commissioner of the
Arkansas State Board of Election Commissioners; James H. Smith, III, in his
official capacity as Commissioner of the Arkansas State Board of Election
Commissioners; Jonathan Williams, in his official capacity as Commissioner of
the Arkansas State Board of Election Commissioners,
lllllllllllllllllllllDefendants - Appellants,
Betsy Harrell, in her official capacity as Benton County Clerk; Becky Lewallen, in
her official capacity as Washington County Clerk; Terri Hollingsworth, in her
official capacity as Pulaski County Clerk,
lllllllllllllllllllllDefendants.
------------------------------
Center for Election Confidence, Inc.; Honest Elections Project; Restoring Integrity
and Trust in Elections, Inc.,
lllllllllllllllllllllAmici on Behalf of Appellant(s),

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United States,
lllllllllllllllllllllAmicus on Behalf of Appellee(s).
____________
Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
____________
Submitted: September 18, 2025
Filed: March 31, 2026
____________
Before COLLOTON, Chief Judge, ERICKSON and STRAS, Circuit Judges.
____________
COLLOTON, Chief Judge.
Get Loud Arkansas and others sued to enjoin a rule promulgated by the
Arkansas State Board of Election Commissioners. Get Loud asserts that the rule,
which provides that voter registration applications must include a handwritten or
“wet” signature, violates a provision of the Civil Rights Act of 1964, 52 U.S.C.
§ 10101(a)(2)(B). This provision states that no person acting under color of law shall
deny the right of any individual to vote in any election because of an error or
omission on a voter registration application that is not material in determining
whether the individual is qualified under state law to vote in the election. The district
court1 determined that the Arkansas rule likely violated federal law, and entered a
preliminary injunction after examining the other relevant factors. The Board appeals,
and we affirm.
1The Honorable Timothy L. Brooks, now Chief Judge, United States District
Court for the Western District of Arkansas.
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I.
To vote in Arkansas, one must be at least 18 years old, a citizen of the United
States, a resident of Arkansas, neither adjudicated mentally incompetent nor
convicted of a felony, and registered to vote. Ark. Const. art. 3, § 1(a)(1)-(4); id.
amend. 51 § 11(a)(4), (5). Amendment 51 to the state constitution addresses voter
registration. To register, an applicant must complete a registration form with a
“signature or mark” affirming under penalty of perjury that the applicant satisfies
these requirements. Id. amend. 51 § 6(a)(3)(F). A person may submit a voting
application himself, submit the application through a third-party registration
organization, or register at a designated state registration agency. Id. amend. 51
§§ 5(a); 6(a)(2)(G).
In early 2023, Get Loud Arkansas developed an online voter registration tool.
The tool enabled an applicant to complete his voter registration application on a
mobile device or computer, and to sign the application digitally using a stylus, finger,
or computer mouse. The applicant could then authorize Get Loud to print and submit
the form on behalf of the applicant.
Before launching the online registration tool, Get Loud’s executive director
contacted the Arkansas Secretary of State to confirm that the tool complied with
Arkansas law. Get Loud asked the Secretary whether a wet signature is required on
a voter registration application. In an e-mail to Get Loud’s deputy director, an
assistant director of elections in the Secretary’s office wrote that the office’s attorneys
concluded that Arkansas law does not require a wet signature.
Get Loud introduced the online registration tool in January 2024. After
launching the tool, Get Loud observed a significant increase in completed
registrations at in-person registration events. Because Get Loud no longer needed to
provide voters with paper applications at events, the organization’s voter registration
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efforts were more successful and cost-effective. The tool also enabled Get Loud to
register voters in all seventy-five counties in Arkansas. On February 26, an article
in the Arkansas Times reported that Get Loud had registered 358 voters using the
tool and that 78 percent of the voters registered were under twenty years old.
On February 28, two days after the article reported the success of Get Loud’s
online tool, Arkansas Secretary of State Thurston instructed county clerks to stop
accepting voter registration applications executed by electronic signature. On March
12, Secretary Thurston requested a formal opinion from Arkansas Attorney General
Griffin on the legality of digital signatures. Attorney General Griffin issued a formal
opinion that “an electronic signature or mark is generally valid under Arkansas law.”
General Griffin wrote that “given the historical acceptance of signatures produced
through a variety of means, the widespread acceptance of electronic signatures, and
the fact that Amendment 51 does not contain any restriction on how a ‘signature or
mark’ may be made, I believe that an electronic signature satisfies Amendment 51’s
‘signature or mark’ requirement.”
After receiving the attorney general’s opinion, the Board adopted an emergency
rule that narrowed the definition of “signature or mark” to include only wet
signatures. The new rule excludes any signature or mark that “utilizes a computer to
generate or recreate the applicant’s signature or mark.” The emergency rule required
a registrant to make “a handwritten wet signature or handwritten wet mark . . . on a
Registration Application Form with a pen or other writing device that is physically
moved across the form and that forms the applicant’s signature or mark on the paper
form.” The emergency rule took effect on May 4 and expired on September 1. After
opening the rule to public comment, the Board replaced the emergency rule with an
identical permanent rule that was approved by the Arkansas Legislative Council and
effective on September 2.
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The rule had an immediate effect on Get Loud’s operations. To ensure that its
voter registration activities complied with the rule, Get Loud spent additional time,
labor, and money to redesign its digital registration tool, and hired additional staff to
register voters with paper applications. Get Loud’s deputy executive director averred
that the pace at which the organization was able to register new voters “declined
precipitously” after the rule went into effect. The rule effectively forbade Get Loud
to use its most successful voter registration tool during the ten weeks leading up to
the 2024 federal elections.
On June 5, 2024, one month after the rule went into effect, Get Loud and others
sued and alleged that the rule violated § 101 of the Civil Rights Act of 1964. This
provision, commonly known as the “Materiality Provision” states that:
No person acting under color of law shall . . . deny the right of any
individual to vote in any election because of an error or omission on any
record or paper relating to any application, registration, or other act
requisite to voting, if such error or omission is not material in
determining whether such individual is qualified under State law to vote
in such election.
