Opinion · Court of Appeals for the Fifth Circuit
Marc Veasey v. Greg Abbott
Marc Veasey v. Greg Abbott, 830 F.3d 216 (5th Cir. 2016)
- Type
- Opinion
- Court
- Court of Appeals for the Fifth Circuit
- Jurisdiction
- Federal
- Date
- 2016-07-20
- Topic
- general
noting that “courts regularly utilize statistical analyses to discern whether a law has a discriminatory impact” | holding voter ID law unconstitutional because there were “substantial differences in the evidentiary record” making Crawford’s holding inapplicable | holding voter ID law unconstitutional because there were "substantial differences in the evidentiary record" making Crawford 's holding inapplicable | noting that “courts regularly utilize statistical analyses to discern whether a law has a discriminatory impact” | noting that “courts regularly utilize statistical analyses to discern whether a law has a discriminatory impact” | noting that "courts regularly utilize statistical analyses to discern whether a law has a discriminatory impact" | holding voter ID law unconstitutional because there were "substantial differences in the evidentiary record" making Crawford 's holding inapplicable | holding voter ID law unconstitutional because there were “substantial differences in the evidentiary record” making Crawford’s holding inapplicable | noting that "relatively contemporary examples of discrimination identified by the district court are limited in their probative value in connection with discerning the Texas Legislature's intent" | noting that “relatively contemporary examples of discrimination identified by the district court are limited in their probative value in connection with discern- ing the Texas Legislature’s intent” | affirming finding that Texas voter identification law had "a discriminatory effect on minorities voting rights in violation of Section 2 of the Voting Rights Act" | recognizing “the far more prevalent issue of fraudulent absentee ballots” | explaining that the two claims are different | describing the six forms of photo ID permitted under SB 14 | “Legislators' awareness of a disparate impact on a protected group is not enough: the law must be passed because of that disparate impact.” | “proponents of SB 14 voted to table numerous amendments meant to expand the types of accepted IDs” | “Legislators' awareness of a disparate impact on a protected group is not enough: the law must be passed because of that disparate impact.” | “the Legislature’s response to ameliorative amendments[] demonstrated a lack of responsiveness to minority needs by elected officials” | in challenge to photo ID law, in which the governor was defendant, court considered whether “Texas Legislature passed SB 14 with a racially invidious purpose” | “the Legislature rejected many ameliorative amendments that would have brought SB 14 in line with those states’ voter ID laws” | “[R]acial discrimination need only be one purpose . . . of an official action for a violation to occur.” (cleaned up) | Fifth Circuit “adopt[ing] the two-part framework employed by the Fourth and Sixth Circuits to evaluate Section 2 ‘results’ claims.” | “If a voter is unable to provide SB 14 ID at the poll, the voter can cast a provisional ballot” | “the potential and reality of fraud is much greater in the mail-in ballot context than with in-person voting.” | “The district court did not clearly err in finding that mail-in voting is not an acceptable substitute for in-person voting in the circumstances presented by this case.” | "While probative in theory, even those (after-the-fact) stray statements made by a few individual legislators voting for SB 14 may not be the best indicia of the Texas Legislature’s intent.” | “There are times when a court might give a state legislature an opportunity to cure the infirmities in the statute before permitting the district court to fashion a remedy.” | " 'Proving the motivation behind official action is often a problematic undertaking.' " | “A tailored causation analysis is imperative under Section 2 case law.” | “[M]ail-in voting . . . is far more vulnerable to fraud.” | “A tailored causation analysis is imperative under Section 2 case law.” | "Although courts have often applied the Gingles factors to analyze claims o
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Case: 14-41127 Document: 00513601530 Page: 1 Date Filed: 07/20/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 20, 2016
No. 14-41127
Lyle W. Cayce
Clerk
MARC VEASEY; JANE HAMILTON; SERGIO DELEON; FLOYD CARRIER;
ANNA BURNS; MICHAEL MONTEZ; PENNY POPE; OSCAR ORTIZ; KOBY
OZIAS; LEAGUE OF UNITED LATIN AMERICAN CITIZENS; JOHN
MELLOR-CRUMMEY, KEN GANDY; GORDON BENJAMIN, EVELYN
BRICKNER,
Plaintiffs – Appellees
TEXAS ASSOCIATION OF HISPANIC COUNTY JUDGES AND COUNTY
COMMISSIONERS,
Intervenor Plaintiffs – Appellees
v.
GREG ABBOTT, in his Official Capacity as Governor of Texas; CARLOS
CASCOS, Texas Secretary of State; STATE OF TEXAS; STEVE MCCRAW,
in his Official Capacity as Director of the Texas Department of Public Safety,
Defendants – Appellants
************************************************************************
UNITED STATES OF AMERICA,
Plaintiff – Appellee
TEXAS LEAGUE OF YOUNG VOTERS EDUCATION FUND; IMANI
CLARK,
Intervenor Plaintiffs – Appellees
v.
Case: 14-41127 Document: 00513601530 Page: 2 Date Filed: 07/20/2016
No. 14-41127
STATE OF TEXAS; CARLOS CASCOS, Texas Secretary of State; STEVE
MCCRAW, in his Official Capacity as Director of the Texas Department of
Public Safety,
Defendants – Appellants
************************************************************************
TEXAS STATE CONFERENCE OF NAACP BRANCHES; MEXICAN
AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF
REPRESENTATIVES,
Plaintiffs – Appellees
v.
CARLOS CASCOS, Texas Secretary of State; STEVE MCCRAW, in his
Official Capacity as Director of the Texas Department of Public Safety,
Defendants – Appellants
************************************************************************
LENARD TAYLOR; EULALIO MENDEZ, JR.; LIONEL ESTRADA; ESTELA
GARCIA ESPINOSA; MARGARITO MARTINEZ LARA; MAXIMINA
MARTINEZ LARA; LA UNION DEL PUEBLO ENTERO, INCORPORATED,
Plaintiffs – Appellees
v.