52 U.S.C. § 10101(a)(2)(B).
The district court granted Get Loud’s motion for a preliminary injunction. The
court enjoined the election commissioners and county clerks from enforcing the rule
and from rejecting voter registration applications on the ground that they were
completed with a digital or electronic signature.
The Board appeals on several grounds. We consider the question of Article III
standing de novo. In reviewing the issuance of a preliminary injunction, we consider
the threat of irreparable harm to the movant, the likelihood that the movant will
succeed on the merits, the balance between the harm to the movant and the injury that
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an injunction would inflict on other parties, and the public interest. Dataphase Sys.,
Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc). The ultimate
decision to grant an injunction is reviewed for abuse of discretion, with factual
findings examined for clear error and legal conclusions considered de novo. Osthus
v. Whitesell Corp., 639 F.3d 841, 844 (8th Cir. 2011).
II.
A.
To establish Article III standing, a plaintiff must show an injury in fact that is
fairly traceable to the defendant’s challenged action and is likely redressable by a
favorable judicial decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992).
An organizational plaintiff satisfies the injury-in-fact requirement if a defendant’s
actions directly affected and interfered with the organization’s core business
activities. FDA v. Alliance for Hippocratic Medicine, 602 U.S. 367, 395 (2024); see
Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982).
Get Loud has established that it suffered an injury in fact. The challenged rule
directly interfered with Get Loud’s voter registration activities by prohibiting the use
of its online registration tool and forcing Get Loud to collect hand-written signatures
to register voters. To comply with the rule, Get Loud spent additional time, labor,
and resources to redesign its online tool and hired additional staff. Get Loud has
established that these actions were necessary to comply with the rule and that the
organization was substantially less effective in registering eligible voters after the
rule was implemented. The rule impaired Get Loud’s ability to provide voter
registration services, and the organization satisfies the injury-in-fact requirement.
The Board argues that Get Loud cannot manufacture an injury merely by
diverting resources in response to a defendant’s action. It is true that an organization
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cannot “spend its way into standing,” Alliance, 602 U.S. at 394, but that is not what
happened here. The rule effectively forbade Get Loud to use its online registration
tool. When regulations “require or forbid some action by the plaintiff,” standing is
“usually easy to establish.” Alliance, 602 U.S. at 382. Because Get Loud was
forbidden to use its online registration tool, which was an important element of its
core business activities, the organization has suffered an injury in fact.
Get Loud has also established causation and redressability. Get Loud’s injury
was caused by the rule’s prohibition on digital signatures, and the injury can be
remedied by an injunction against enforcement of the rule. Thus, Get Loud satisfies
the requirements for Article III standing. Because the organizational plaintiff has
standing to seek all of the relief at issue, it is unnecessary to address the standing of
other plaintiffs.
B.
The district court determined that the Materiality Provision creates a private
right of action enforceable through 42 U.S.C. § 1983. See Health & Hosp. Corp. of
Marion Cnty. v. Talevski, 599 U.S. 166, 183-91 (2023). At oral argument, the Board
waived any challenge to that ruling:
Frankly, on the private right of action, I recognize there is some pretty
compelling authority recognizing the private right of action under the
Materiality Provision, including in the Callanen case, which I would
respectfully submit the Fifth Circuit’s decision in that case should guide
this Court’s analysis.
In Vote.org v. Callanen, 89 F.4th 459 (5th Cir. 2023), the Fifth Circuit agreed with
decisions of the Third and Eleventh Circuits that the Materiality Provision creates an
individual right that is enforceable under § 1983. Id. at 476-78; see Migliori v.
Cohen, 36 F.4th 153, 159 (3d Cir.), judgment vacated as moot sub nom. Ritter v.
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Migliori, 143 S. Ct. 297 (2022) (mem.); Schwier v. Cox, 340 F.3d 1284, 1297 (11th
Cir. 2003). When asked to elaborate on the Board’s position, counsel confirmed that
he was waiving any challenge to the district court’s decision on this issue: “In
keeping with the Callanen opinion, which recognized the private right of action, I
would be willing to concede that issue here today.” We therefore accept as
unchallenged in this case the district court’s conclusion that the Materiality Provision
creates an individual right that is enforceable under § 1983.
C.
The Materiality Provision prohibits denial of an individual’s right to vote based
on “an error or omission” in a registration document if such error or omission is “not
material in determining whether such individual is qualified under State law to vote.”
52 U.S.C. § 10101(a)(2)(B). An error is “material” when it is “important” or has
“influence or effect” over a decision maker. Material, Black’s Law Dictionary 1128
(4th ed. 1951). The legal meaning of materiality typically sets a “demanding”
standard; a matter is “material” only if a reasonable person “would attach importance
to [it] in determining his choice of action.” Universal Health Servs., Inc. v. United
States, 579 U.S. 176, 193-94 (2016) (quoting Restatement (Second) of Torts § 538,
at 80). Under the Materiality Provision, a state actor cannot deny the right to vote
based on an error or omission in a registration form unless the error is “material in
determining” whether an applicant is qualified to vote. 52 U.S.C. § 10101(a)(2)(B).
When a person applies to register to vote in Arkansas, the registrant must attest
under penalty of perjury that she meets every qualification to vote. Ark. Const.
amend. 51 § 6(a)(2)(B). The rule provides that the registrant’s attestation must be
made with a handwritten signature or mark on an application.
There is no evidence, however, that Arkansas election officials use the type of
signature on a registration form in determining whether an applicant is qualified to
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vote. The district court found that “the record evidence shows that the ‘wetness’ of
a signature does not affect county officials’ determinations of qualifications at all.”