STATE OF TEXAS; CARLOS CASCOS, Texas Secretary of State; STEVE
MCCRAW, in his Official Capacity as Director of the Texas Department of
Public Safety,
Defendants – Appellants
2
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No. 14-41127
Appeal from the United States District Court
for the Southern District of Texas
Before STEWART, Chief Judge, and JOLLY, DAVIS, JONES, SMITH,
DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES,
GRAVES, HIGGINSON, and COSTA, Circuit Judges.
HAYNES, Circuit Judge, joined by STEWART, Chief Judge, and DAVIS,
PRADO, SOUTHWICK, GRAVES, and HIGGINSON, Circuit Judges, in full;
DENNIS and COSTA, Circuit Judges, joining in all but Part II.A.1 and
concurring in the judgment. 1
In 2011, Texas (“the State”) passed Senate Bill 14 (“SB 14”), which
requires individuals to present one of several forms of photo identification in
order to vote. See Act of May 16, 2011, 82d Leg., R.S., ch. 123,
2011 Tex. Gen. Laws 619
. Plaintiffs filed suit challenging the constitutionality and legality of the law. The district court held that SB 14 was enacted with a racially discriminatory purpose, has a racially discriminatory effect, is a poll tax, and unconstitutionally burdens the right to vote. See Veasey v. Perry,71 F. Supp. 3d 627, 633
(S.D. Tex. 2014). The State appealed from that decision, and a panel of our court affirmed in part, vacated in part, and remanded the case for further findings. See Veasey v. Abbott,796 F.3d 487, 493
(5th Cir. 2015), reh’g en banc granted,815 F.3d 958
(5th Cir. 2016). The State filed a petition for
this court to rehear the case en banc, which we granted.
1 Part II.A.1 as written represents the opinion of a plurality of the court. However, a
majority of the court agrees that there are infirmities in the district court’s opinion regarding
Plaintiffs’ discriminatory purpose claim, requiring reversal of the district court’s judgment
that SB 14 was passed with a racially discriminatory purpose. A majority of the court also
agrees that, given the court’s decision to reverse the district court’s judgment as to this claim,
the court should remand to the district court with instructions to reweigh the evidence in
light of this opinion.
3
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No. 14-41127
I. Background
A. Senate Bill 14
Prior to the implementation of SB 14, a Texas voter could cast a ballot in
person by presenting a registration certificate—a document mailed to voters
upon registration. TEX. ELEC. CODE §§ 13.142, 63.001(b) (West 2010). Voters
appearing without the certificate could cast a ballot by signing an affidavit and
presenting one of multiple forms of identification (“ID”), including a current or
expired driver’s license, a photo ID (including employee or student IDs), a
utility bill, a bank statement, a paycheck, a government document showing the
voter’s name and address, or mail addressed to the voter from a government
agency. Id. §§ 63.001, 63.0101 (West 2010).
With the implementation of SB 14, Texas began requiring voters to
present certain specific forms of identification at the polls. These include: (1) a
Texas driver’s license or personal identification card issued by the Department
of Public Safety (“DPS”) that has not been expired for more than 60 days; (2) a
U.S. military identification card with a photograph that has not been expired
for more than 60 days; (3) a U.S. citizenship certificate with a photo; (4) a U.S.
passport that has not been expired for more than 60 days; (5) a license to carry
a concealed handgun issued by DPS that has not been expired for more than
60 days; or (6) an Election Identification Certificate (“EIC”) issued by DPS that
has not been expired for more than 60 days. 2 TEX. ELEC. CODE § 63.0101 (West
Supp. 2014). 3
2 We refer to these required forms of identification under SB 14 as “SB 14 ID.”
3 SB 14 also requires the name on the photo ID to be “substantially similar” to the
voter’s registered name. TEX. ELEC. CODE § 63.001(c) (West Supp. 2014). If the names are
not identical but are substantially similar, the voter must sign an affidavit that the voter and
the registered voter are one and the same. Id. If the names are not substantially similar,
the voter may submit a provisional ballot and within six days must go to the county registrar
4
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SB 14 states that DPS “may not collect a fee for an [EIC] or a duplicate
[EIC],” TEX. TRANSP. CODE § 521A.001(b) (West 2013), and allows DPS to
promulgate rules for obtaining an EIC, id. § 521A.001(f); § 521.142. To receive
an EIC, DPS rules require a registered voter to present either: (A) one form of
primary ID, (B) two forms of secondary ID, or (C) one form of secondary ID and
two pieces of supporting identification. 37 TEX. ADMIN. CODE § 15.182(1).
Thus, any application for an EIC requires either one Texas driver’s license or
personal identification card that has been expired for less than two years, or
one of the following documents, accompanied by two forms of supporting
identification: (1) an original or certified copy of a birth certificate from the
appropriate state agency; (2) an original or certified copy of a United States
Department of State Certification of Birth for a U.S. citizen born abroad;
(3) U.S. citizenship or naturalization papers without a photo; or (4) an original
or certified copy of a court order containing the person’s name and date of birth
and indicating an official change of name and/or gender. Id. § 15.182(3). 4
Before May 27, 2015, a statutory provision distinct from SB 14 imposed
a $2 or $3 fee for a certified copy of a birth certificate. 5 TEX. HEALTH & SAFETY
with additional ID to verify his or her identity. Id. §§ 63.001(g), 63.011, 65.0541(a) (West
Supp. 2014).