Ample evidence supports the finding. Before the Board adopted the new rule,
Arkansas election officials received applications with both wet and digital signatures,
and officials did not consider “the type of instrument used in signing or marking a
voter registration application as a factor in determining whether the applicant is or is
not qualified to vote in Arkansas.” County clerks are instructed to accept voter
registration applications with “any type of signature or mark,” even if the signature
is illegible. County clerks are not trained to analyze or compare signatures. Training
sessions “made clear to officials reviewing voter registrations for signature matches
that they are not signature analysts, and they are taught to err on the side of the voter.”
As the district court explained, the Board did not “present argument or evidence as
to how a wet signature—as compared to a digital signature—aids in determining
whether a person” is qualified to vote under Arkansas law.
The Board argues that the wet signature requirement is material in determining
a voter’s qualifications because the signature confirms an applicant’s existence and
identity. This argument is both forfeited and without merit. The evidence shows that
signatures are not used by Arkansas election officials to confirm an applicant’s
identity or existence at the registration stage. The Board has not shown that a
handwritten signature or “X” confirms an applicant’s identity or existence. There is
no guarantee that a person who submits a paper registration form marked with an “X”
will do so on behalf of a person who exists or that the identity of the person signing
or marking the form will match the name on the application. Even if this argument
had been raised in the district court, the record does not support a finding that the type
of signature is material in determining a voter’s existence and identity.
The Board also maintains that compliance with the signature rule is material
because it is useful in preventing voter registration fraud. The Board, citing decisions
concerning the constitutional right to vote, suggests that the court should give
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considerable deference to a state’s chosen election procedures and balance the state’s
asserted interest with the burden imposed on voters. See Crawford v. Marion Cnty
Election Bd., 553 U.S. 181, 197 (2008); Purcell v. Gonzalez, 549 U.S. 1, 4 (2006).
The Board’s reliance on constitutional right-to-vote cases is misplaced, however,
because the Materiality Provision calls for a different analytical framework. The
statute’s text contains no interest-burden balance. To pass muster, a rule must
actually be “material in determining” whether applicants are qualified to vote. 52
U.S.C. § 10101(a)(2)(B). In this respect, we find ourselves in agreement with the
dissenting opinion in Callanen, 89 F.4th at 491-92 (Higginson, J., dissenting), and
part company with the Callanen majority’s reliance in this context on cases
interpreting § 2 of the Voting Rights Act or the constitutional right to vote.
The Board cites no evidence to support its claim that a requirement of wet
signatures on registration applications is material to preventing voter fraud in
Arkansas. The record shows that county clerks do not analyze original wet signatures
from registration forms in an effort to detect fraud. Even if county clerks did attempt
to analyze signatures, the law allows a voter to register without signature by making
a simple mark such as an “X” on the form. State law and practice thus do not employ
a wet signature requirement as a means to detect fraud, and the absence of a
handwritten signature is not material on this record in determining whether a person
is qualified to vote.
The Board belatedly suggests in its reply brief that a wet signature carries a
“solemn weight” that is material in preventing voter fraud. There is no evidence,
however, that a wet signature is more “solemn” than a digital signature, and no
showing that the asserted solemnity of a wet signature deters voter fraud. When a
person signs a registration form, he attests to the accuracy of the application under
penalty of perjury. The sworn statement on Get Loud’s digital registration tool is
identical to the sworn statement on the Secretary’s paper form, so the solemn
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consequences of submitting a fraudulent registration form are evident to an applicant
affixing either type of mark or signature.
In sum, Get Loud presented substantial evidence that the wet signature
requirement is immaterial in determining whether an individual is qualified under
state law to vote. The Board did not counter with evidence to undermine Get Loud’s
showing. The district court did not abuse its discretion or otherwise err in concluding
that Get Loud demonstrated a likelihood of success on the merits of its claim that the
rule requiring wet signatures violates the Materiality Provision of the Civil Rights
Act.
We also agree with the district court that Get Loud showed a likelihood of
irreparable harm. An organization suffers irreparable harm when a defendant’s
conduct results in lost opportunities to conduct election-related activities such as
voter registration. League of Women Voters of U.S. v. Newby, 838 F.3d 1, 8-9 (D.C.
Cir. 2016). Get Loud lost opportunities to register voters before the 2024 elections
because it was prohibited from using its online tool and was forced to reallocate
resources to comply with the rule.
The remaining injunction factors—the balance of equities and the public
interest—merge when the government opposes a preliminary injunction. Nken v.
Holder, 556 U.S. 418, 435 (2009). There is no dispute that successful registration of
qualified voters is in the public interest, and the rule interfered with otherwise lawful
voter registration activities. The new rule prevented Get Loud from using its online
voter registration tool and significantly impaired its registration efforts. The State,
for example, rejected voter registration applications from two individual plaintiffs,
because they applied with a digital signature. The State’s arguments on equities and
public interest are unpersuasive where the State previously accepted digital signatures
without evidence of fraud or other deleterious consequences.
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For these reasons, the district court did not abuse its discretion in enjoining
state officials from enforcing the rule requiring a wet signature on a voter registration
application. The order of the district court is affirmed. The motion to strike the
appellants’ post-argument letter is denied.
STRAS, Circuit Judge, dissenting.
Just because there are other ways to fight fraud does not mean that a method
Arkansas chose, the wet-signature rule, is “[im]material.” 52 U.S.C.
§ 10101(a)(2)(B). Handwritten signatures help ensure that those registering to vote
are who they claim to be and understand what they are doing. At the very least, the
plaintiffs have not made a “clear showing” to the contrary, Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 22 (2008), so I would let Arkansas continue to require them
on voter-registration forms.
I.
Under federal law, state voting rules must be “material.” 52 U.S.C.