4 Among the forms of supporting identification are: voter registration cards, school
records, insurance policies that are at least two years old, identification cards or driver’s
licenses issued by another state that have not been expired for more than two years, Texas
vehicle or boat titles or registrations, military records, Social Security cards, W-2 forms,
expired Texas driver’s licenses, government agency ID cards, unexpired military dependent
identification cards, Texas or federal parole or mandatory release forms, federal inmate ID
cards, Medicare or Medicaid cards, immunization records, tribal membership cards from
federally recognized tribes, and Veteran’s Administration cards. 37 TEX. ADMIN. CODE
§ 15.182(4).
5 The Department of State Health Services (“DSHS”) waived most of the fees for
obtaining a birth certificate to get an EIC, but this provision separately required the Bureau
of Vital Statistics, local registrars, and county clerks to collect a $2 fee for the issuance of a
5
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CODE § 191.0045 (West 2010). As discussed below, after the district court
issued its judgment and the panel conducted oral argument in this case, the
Texas Legislature passed Senate Bill 983 during the 2015 legislative session
and eliminated this fee.
Persons who have a disability are exempt from SB 14’s photo ID
requirement if they are able to provide the voter registrar with documentation
of their disability from the U.S. Social Security Administration or Department
of Veterans Affairs. TEX. ELEC. CODE § 13.002(i) (West Supp. 2014). Other
persons may vote by provisional ballot without a photo ID if they file affidavits
either asserting a religious objection to being photographed or asserting that
their SB 14 ID was lost or destroyed as a result of a natural disaster occurring
within 45 days of casting a ballot. Id. § 65.054. Additionally, voters who will
be 65 or older as of the date of the election may vote early by mail. Id. § 82.003.
If a voter is unable to provide SB 14 ID at the poll, the voter can cast a
provisional ballot after executing an affidavit stating that the voter is
registered and eligible to vote. Id. § 63.001(a), (g). The vote counts if the voter
produces SB 14 ID to the county registrar within six days of the election. Id.
§ 65.0541.
SB 14 requires county registrars to inform applicants of the new voter
ID requirements when issuing voter registration certificates, id. § 15.005, and
requires both the Secretary of State and voter registrar of each county with a
website to post SB 14’s requirements online. Id. § 31.012(a). The
requirements must also be placed prominently at polling places. Id. § 62.016.
Additionally, the Secretary of State must “conduct a statewide effort to educate
certified copy of a birth certificate, and permitted local registrars and county clerks to impose
an additional $1 fee. TEX. HEALTH & SAFETY CODE § 191.0045(d), (e), (h) (West 2010).
6
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No. 14-41127
voters regarding the identification requirements for voting.” Id. § 31.012(b).
The district court found that SB 14 allocated a one-time expenditure of $2
million for voter education. 6 Veasey v. Perry,
71 F. Supp. 3d at 649
.
B. Procedural History
The State began enforcing SB 14 on June 25, 2013. 7 The plaintiffs and
intervenors 8 (collectively, “Plaintiffs”) filed suit against Defendants to enjoin
enforcement of SB 14, and their suits were consolidated before one federal
district court in the Southern District of Texas. See Veasey v. Perry,
71 F. Supp. 3d at 632
. Plaintiffs claim that SB 14’s photo identification requirements
violate the Fourteenth and Fifteenth Amendments to the United States
Constitution and Section 2 of the Voting Rights Act because SB 14 was enacted
with a racially discriminatory purpose and has a racially discriminatory effect.
Plaintiffs also claim that SB 14’s photo ID requirement places a substantial
6The district court also found that one-quarter of the $2 million was earmarked to
research what type of voter education was needed. Veasey v. Perry,
71 F. Supp. 3d at 649
.
7 A three-judge district court declined to grant judicial preclearance to override the
United States Attorney General’s denial of preclearance. See Texas v. Holder,
888 F. Supp. 2d 113
, 144–45 (D.D.C. 2012), vacated and remanded,133 S. Ct. 2886
(2013). The Supreme Court vacated and remanded this decision when it issued Shelby County v. Holder,133 S. Ct. 2612
(2013), which held unconstitutional the coverage formula in Section 4(b) used to
determine which jurisdictions were subject to the preclearance requirement in Section 5 of
the Voting Rights Act. Thereafter, Texas began enforcing SB 14.
8 Plaintiff-Intervenor Texas League of Young Voters Education Fund (the “Texas
League”) was non-operational when the panel opinion was issued and remained so at least
at the time the supplemental en banc briefs were filed in this case. “A claim becomes moot
when ‘the parties lack a legally cognizable interest in the outcome.’” Nat’l Rifle Ass’n of Am.,
Inc. v. McCraw,
719 F.3d 338
, 344 n.3 (5th Cir. 2013) (quoting Powell v. McCormack,395 U.S. 486, 496
(1969)). The Texas League argues that it nonetheless has standing because many of the Texas voters whose inability to obtain SB 14 ID gave rise to the Texas League’s standing remain disenfranchised by SB 14. Because other Plaintiffs have standing to challenge SB 14 and because the court’s remedy will reach all voters who do not have or cannot reasonably obtain SB 14 ID (regardless of their membership in the Texas League), we need not separately address the Texas League’s standing. See Nat’l Rifle Ass’n,719 F.3d at 344
n.3 (“Only one of the petitioners needs to have standing to permit us to consider the
petition for review.”).
7
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burden on the fundamental right to vote under the First and Fourteenth
Amendments, and constitutes a poll tax under the Fourteenth and Twenty-
Fourth Amendments. The State defends SB 14 as a constitutional requirement
imposed to prevent in-person voter fraud and increase voter confidence and
turnout.
The district court conducted a nine-day bench trial at which dozens of
expert and lay witnesses testified by deposition or in person. Following that
bench trial, the district court issued a lengthy and comprehensive opinion
holding:
SB 14 creates an unconstitutional burden on the right to vote
[under the First and Fourteenth Amendments], has an
impermissible discriminatory effect against Hispanics and
African–Americans [under Section 2 of the Voting Rights Act], and
was imposed with an unconstitutional discriminatory purpose [in
violation of the Fourteenth and Fifteenth Amendments and
Section 2]. [Furthermore,] SB 14 constitutes an unconstitutional
poll tax [under the Fourteenth and Twenty-Fourth Amendments].