§ 10101(a)(2)(B) (prohibiting the denial of the right to vote due to “error[s] or
omission[s]” that are “not material in determining whether such individual is
qualified . . . to vote”). The Arkansas State Board of Election Commissioners has
conceded that the plaintiffs here can enforce this provision,2 so we must decide
2It took some procedural gymnastics to get to this point. Nothing today
forecloses an argument in a future case that no private cause of action exists to
enforce the materiality provision. See Turtle Mountain Band of Chippewa Indians
v. Howe, 137 F.4th 710, 713, 719 (8th Cir. 2025) (concluding that § 2 of the Voting
Rights Act lacks an individually enforceable right under 42 U.S.C. § 1983 based on
its “dual focus on the individuals protected and the entities regulated”); Ark. State
Conf. NAACP v. Ark. Bd. of Apportionment, 86 F.4th 1204, 1208–11 (8th Cir. 2023)
(holding that § 2 of the Voting Rights Act lacks a private right of action based on its
“remedial framework,” which leaves enforcement to the Attorney General); see also
Ark. United v. Thurston, 146 F.4th 673, 677–79 (8th Cir. 2025) (reaching the same
conclusion about § 208 of the Voting Rights Act).
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whether a rule requiring voters to put pen to paper and sign their name on a
registration form is a “material” voting requirement. Id. The short answer is yes:
wet-signature rules have been around in various forms for centuries, and to this day
remain a powerful way of preventing fraud.
A.
Before signatures, people used seals, which involved making an impression on
a piece of paper, usually with wax or a similar substance. See 4 James Kent,
Commentaries on American Law *451; Frederick E. Crane, The Magic of the Private
Seal, 15 Colum. L. Rev. 24, 24 (1915). Many documents included them, from
government decrees and legal records to commercial agreements and private letters.
See 1 William Blackstone, Commentaries *260, *351 (discussing use of the “great
seal” on various orders of the king); G.V.B. Mining Co. v. First Nat’l Bank of Hailey,
95 F. 23, 32–33 (9th Cir. 1899) (noting the requirement that “important contracts”
executed by a corporation include a “corporate seal”); The Complete Letter-Writer;
Or, Polite English Secretary 15–16 (Edinburgh, W. Darling 1778) (discussing the use
of seals in private correspondence). When used on legal documents, seals were “a
mark of authenticity” that provided “evidence of truth” and an “attestation” of their
contents. 2 William Blackstone, Commentaries *304–05. A related function was
impressing upon the parties the importance of the commitment they were making.
See Bates v. Bos. & N.Y.C.R. Co., 92 Mass. (1 Allen) 251, 254 (1865) (explaining that
one “purpose” of seals was to “certainly and effectually fix[]” the parties’ “attention”
on the act). They were burdensome, but they made “fraud[] less likely.” Warren v.
Lynch, 5 Johns. 239, 246 (N.Y. Sup. Ct. 1810) (Kent, C.J.).
Over time, signatures replaced seals. The transition began with the Statute of
Frauds, which required certain types of contracts to be in writing and signed by hand.
See An Act for prevention of Frauds and Perjuries, 1677, 29 Car. 2, c. 3 (Eng.)
(listing the “prevention of . . . fraudulent Practices” as the reason for it); see also
Pratalongo v. Larco, 47 Cal. 378, 383 (1874) (“The English statute of frauds
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require[d] certain contracts to be in writing, and to be signed by the party to be
charged thereby.”). Although the mechanism was different, the reasons were
familiar: “giving authenticity to the whole instrument,” underscoring the significance
of the act to the signers, and preventing fraud. Barry v. Coombe, 26 U.S. (1 Pet.) 640,
651 (1828) (explaining the signature requirement under Maryland’s statute of frauds);
see Waller v. Waller, 42 Va. (1 Gratt.) 454, 480 (1845) (opinion of Allen, J.) (noting
that the purpose of a signature on a will is to “give authenticity to the document”);
Warner v. Tex. & P. Ry. Co., 164 U.S. 418, 423 (1896) (discussing the widespread
adoption of the Statute of Frauds); In re Fransen’s Will, 2 Pa. 202, 206 (1856)
(explaining that the signature was one of the “solemnities of execution”). In the
American colonies, legislatures began allowing a “scroll”—a hand-drawn
“mark”—instead of a seal on certain documents. Game Place, L.L.C. v.
Fredericksburg 35, LLC, 813 S.E.2d 312, 317 & n.16 (Va. 2018) (discussing the
historical use of scrolls); see Black’s Law Dictionary 1620 (12th ed. 2024) (defining
a “scroll” as “a character affixed . . . in place of a seal,” also known as a “scrawl”).
It could be anything from a “flourish, tracing, mark, or design,” Pardee v. Johnston,
74 S.E. 721, 722 (W. Va. 1912) (citation omitted), to the letters “L.S.,” short for
“locus sigilli,” which in Latin meant “place of the seal,” Black’s Law Dictionary,
supra, at 1125 (defining “locus sigilli”); see Hastings v. Vaughn, 5 Cal. 315, 318
(1855) (describing the initials “L.S.” as “a good seal”).
In the eighteenth and nineteenth centuries, some legal documents, like land
deeds, needed both a written signature and a seal. See 2 Blackstone, Commentaries
*305–06 (noting that courts sometimes required “signing” and “sealing” for a
conveyance); 4 Kent, Commentaries *452–53 (same). It may sound old-fashioned
today, but it reflected a reluctance to move away from the “distinction and solemnity
of seals.” Warren, 5 Johns. at 247; see Bank of U.S. v. Dandridge, 25 U.S. (12
Wheat.) 64, 96 (1827) (“An instrument was much more certainly authenticated by the
seal, than by the name of the maker.”); 4 Kent, Commentaries *453 (arguing that
allowing a “flourish with the pen” or a “scroll” to suffice was “destroying the
character of seals”). It also reflected the reality that forgery of seals was more
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difficult “than a stroke of the pen.”3 Oliver Wendell Holmes, The Common Law 272
(1923). Even into the early twentieth century, seals still had a limited role to play in
authenticating documents. See Briggs v. Partridge, 64 N.Y. 357, 361–62 (1876)
(recognizing the longstanding rule that a contract bearing the seal of an agent did not
bind the undisclosed principal, even though an unsealed contract did); Crowley v.
Lewis, 146 N.E. 374, 374 (N.Y. 1925) (continuing to distinguish between sealed and
unsealed documents under Briggs despite acknowledging that “the importance of the
seal in this state [was] much diminished”).