Veasey v. Perry,
71 F. Supp. 3d at 633
. Shortly before in-person early voting was scheduled to begin for the November 2014 elections, the district court “enter[ed] a permanent and final injunction against enforcement of the voter identification provisions [of SB 14], Sections 1 through 15 and 17 through 22.” 9Id.
at 707 & n.583. Since it struck the State’s voter ID law so close to the
impending November 2014 election, the district court ordered the State to
“return to enforcing the voter identification requirements for in-person voting
9 The district court did not enjoin enforcement of sections 16, 23, and 24 in accordance
with SB 14’s severability clause. Sections 16 and 23 relate to increasing the penalties and
offense levels for election code violations. See TEX. ELEC. CODE § 64.012 historical note (West
2010 & Supp. 2014) [Act of May 16, 2011, 82d Leg., R.S., ch. 123, §§ 16, 23,
2011 Tex. Gen. Laws 619
, 623, 625]. Section 24 has expired, but once related to the purposes for which the voter registrars could use certain funds disbursed under the election code. See Act of May 16, 2011, 82d Leg., R.S., ch. 123, § 24,2011 Tex. Gen. Laws 619
.
8
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in effect immediately prior to the enactment and implementation of SB 14.”
Id. at 707
. The district court retained jurisdiction to review any remedial legislation and to pre-approve any administrative remedial measures.Id.
at
707–08.
In October 2014, the State appealed the district court’s final judgment,
and a panel of this court granted the State’s emergency motion for stay pending
appeal, grounding its decision primarily in “the importance of maintaining the
status quo on the eve of an election.” Veasey v. Perry,
769 F.3d 890, 895
(5th Cir. 2014). Plaintiffs filed emergency motions before the Supreme Court, seeking to have this court’s stay vacated. The Supreme Court denied these motions to vacate the stay of the district court’s judgment. See Veasey v. Perry,135 S. Ct. 9
(2014). Therefore, this court’s stay of the district court’s injunction
remained in place, and SB 14 continues to be enforced.
On May 27, 2015, after oral argument was heard by the panel that
initially considered this appeal, Senate Bill 983 (“SB 983”) was signed into law,
eliminating the fee “associated with searching for or providing a record,
including a certified copy of a birth record, if the applicant [for the record]
states that the applicant is requesting the record for the purpose of obtaining
an election identification certificate.” Act of May 25, 2015, 84th Leg., R.S., ch.
130, 2015 Tex. Sess. Laws Serv. Ch. 130 (codified as an amendment to TEX.
HEALTH & SAFETY CODE § 191.0046(e)) (hereinafter “SB 983”). SB 983 became
effective immediately. Id. §§ 2–3 (codified as note to TEX. HEALTH & SAFETY
CODE § 191.0046); see also S.J. of Tex., 84th Leg., R.S., 1449–50 (2015)
(reporting unanimous passage out of the Texas Senate); H.J. of Tex., 84th Leg.,
R.S., 4478–79 (2015) (reporting passage by 142 to 0, with one member absent,
in the Texas House). SB 983 provides that “a local registrar or county clerk
who issues a birth record” required for an EIC that would otherwise be entitled
9
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to collect a fee for that record “is entitled to payment of the amount from the
[D]epartment [of State Health Services].” Act of May 25, 2015, 84th Leg., R.S.,
ch. 130 (codified as an amendment to TEX. HEALTH & SAFETY CODE
§ 191.0046(f)). SB 983 did not appropriate funds to spread public awareness
about the free birth records. The parties addressed the potential effect of SB
983 on their claims before both the panel and our full court, and we have
accounted for its passage. 10
Considering the State’s appeal from the district court’s judgment, the
panel opinion held that the district court committed legal errors in conducting
its discriminatory purpose analysis; therefore, it vacated that portion of the
district court’s opinion and remanded the case for further proceedings. See
Veasey,
796 F.3d at 493, 498
. Noting that the finding on remand might be different, the panel opinion addressed the Plaintiffs’ other claims.Id. at 493
. It affirmed the district court’s finding that SB 14 has a discriminatory effect in violation of Section 2 of the Voting Rights Act and remanded for consideration of the proper remedy.Id.
It vacated the district court’s holding that SB 14 constitutes a poll tax and rendered judgment on that claim for the State.Id.
Finally, the panel opinion vacated the district court’s determination that SB
10 The parties also filed Rule 28(j) letters before the panel that initially heard this
case. The parties noted the passage of SB 1934, effective on September 1, 2015, which
provides that state-issued identification cards issued to individuals age 60 and older expire
on a date to be specified by DPS. Act of May 29, 2015, 84th Leg., R.S., S.B. 1934 (codified as
an amendment to TEX. TRANSP. CODE § 521.101(f)(1)). Before this new law, ID cards for those
60 and older did not expire. 37 TEX. ADMIN. CODE § 15.30. While Plaintiffs contended before
the panel initially considering this case that SB 1934 will exacerbate the discriminatory effect
of SB 14, the State insisted SB 1934 was passed merely to comply with the federal REAL ID
Act. See
6 C.F.R. § 37.5
(a). The panel opinion concluded that this issue is not yet ripe for our review. See Texas v. United States,523 U.S. 296, 300
(1998) (“A claim is not ripe for
adjudication if it rests upon contingent future events that may not occur as anticipated, or
indeed may not occur at all.” (citation omitted)). The parties have not raised this issue again
before our full court.
10
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14 violates the First and Fourteenth Amendments of the U.S. Constitution,
pursuant to the doctrine of constitutional avoidance, and dismissed those
claims.