But by then, handwritten-signature requirements had asserted their dominance,
largely out of convenience. See Commonwealth ex rel. Arrott Steam-Power Mills Co.
v. Arnold, 29 A. 270, 270 (Pa. 1894) (“With the changes of custom and the diffusion
of education the written signature has, in practice, taken the place of the seal as the
important element of the certification.”); Strong v. Strong, 140 P.2d 386, 388 (Cal.
1943) (noting how “seals were replaced by signatures”). Even states that kept the old
sealing requirement would allow parties to satisfy it by “a mere scroll or flourish of
the pen.” Holmes, supra, at 273; see Crane, supra, at 24–25, 32–36 (discussing how
scrolls or the letters “L.S.” became substitutes for them). Wax seals, and the burdens
associated with them, became relics of the past.
We are now right in the middle of a similar evolution from handwritten
signatures to digital ones. Rather than printing a document and signing it with a pen,
3With seals, fraud took a different form. It was fairly simple to lift a seal from
one document and place it on another. See Edward Coke, 2 The Third Part of the
Institutes of the Laws of England 15 (London, M. Flesher 1644) (discussing how it
was considered a “great misprision” to “take wax lawfully imprinted with the great
seal, and fix it to a writing purporting a grant from the king”); 4 William Blackstone,
Commentaries *83 (discussing the “knavish artifice” of lifting “wax bearing the
impression of the great seal off from one patent, and fix[ing] it to another”).
Requiring both a signature and a seal was a way to ensure that the person executing
the document was who they purported to be. See 2 Blackstone, Commentaries *305;
Wood v. Owings, 5 U.S. (1 Cranch) 239, 247 (1803) (explaining that “at common
law,” a deed was both “signed” and “sealed”).
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a person can type their name, draw a symbol with a stylus, or upload a facsimile of
their signature into an online form. See Black’s Law Dictionary, supra, at 1666
(defining an “electronic signature” as “[a]n electronic symbol, sound, or process” on
a document, including a “typed name” or “a digital image of a handwritten
signature”). In many situations, digital signatures get equal weight. See 15 U.S.C.
§ 7001(a)(1) (declaring that, for “any transaction in or affecting interstate or foreign
commerce[,] a signature . . . relating to such transaction may not be denied legal
effect, validity, or enforceability solely because it is in electronic form”).
Many, however, does not mean all. To this day, important documents,
including some once needing a seal, call for a handwritten signature. See, e.g., id.
§ 7003(a)–(b) (excepting “wills, codicils, or testamentary trusts”; papers related to
“adoption, divorce, or other matters of family law”; and documents governed by all
but a few sections of the Uniform Commercial Code from a provision requiring equal
recognition of digital signatures); 8 C.F.R. § 103.2(a)(2) (requiring a “handwritten”
signature for certain immigration forms unless the instructions allow e-filing). Just
in Arkansas, they include wills, promissory notes, bank loans, and certain court
filings. See Ark. Code Ann. §§ 25-32-103(a)–(b), -107 (allowing digital signatures
for all documents “relating to a transaction” except “wills, codicils, or testamentary
trusts” and promissory notes, bank loans, or other transactions governed by the
Uniform Commercial Code); Ark. Sup. Ct. Admin. Ord. No. 21, § 8(b) (calling for
an “original signature[]” for court documents made “under penalty of perjury or
requiring [the] signature of a notary public”).
The reasons have not changed. For those documents, a wet signature is the
something extra that authenticates them, “carries solemn weight,” and prevents fraud.
Vote.org v. Callanen, 89 F.4th 459, 489 (5th Cir. 2023) (citation omitted); see Weems
v. Smith, 237 S.W.2d 880, 883 (Ark. 1951) (“The purpose of . . . requiring wills to be
signed at the end is to prevent fraud.”); James v. Mounts, 644 S.W.3d 425, 432 (Ark.
Ct. App. 2022) (“The purpose of a signature is to authenticate the writing to which
it is affixed . . . .”), vacated on other grounds, 660 S.W.3d 801 (Ark. 2023). When
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and whether to require one has always been a judgment call for policymakers, who
must balance security with convenience, the considerations that dominated the
centuries-long evolution from seals to scrolls to handwritten signatures. See 4 Kent,
Commentaries *452–53 (leaving it up to “municipal regulation” whether to require
a signature, a seal, or both). The balance they have struck, at least for now, is that
certain documents are just too important for digital signatures. See Callanen, 89
F.4th at 489; Aerotek, Inc. v. Boyd, 624 S.W.3d 199, 204–05 (Tex. 2021) (explaining
that the authenticity of a “handwritten, wet-ink signature” can be proven by a
“witness familiar with the signatory’s handwriting, or an expert who has compared
the signature against a genuine specimen,” but that “these authentication methods
may not be applicable to a purely electronic signature”).
To protect the “integrity of the voting process,” Common Cause Ind. v.
Lawson, 937 F.3d 944, 962 (7th Cir. 2019), Arkansas believes voter-registration
forms deserve the same treatment, see Ark. Const. amend. 51, § 6(a)(3)(F) (requiring
a “signature or mark” certifying “under penalty of perjury that the applicant meets
each requirement for voter registration”); 108.00.24 Ark. Code R. § 6 (defining a
“signature or mark” as “a handwritten wet signature or handwritten wet mark”). As
the Board’s director explained, physically signing a registration form is a secure way
of “affirm[ing] that [someone is] qualified to be a voter.” It provides a means of
“identification” and combats “fraud” more effectively than digital signatures, which
have only existed for about three and a half decades. See Jeremiah S. Buckley et al.,
The Law of Electronic Signatures and Records § 2:3 (May 2024 update) (noting that
less than half of the states had electronic-signature laws prior to the drafting of the
Uniform Electronic Transactions Act in the mid-1990s); cf. Miller v. Thurston, 967
F.3d 727, 741 (8th Cir. 2020) (stating that requiring “in-person signatures” for
initiative petitions “prevent[s] fraud”); Kendall v. Balcerzak, 650 F.3d 515, 526 (4th
Cir. 2011) (explaining that requiring a signature for comparison in voting helps
“detect[] fraudulent or otherwise improper signatures”). If Arkansas is right, the
materiality of the requirement speaks for itself. See 52 U.S.C. § 10101(a)(2)(B).