Id.
While this case was awaiting oral argument before our full court, in light of the upcoming elections in November 2016, the parties applied to the Supreme Court to vacate the stay of the district court’s injunction that a panel of this court originally entered in October 2014. The Supreme Court denied the motion to vacate the stay but noted that if, by July 20, 2016, this court had “neither issued an opinion on the merits of the case nor issued an order vacating or modifying the current stay order, an aggrieved party [could] seek interim relief from th[e Supreme] Court by filing an appropriate application.” Veasey v. Abbott,136 S. Ct. 1823
(2016).
II. Section 2 of the Voting Rights Act
A. Discriminatory Purpose
The State appeals the district court’s holding that SB 14 was passed with
a discriminatory purpose in violation of the Fourteenth and Fifteenth
Amendments and Section 2 of the Voting Rights Act. We review this
determination for clear error. “If the district court’s findings are plausible in
light of the record viewed in its entirety, we must accept them, even though we
might have weighed the evidence differently if we had been sitting as a trier of
fact.” Price v. Austin Indep. Sch. Dist.,
945 F.2d 1307, 1312
(5th Cir. 1991) (citation omitted). However, when the district court’s “findings are infirm because of an erroneous view of the law, a remand is the proper course unless the record permits only one resolution of the factual issue,” Pullman-Standard v. Swint,456 U.S. 273, 292
(1982), in which case reversing and rendering is the proper course, Meche v. Doucet,777 F.3d 237
, 246–47 (5th Cir.), cert. denied,136 S. Ct. 111
(2015).
11
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We apply the framework articulated in Village of Arlington Heights v.
Metropolitan Housing Development Corp.,
429 U.S. 252
, 265–68 (1977), to determine whether SB 14 was passed with a discriminatory purpose. Although the district court properly cited the Arlington Heights framework, we conclude that some “findings are infirm,” necessitating a remand on this point. Pullman-Standard,456 U.S. at 292
. Since the record does not “permit[] only
one resolution of the factual issue,” and there is evidence that could support
the district court’s finding of discriminatory purpose, we must remand for a re-
weighing of the evidence. 11 See id.
1. Legal Errors in the District Court’s Analysis
“Proof of racially discriminatory intent or purpose is required to show a
violation of the Equal Protection Clause.” Arlington Heights,
429 U.S. at 265
. However, “[r]acial discrimination need only be one purpose, and not even a primary purpose,” of an official action for a violation to occur. United States v. Brown,561 F.3d 420, 433
(5th Cir. 2009) (citation omitted). “Legislative motivation or intent is a paradigmatic fact question.” Prejean v. Foster,227 F.3d 504, 509
(5th Cir. 2000) (citing Hunt v. Cromartie,526 U.S. 541, 549
(1999)). “Proving the motivation behind official action is often a problematic undertaking.” Hunter v. Underwood,471 U.S. 222, 228
(1985).
11 One of the dissenting opinions suggests that the majority opinion flouts the canon
of constitutional avoidance by reaching the discriminatory purpose claim. We recognize the
canon of constitutional avoidance, and where possible, we have avoided reaching
constitutional claims unnecessarily, see infra Parts III and IV. However, we cannot avoid
ruling on the discriminatory intent claim here, where the remedy to which Plaintiffs would
be entitled for a discriminatory intent violation is potentially broader than the remedy the
district court may fashion for the discriminatory impact violation. See City of Richmond v.
United States,
422 U.S. 358, 378
(1975) (holding, in the discriminatory purpose context, that
“[a]n official action . . . taken for the purpose of discriminating . . . on account of . . . race has
no legitimacy at all”).
12
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In Arlington Heights, the Supreme Court set out five nonexhaustive
factors to determine whether a particular decision was made with a
discriminatory purpose, 12 and courts must perform a “sensitive inquiry into
such circumstantial and direct evidence of intent as may be available.” 13 See
429 U.S. at 266–68. “Those factors include: (1) the historical background of the
decision, (2) the specific sequence of events leading up to the decision,
(3) departures from the normal procedural sequence, (4) substantive
departures, and (5) legislative history, especially where there are
contemporary statements by members of the decision-making body.” Overton
12 The State argues that, instead of applying the Arlington Heights standard, we
should apply a “clearest proof” standard grafted from cases involving the determination of
whether a legislature meant to impose criminal punishment through a civil law when the
law faces an ex post facto challenge. See, e.g., Smith v. Doe,
538 U.S. 84
, 92–93 (2003); Kansas v. Hendricks,521 U.S. 346
, 360–61 (1997); Flemming v. Nestor,363 U.S. 603, 613
, 617–20 (1960). In those cases, courts deferred to legislatures’ categorizations of laws as “civil” except upon “the clearest proof” that the laws were “so punitive either in purpose or effect as to negate” the “civil” label. Hendricks,521 U.S. at 361
(citation omitted). The Supreme Court has not applied this standard in the voting rights context. See generally Arlington Heights,429 U.S. 252
; Hunter,471 U.S. 222
; cf. Pers. Adm’r of Mass. v. Feeney,442 U.S. 256
(1979); Lodge v. Buxton,639 F.2d 1358
(5th Cir. Unit B Mar. 1981). Instead, we have noted that discriminatory intent in this context may be shown through circumstantial evidence, as discriminatory motives are often “cleverly cloaked in the guise of propriety.” Lodge,639 F.2d at 1363
. We decline to apply the State’s proposed standard in this context.