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B.
As the court notes, the word “material” can have different meanings.
Sometimes, the definition is “relevant” or “pertinent.” Webster’s Third New
International Dictionary 1392 (1961). For example, when evaluating the materiality
of a false statement, the bar is low: it must have “a natural tendency to influence, or
[be] capable of influencing, the decision of the decisionmaking body to which it was
addressed.” Neder v. United States, 527 U.S. 1, 16 (1999) (emphasis added) (citation
omitted); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (defining an
issue as “material” for purposes of summary judgment if it “might affect the outcome
of the suit” (emphasis added)). Other times, it implies something “of real importance
or great consequence[,] substantial[,] . . . essential.” Webster’s Third, supra, at 1392.
An example is a prosecutor’s obligation to turn over “material” evidence, which
depends in part upon whether “a reasonable probability [exists] that, had [it] been
disclosed to the defense, the result of the proceeding would have been different.”
United States v. Bagley, 473 U.S. 667, 682 (1985) (plurality opinion) (emphasis
added); see Universal Health Servs., Inc. v. United States, 579 U.S. 176, 193–94
(2016).
When it comes to the materiality of “error[s] or omission[s]” in voting, the
debate centers on those same two possibilities. On one end is “minimal relevance,”
Fla. State Conf. of NAACP v. Browning, 522 F.3d 1153, 1174 (11th Cir. 2008): an
“error or omission” need only be relevant to “ascertain[ing] whether [someone] is
qualified to vote,” Pa. State Conf. of NAACP Branches v. Sec’y Commonwealth of
Pa., 97 F.4th 120, 134 (3d Cir. 2024). On the other is something “closer to outcome-
determinative,” which would cast aside all but the important, or even essential,
requirements of voting. Browning, 522 F.3d at 1174 (describing it as a “higher
burden”).
There is no definition of the word “material” in the Civil Rights Act, but the
“statute as a whole” provides a few clues about its meaning. Robinson v. Shell Oil,
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Co., 519 U.S. 337, 341 (1997). The first is the opening line, which makes clear that
its focus is on protecting the right of “qualified” citizens “to vote at all . . . elections[]
without distinction of race, color, or previous condition of servitude.” 52 U.S.C.
§ 10101(a)(1); cf. Bittner v. United States, 598 U.S. 85, 98 n.6 (2023) (“A preamble,
purpose clause, or recital is a permissible indicator of meaning.” (quoting Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 217
(2012))). Then come three specific limitations on state election procedures, including
the one covering “error[s] or omission[s] on any record or paper” necessary for
voting. 52 U.S.C. § 10101(a)(2)(B). The other two prohibit discrimination in
“apply[ing] any standard, practice, or procedure” for elections and the use of “literacy
test[s],” both of which were ways of disenfranchising black voters in the Jim Crow
South. Id. § 10101(a)(2)(A), (C); see Shelby County v. Holder, 570 U.S. 529, 536
(2013) (discussing the history of literacy tests); Perkins v. City of West Helena, 675
F.2d 201, 210–11 (8th Cir. 1982) (describing other historical standards, practices, and
procedures that led to disenfranchisement, like “poll taxes” and a “whites[-]only”
primary).
What becomes clear, when reading the surrounding provisions, is that “State
law” has a role to play in figuring out who is “qualified . . . to vote,” 52 U.S.C.
§ 10101(a)(2)(B), but it cannot be a pretext for racial discrimination. One frequently
discussed example is making a voter “list the exact number of months and days in his
age.” Browning, 522 F.3d at 1173 (citation omitted); see Schwier v. Cox, 340 F.3d
1284, 1294 (11th Cir. 2003) (discussing the same example). A rule like that one is
“not material” because it is unrelated to “determining whether [an] individual is
qualified . . . to vote” in an election. 52 U.S.C. § 10101(a)(2)(B). A voter may have
to prove their age, but whether they can mathematically calculate and explain it in
various ways is not a qualification of voting. Consistent with the text, materiality
implies something closer to relevance: whether the rule is related to a voter’s
qualifications or just a discriminatory requirement masquerading as a legitimate one.
See Browning, 522 F.3d at 1174; Pa. State Conf. of NAACP Branches, 97 F.4th at 137
(noting that the materiality provision “target[s]” the discriminatory rejection of
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registration forms based on “irrelevant mistakes”); Callanen, 89 F.4th at 482
(explaining that the materiality provision “was written . . . to capture well-disguised
discrimination”).
If the rule were otherwise, state legislatures would lose their ability to enact
“electoral procedures” of all kinds. Carson v. Simon, 978 F.3d 1051, 1062 (8th Cir.
2020) (per curiam); see U.S. Const. art. I, § 4, cl. 1 (entrusting the “Legislature” of
each “State” to “prescribe[]” the “Times, Places and Manner of holding Elections”).
Indeed, only the best ones—those that are important or essential—would survive,
approaching how the narrow-tailoring requirement of strict scrutiny works. See Reed
v. Town of Gilbert, 576 U.S. 155, 171 (2015) (requiring “the Government to prove
that the restriction furthers a compelling interest and is narrowly tailored to achieve
that interest” (citation omitted)); see also Callanen, 89 F.4th at 478 (rejecting
“essential” as “a reasonable meaning” of the materiality provision). Relevance, on
the other hand, tolerates imperfection, provided that the rule has some bearing on
“determining whether [an] individual is qualified . . . to vote.” 52 U.S.C.
§ 10101(a)(2)(B).
This one does. No one disputes that a signature or mark of some kind is
“material.” Id. Indeed, Arkansas’s Constitution makes one a condition of
registration. See Ark. Const. amend. 51, § 6(a)(3)(F) (using it to ensure “that the
applicant meets each requirement for voter registration”); id. § 3 (prohibiting
unregistered voting). Requiring a signature of any kind reminds “individuals who are
trying to register” that they must tell the truth and “actually [be] who they say they
are.” Callanen, 89 F.4th at 487; see Alderson v. Steinberg, 137 S.W.2d 925, 927
(Ark. 1940) (“By signing a document which may be placed of record, the person so
acting says to the world that he or she . . . did, in fact, execute the instrument.”).
Handwritten ones just do it better.
The most obvious advantage is the “solemn weight” of putting an actual pen
to paper, which forces potential voters to think twice about lying in a way that
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drawing on a screen does not. Callanen, 89 F.4th at 489 (citation omitted)
(explaining how physically signing a printed document “has some prospect of getting
the attention of many applicants and dissuading false statements that an electronic
signature . . . does not”); see Eakin v. Adams Cnty. Bd. of Elections, 149 F.4th 291,
315 (3d Cir. 2025) (“Affixing one’s [handwritten] signature onto a legal document
does indeed constitute a solemn act.”). They also create a literal paper trail leading
back to the signer. See Aerotek, Inc., 624 S.W.3d at 204–05. Digital signatures, by
contrast, cannot be compared or verified in the same way, which makes them harder
to authenticate. See id. at 205 (noting the potential problem); see also Cloud Corp.
v. Hasbro, Inc., 314 F.3d 289, 296 (7th Cir. 2002) (remarking that “a handwritten
signature . . . is better evidence of identity than a typed one” (emphasis removed)).
These fraud-fighting features should be no surprise, given that wet signatures
have centuries-old roots in the Statute of Frauds. See 29 Car. 2, c. 3; Thompson v.
DeWine, 976 F.3d 610, 614, 618 (6th Cir. 2020) (holding that a wet-signature
requirement for ballot initiatives furthered a “legitimate” and “compelling” interest
in “preventing fraud by ensuring the authenticity of signatures”). Yet after this case,
Arkansas must abandon this tried-and-true method in favor of digital ones.
It is not hard to see how doing so will make fraud easier, faster, and harder to
detect. All it would take is finding another document with a valid signature, scanning
or taking a picture of it, and pasting it in. Cf. 4 Blackstone, Commentaries *83
(describing a similar practice with seals in which a person lifted the “wax bearing the
impression of the great seal off from one patent, and fixed it to another”); supra note
2 (explaining how signature requirements helped prevent this form of fraud). Digital
signatures could even turn up online, ready for pasting directly into the form. For
potential fraudsters interested in swaying elections, the advantages over copying
signatures by hand are obvious. Cf. United States v. Taylor, 159 F.4th 1136, 1140
(8th Cir. 2025) (emphasizing that “[v]oter fraud is no myth” and describing a scheme
involving dozens of fraudulent forms, including many with fake signatures); Voting
for Am., Inc. v. Steen, 732 F.3d 382, 394 (5th Cir. 2013) (discussing an incident in
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which a “Project Vote employee was convicted . . . for submitting more than 400 fake
voter[-]registration applications” (first alteration in original) (citation omitted)); see
also Jay M. Zitter, Validity of Statute Restricting Voter Registration Solicitations by
Third Parties or Organizations, 55 A.L.R.6th 599 § 4 (2010) (discussing a case that
recognized how third-party voter registration has “at times become a vehicle for voter
fraud and voter[-]registration fraud”).
Even if it is not foolproof, a wet signature provides an added layer of security.
This advantage may explain why at least four other states insist on one for voter-
registration forms, see Fla. Stat. § 97.053(5)(a)(8) (calling for a handwritten signature
unless registering through the Department of Highway Safety and Motor Vehicles);
Ga. Code § 21-2-381(a)(1)(C)(i) (requiring one for an “appl[ication] for an absentee
ballot by mail”); Okla. Stat. tit. 26, § 4-112(B); Tex. Elec. Code § 13.143(d-2), and
three others for petitions or referenda, see Me. Const. art. IV, pt. 3, § 20 (requiring
all “written petition[s]” to include the “original signatures of the petitioners”); Ohio
Rev. Code § 3501.011(A) (stating that “whenever a person is required to sign or affix
a signature” to “any . . . kind of petition,” the signature must be a “written, cursive-
style legal mark”); Or. Rev. Stat. § 250.105(1)(e) (“A filed initiative or referendum
petition must contain only original signatures.”). Pundits and policymakers can
debate whether it is the best approach, but it is remarkable that the court says a
practice developed over centuries for just this purpose is immaterial to “determining
whether” the person turning in a registration form is really who they say they are and
“qualified . . . to vote.” 52 U.S.C. § 10101(a)(2)(B).
II.
The court never meaningfully engages with these justifications. Like the
district court, it appears to rely on a lack of “evidence” supporting the Board’s
“claim[s]” about its wet-signature rule. Ante, at 10. Yet at the preliminary-injunction
stage, the burden “rests entirely with the movant,” Goff v. Harper, 60 F.3d 518, 520
(8th Cir. 1995) (emphasis added), to show that the presence of a wet signature is “not
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material,” 52 U.S.C. § 10101(a)(2)(B) (emphasis added). It is not the Board’s job to
prove it is. See Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (explaining that a
court may not grant a preliminary injunction “unless the movant, by a clear showing,
carries the burden of persuasion” (citation omitted)).
Aside from the court’s burden-shifting error, the evidence it wants is itself
immaterial. It claims that a wet-signature requirement must not matter because in
“practice” no county clerk uses it to “detect fraud.” Ante, at 10. The problem, of
course, is that materiality is about whether something could influence a decision, not
whether it does. See Neder, 527 U.S. at 16 (defining “material” as “capable of
influencing” a person (emphasis added) (citation omitted)); Kungys v. United States,
485 U.S. 759, 771 (1988) (focusing on “whether the [information is] predictably
capable of affecting . . . the official decision” (emphasis added)); see also Basic Inc.
v. Levinson, 485 U.S. 224, 234–35 (1988) (explaining that in the securities-fraud
context, the focus of the “materiality requirement” is on what a “reasonable investor”
would think (emphasis added)).