13 Neither Arlington Heights nor our decision in Price,
945 F.2d 1307
, requires direct evidence. The district court here allowed extensive discovery of legislative materials which did not yield a “smoking gun.” The district court could have found, but was not required to find, that this lack of a smoking gun supports the State’s position here. That was the situation that we addressed in Price, and in that case we found no clear error in the district court’s decisions about what evidence to credit. As the district court explained here, SB 14’s proponents knew at the time that SB 14 would be subject to the preclearance requirement, Veasey v. Perry,71 F. Supp. 3d at 658, 701
, so the lack of a smoking gun is not surprising. The latter point makes it even more important that Price noted direct evidence would be stronger than circumstantial evidence, but only “[t]o the extent that the justifications advanced in [legislators’] testimon[ies] do not demonstrate a pretext for intentionally discriminatory actions.” Price,945 F.2d at 1318
. As we note herein, we conclude there is
evidence that could support a finding that the Legislature’s justification of ballot integrity
was pretextual in relation to the specific, stringent provisions of SB 14.
13
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No. 14-41127
v. City of Austin,
871 F.2d 529, 540
(5th Cir. 1989) (citing Arlington Heights, 429 U.S. at 267–68). Legislators’ awareness of a disparate impact on a protected group is not enough: the law must be passed because of that disparate impact. Pers. Adm’r of Mass. v. Feeney,442 U.S. 256, 279
(1979). The challengers bear the burden to show that racial discrimination was a “‘substantial’ or ‘motivating’ factor behind enactment of the law”; if they meet that burden, “the burden shifts to the law’s defenders to demonstrate that the law would have been enacted without this factor.” Hunter,471 U.S. at 228
(citation omitted).
The State’s stated purpose in passing SB 14 centered on protection of the
sanctity of voting, avoiding voter fraud, and promoting public confidence in the
voting process. No one questions the legitimacy of these concerns as motives.
The disagreement centers on whether SB 14 was passed with impermissible
motives as well. We recognize that evaluating motive, particularly the motive
of dozens of people, is a difficult enterprise. We acknowledge the charged
nature of accusations of racism, particularly against a legislative body, but we
must also face the sad truth that racism continues to exist in our modern
American society despite years of laws designed to eradicate it. We appreciate
the district court’s efforts to address this difficult inquiry. Nonetheless, we
hold that much of the evidence upon which the district court relied was
“infirm.” See Pullman-Standard,
456 U.S. at 292
.
One type of evidence on which the district court relied in seeking to
discern the Legislature’s intent was Texas’s history of enacting racially
discriminatory voting measures. See Veasey v. Perry, 71 F. Supp. 3d at 633–
36. It noted, for instance, Texas’s use of all-white primaries from 1895–1944,
literacy tests and secret ballots from 1905–1970, and poll taxes from 1902–
1966.
Id.
at 634–35. While the record also contains more contemporary
14
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No. 14-41127
examples, see id. at 635, 636 & n.23, the district court relied too heavily on the
evidence of State-sponsored discrimination dating back hundreds of years, cf.
Shelby Cty. v. Holder,
133 S. Ct. 2612, 2628
(2013) (noting that “history did not
end in 1965”).
“The historical background of the decision is one evidentiary source,
particularly if it reveals a series of official actions taken for invidious
purposes,” Arlington Heights,
429 U.S. at 267
, but the Supreme Court has cautioned that “unless historical evidence is reasonably contemporaneous with the challenged decision, it has little probative value,” McCleskey v. Kemp,481 U.S. 279
, 298 n.20 (1987) (resolving that laws in force during and just after the
Civil War were not probative of the legislature’s intent many years later).
More recently, the Court in Shelby County also counseled against undue
reliance on noncontemporary evidence of discrimination in the voting rights
context. 133 S. Ct. at 2618–19, 2631 (striking down Section 4(b) of the Voting
Rights Act because “the conditions that originally justified these measures no
longer characterize voting in the covered jurisdictions”). In light of these cases,
the most relevant “historical” evidence is relatively recent history, not long-
past history. 14 We recognize that history provides context and that historical
discrimination (for example, in education) can have effects for many years.
But, given the case law we describe above and the specific issue in this case,
we conclude that the district court’s disproportionate reliance on long-ago
history was error.
14 “Relatively recent” does not mean immediately contemporaneous. Shelby County
emphasized that “things have changed” since the 1965 passage of the Voting Rights Act,
133 S. Ct. at 2625
, but it did not articulate a particular time limit, seeid.
at 2625–27. Nor do we.
Suffice it to say the closer in time, the greater the relevance, while always recognizing that
history (even “long-ago history”) provides context to modern-day events.
15
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No. 14-41127
We also recognize that not all “history” was “long ago” and that there
were some more contemporary examples of discrimination identified by the
Plaintiffs in the district court. The evidence of relatively recent discrimination
cited by the district court is more probative of discriminatory intent. See, e.g.,
Veasey v. Perry,
71 F. Supp. 3d at 635
, 636 & n.23. Nonetheless, several of the relatively contemporary examples of discrimination identified by the district court are limited in their probative value in connection with discerning the Texas Legislature’s intent. For example, in a state with 254 counties, we do not find the reprehensible actions of county officials in one county (Waller County) to make voting more difficult for minorities to be probative of the intent of legislators in the Texas Legislature, which consists of representatives and senators from across a geographically vast, highly populous, and very diverse state. See Miss. State Chapter, Operation Push, Inc. v. Mabus (Operation Push),932 F.2d 400
, 409–10 (5th Cir. 1991) (stating that “[e]vidence
of disparate registration rates or similar registration rates in individual
counties could not provide dispositive support” for the claim that plaintiffs
could not participate in the political process at the state level (emphasis
added)).
Additionally, the district court relied on contemporary examples of
statewide discrimination evidenced by two redistricting cases that, taken
alone, form a thin basis for drawing conclusions regarding contemporary State-
sponsored discrimination. The first, Bush v. Vera,
517 U.S. 952, 976
(1996),
found that a Texas redistricting plan to create three majority-minority districts
violated the Equal Protection Clause of the Fourteenth Amendment because
race was the predominant factor, the plans ignored traditional redistricting
criteria, and their shapes could only be explained as the product of
unconstitutional racial gerrymandering. The second case found voter dilution
16
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No. 14-41127
affecting Hispanics in the redrawing of one congressional district. See League
of Latin Am. Citizens v. Perry (LULAC),
548 U.S. 399
, 439–40 (2006). Although citing discussions of the historic discrimination against Hispanics in Texas, the Court did not base its decision on a conclusion that the legislature intentionally discriminated based upon ethnicity.Id.
at 440–42. Instead, it looked at history as a context for the disenfranchisement of voters who had grown disaffected with the Hispanic Congressman the legislature sought to protect by its redrawing of the district.Id.
at 438–41. The Court did not find any vote dilution as to African Americans in the drawing of a different district.Id. at 444
. Thus, these cases do not lend support for a finding of “relatively recent”
discrimination. 15
The district court’s reliance on post-enactment speculation by opponents
of SB 14 was also misplaced. Discerning the intent of a decisionmaking body
is difficult and problematic. Hunter,
471 U.S. at 228
. To aid in this task, courts may evaluate “contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports. In some extraordinary instances the members might be called to the stand at trial to testify concerning the purpose of the official action . . . .” Arlington Heights,429 U.S. at 268
. Where the court is asked to identify the intent of an entire state legislature, as opposed to a smaller body, the charge becomes proportionately more challenging. Hunter,471 U.S. at 228
. As United States
v. O’Brien explains:
15 Nonetheless, as discussed infra note 28, the Court’s conclusion in LULAC that
Texas’s 2003 redistricting plan violated the Voting Rights Act does evidence a history of
discrimination that is relevant to our discriminatory effect analysis, because historical
instances of discrimination continue to produce socioeconomic conditions that the district
court found contributed to the racial disparities in ID possession.
17
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No. 14-41127
Inquiries into congressional motives or purposes are a hazardous
matter. When the issue is simply the interpretation of legislation,
the Court will look to statements by legislators for guidance as to
the purpose of the legislature, because the benefit to sound
decision-making in this circumstance is thought sufficient to risk
the possibility of misreading Congress’ purpose. It is entirely a
different matter when we are asked to void a statute that is, under
well-settled criteria, constitutional on its face, on the basis of what
fewer than a handful of Congressmen said about it. What
motivates one legislator to make a speech about a statute is not
necessarily what motivates scores of others to enact it, and the
stakes are sufficiently high for us to eschew guesswork.
391 U.S. 367
, 383–84 (1968) (footnote omitted).
To ascertain the Texas Legislature’s purpose in passing SB 14, the
district court mistakenly relied in part on speculation by the bill’s opponents
about proponents’ motives (rather than evidence of their statements and
actions). For instance, it credited the following: Representative Hernandez-
Luna’s simple assertion that two city council seats in Pasadena, Texas were
made into at-large seats “in order to dilute the Hispanic vote and
representation”; repeated testimony that the 2011 session was imbued with
anti-immigrant sentiment; 16 and testimony by the bill’s opponents that they
believed the law was passed with a discriminatory purpose. Veasey v. Perry,
71 F. Supp. 3d at 637
, 655–57.
“The Supreme Court has . . . repeatedly cautioned—in the analogous
context of statutory construction—against placing too much emphasis on the
contemporaneous views of a bill’s opponents.” 17 Butts v. City of New York, 779
16 The relevance of this evidence apparently rests partially upon the unsupported
premise that a legislator concerned about border security or opposed to the entry into Texas
of undocumented immigrants is also necessarily in favor of suppressing voting by American
citizens of color.
17 Here, the problematic evidence is the speculation and conclusions of the opposing
legislators. We are not suggesting that the bill opponents lack credibility because they are
18
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No. 14-
41127 F.2d 141
, 147 (2d Cir. 1985) (citing, inter alia, Ernst & Ernst v. Hochfelder,425 U.S. 185
, 204 n.24 (1976)). We too have held that such statements are entitled to “little weight.” Mercantile Tex. Corp. v. Bd. of Governors of Fed. Reserve Sys.,638 F.2d 1255, 1263
(5th Cir. Unit A Feb. 1981). The Second Circuit
considered such speculation in Butts and held that “the speculations and
accusations of . . . [a] few opponents simply do not support an inference of the
kind of racial animus discussed in, for example, Arlington Heights.” 779 F.2d
at 147 (citation omitted). We agree and conclude that the district court erred
in relying on conjecture by the opponents of SB 14 as to the motivations of
those legislators supporting the law. 18
The district court also placed inappropriate reliance upon the type of
post-enactment testimony which courts routinely disregard as unreliable. See
Barber v. Thomas,
560 U.S. 474, 486
(2010) (“And whatever interpretive force one attaches to legislative history, the Court normally gives little weight to statements, such as those of the individual legislators, made after the bill in question has become law.”); see also Edwards v. Aguillard,482 U.S. 578
, 596
n.19 (1987) (“The Court has previously found the post-enactment elucidation
of the meaning of a statute to be of little relevance in determining the intent of
the legislature contemporaneous to the passage of the statute.”). While
probative in theory, even those (after-the-fact) stray statements made by a few
opposing legislators, as credibility is a question for the trier of fact. Testimony found to be
credible from opponents of the bill about conduct and statements by proponents would be
highly probative. Our point is simply that speculation and conclusory accusations by
opposing legislators are not an appropriate foundation for a finding of purposeful
discrimination.
18 In the different but somewhat analogous realm of employment discrimination, we
have similarly rejected the plaintiff’s testimony that he or she believed that the motivation
of his or her employer was racial or other discrimination. See Byers v. Dall. Morning News,
Inc.,
209 F.3d 419
, 426–27 (5th Cir. 2000).