In the modern era, IRS officials and bank tellers do not pull out a magnifying
glass to examine the signatures on every form or check they receive. See, e.g.,
Cooper v. Union Bank, 507 P.2d 609, 620 (Cal. 1973) (explaining that banks “may
handle several thousand instruments bearing third[-]party indorsements in a single
day” and it is “commercially unreasonable” to expect them to “undertake foolproof
efforts” to verify them). Nor, it is safe to assume, did anyone scrutinize the wax seals
on every document. Rather, they offer a way to evaluate claims of fraud when there
are other reasons to suspect it. See Aerotek, Inc., 624 S.W.3d at 205 (discussing how
to verify a handwritten signature); cf. People v. Marion, 29 Mich. 31, 38 (1874)
(describing how the comparison of seals on two documents showed that one was a
forgery); Collins v. Carnegie (1834) 110 Eng. Rep. 1373, 1374, 1376 (KB) (accepting
a comparison as proof of the authenticity of a seal on a document because “[i]f not,
it is difficult to say what proof would be sufficient”). Not to mention the deterrence
value they provide, which discourages fraud in the first place. See Callanen, 89 F.4th
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at 489 (pointing out that wet signatures “ha[ve] some prospect of getting the attention
of many applicants and dissuading false statements”); see also Stephen Mason, The
Signature in Law: From the Thirteenth Century to the Facsimile 9 (2022) (explaining
that a signature “warn[s] the person affixing [it] that they should take care before
committing themselves to the contents of the document”).
The fact that Arkansas allows the use of any mark, even an “X,” does not make
the wet-signature rule any less material. Recall that one step in the evolution from
seals to signatures was treating certain written marks, called scrolls, as substitutes.
See Game Place, L.L.C., 813 S.E.2d at 317. The trend started in Arkansas by the
early-to-mid 1800s, see Floyd v. Ricks, 14 Ark. 286, 295 (1853) (explaining that a
document with a “scroll” was “adjudged to be sealed”), and culminated in the passage
of a provision in the Arkansas Constitution that placed “sealed and unsealed
instruments” on equal footing, Ark. Const. of 1874 Schedule § 1 (“Until otherwise
provided by law no distinction shall exist between sealed and unsealed instruments,
concerning contracts between individuals, executed since the adoption of the
Constitution of 1868.”). It should be no surprise that voter-registration requirements
follow in the same historical tradition. See Ark. Const. amend. 51, § 6(a)(3)(F)
(requiring a “signature or mark”); see also Henry v. Union Sawmill Co., 287 S.W.
203, 204 (Ark. 1926) (accepting a “mark” as “just as effective as if signed by . . . [a]
written signature[]”).
Besides, if the court is concerned that accepting a mark sets the bar too low,
perhaps any problem lies there, not with requiring the use of a pen to make it. See
Watson v. Billings, 38 Ark. 278, 283 (1881) (describing a statute that allowed a mark
in place of a signature, but only if the signer was illiterate and someone witnessed it);
Ex parte Miller, 3 S.W. 883, 883 (Ark. 1887) (same). If a mark, wet or otherwise,
does not provide a “guarantee” that the person who made it is telling the truth, then
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by the court’s logic the whole requirement is immaterial, despite its long historical
pedigree.4 Ante, at 9. The argument simply proves too much.
It also asks too much. Part of the reason why a wet-signature rule is relevant
is that it eliminates one form of fraud: digitally lifted signatures. See Thompson, 976
F.3d at 618 (noting its ability to “prevent[] fraud by ensuring the authenticity of
signatures”); see also Kendall, 650 F.3d at 526 (explaining that signature
requirements “help[] to make sure that false signatures are not put on the [document]
and that unregistered or ineligible voters do not sign it”). The answer to other forms
of fraud is to enact measures to deal with them, not try to defeat them all at once. See
John Doe No. 1 v. Reed, 561 U.S. 186, 197 (2010) (explaining that states have
“considerable leeway to protect the integrity and reliability” of “election processes,”
especially when it comes to “efforts to root out fraud” (citation omitted)).
Materiality, after all, is not a high bar. Clearing it requires neither perfection
nor a one-size-fits-all solution. See Browning, 522 F.3d at 1175 (“[Section
10101(a)(2)(B)] does not establish a least-restrictive-alternative test for
voter[-]registration applications . . . .”); cf. Crawford v. Marion Cnty. Election Bd.,
553 U.S. 181, 196 (2008) (“While the most effective method of preventing election
fraud may well be debatable, the propriety of doing so is perfectly clear.”). An
obviously material requirement like Arkansas’s wet-signature rule does not become
immaterial simply because other alternatives exist. See Brnovich v. Democratic Nat’l
Comm., 594 U.S. 647, 686 (2021) (recognizing that a state “may take action to
prevent election fraud without waiting for it to occur and be detected within its own
borders”). As centuries of practice show, fighting fraud is more elusive than it
appears. See Burson v. Freeman, 504 U.S. 191, 208 (1992) (noting that “election
fraud” is “difficult to detect”).
4The reason for allowing marks was that not everyone could write their name.
See Ex parte Miller, 3 S.W. at 883. It is ironic that the court would twist an
accommodation that lets more voters register into a reason to treat the requirement
as “[im]material.” 52 U.S.C. § 10101(a)(2)(B).
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III.
In my view, there has been no showing, let alone a “clear” one, Winter, 555
U.S. at 22, that a wet signature is immaterial, particularly when it comes to
“determining whether [an] individual is qualified” to vote, 52 U.S.C.
§ 10101(a)(2)(B). The materiality provision protects voters from discrimination by
guarding against irrelevant barriers to voting. It is not an open invitation for courts
to supervise elections. For these reasons, I dissent.
______________________________
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