19
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No. 14-41127
individual legislators voting for SB 14 may not be the best indicia of the Texas
Legislature’s intent. See Operation Push,
932 F.2d at 408
(finding “isolated and ambiguous statements made by . . . legislators” were not compelling evidence of that law’s discriminatory purpose); Jones v. City of Lubbock,727 F.2d 364
, 371 n.3 (5th Cir. 1984) (refusing to “judge intent from the statements
[made by] . . . a single member” of the legislative body).
Because the district court relied upon evidence we conclude is infirm, the
district court’s opinion cannot stand as written. The next question, then, is
whether we reverse and render judgment for the State or remand to the district
court with instructions.
2. Remand for Re-Weighing of the Evidence
While the district court’s analysis contained some legal infirmities, the
record also contained evidence that could support a finding of discriminatory
intent. See Meche, 777 F.3d at 246–47 (noting in review of a district court’s
findings following a bench trial that “[w]here findings are infirm because of an
erroneous view of the law, a remand is the proper course unless the record
permits only one resolution of the factual issue”). Therefore, under Pullman-
Standard,
456 U.S. at 292
, we must remand the discriminatory intent issue to
the district court to reweigh the factors in light of this opinion.
In Pullman-Standard, the Supreme Court reversed a panel of this court
after the panel weighed the facts and rendered judgment, rather than
remanding for further proceedings.
Id.
at 292–93. The Pullman-Standard panel of this court had concluded that the district court erred by not considering all relevant evidence and suggested that the district court might have reached a different conclusion had it properly considered the evidence.Id.
at 284–85, 292. The Supreme Court admonished that “discriminatory
intent . . . is a factual matter subject to the clearly-erroneous standard . . .
20
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No. 14-41127
[and] when a district court’s finding on such an ultimate fact is set aside for an
error of law, the court of appeals is not relieved of the usual requirement of
remanding for further proceedings to the tribunal charged with the task of
factfinding in the first instance.”
Id. at 293
. The Court expressed concern that this court would ignore such an “elementary” principle and instructed that it is not the purview of this court to produce an “independent consideration of the totality of the circumstances.”Id.
at 291–92.
Pursuant to this clear guidance, our inquiry is whether “the record
permits of only one resolution of the factual issue.”
Id. at 292
. We conclude
that it does not.
First, although the record does not contain direct evidence that the Texas
Legislature passed SB 14 with a racially invidious purpose, this does not mean
there is no evidence that supports a finding of discriminatory intent.
“[D]iscriminatory intent need not be proved by direct evidence.” Rogers v.
Lodge,
458 U.S. 613, 618
(1982); Brown,561 F.3d at 433
(“To find discriminatory intent, direct or indirect circumstantial evidence, including the normal inferences to be drawn from the foreseeability of defendant’s actions may be considered.” (citation omitted)). Instead, courts may consider both circumstantial and direct evidence of intent as may be available. Arlington Heights,429 U.S. at 266
.
In this day and age we rarely have legislators announcing an intent to
discriminate based upon race, whether in public speeches or private
correspondence. 19 To require direct evidence of intent would essentially give
19 In fact, in this case, there is evidence that the proponents of SB 14 were careful
about what they said and wrote about the purposes of SB 14, knowing it would be challenged
during the preclearance process under the Voting Rights Act. Senator Fraser, one of the
authors of SB 14, admitted during his deposition that he believed “that the public legislative
record would either go to the Department of Justice or a three-judge panel as part of the
21
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No. 14-41127
legislatures free reign to racially discriminate so long as they do not overtly
state discrimination as their purpose and so long as they proffer a seemingly
neutral reason for their actions. This approach would ignore the reality that
neutral reasons can and do mask racial intent, a fact we have recognized in
other contexts that allow for circumstantial evidence.
For example, in employment discrimination cases, we do not
automatically find for an employer who proffers a race-neutral reason for
terminating an employee; instead, the employee can show that this reason is
pretextual. See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 804
(1973) (establishing that where an employer has offered a race-neutral reason for an adverse employment action, the employee is entitled to show that the employer’s stated reason is in fact pretext); see, e.g., Evans v. City of Houston,246 F.3d 344
, 354–56 (5th Cir. 2001) (holding that a plaintiff had provided sufficient circumstantial evidence that an employer’s reasons for demoting her were pretextual to create a genuine dispute of material fact regarding whether she was wrongfully demoted and reversing the district court’s grant of summary judgment for the employer). As we were recently reminded in Foster v. Chatman,136 S. Ct. 1737
, 1751–52, 1754–55 (2016), people hide
discriminatory intent behind seemingly legitimate reasons. If Jane were fired
from an at-will job for being late once, we might conclude that firing was
legitimate, until we learned that Joe, who has the very same job as Jane, was
late numerous times with no penalty. Cf. Evans, 246 F.3d at 354–56. Context
[Voting Rights Act] Section 5 review process,” and that he was therefore “aware that
everything that [he] was saying was part of a public record.” The Deputy General Counsel
to the Lieutenant Governor, Bryan Hebert, testified that he sent an email “urg[ing] senators
to emphasize the detection and deterrence of fraud and protect[ing] public confidence in
elections” as “the goal” of SB 14, “to remind people what the point of the bill was” for their
speeches on the floor of the Texas Senate.
22
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No. 14-41127
matters. 20 With this in mind, we now address the circumstantial evidence that
could support a finding of discriminatory purpose such that the record does not
permit of only one resolution of the factual issue of intent. Pullman-Standard,
456 U.S. at 292
.
The record shows that drafters and proponents of SB 14 were aware of
the likely disproportionate effect of the law on minorities, and that they
nonetheless passed the bill without adopting a number of proposed
ameliorative measures that might have lessened this impact. For instance, the
Legislature was advised of the likely discriminatory impact by the Deputy
General Counsel to the Lieutenant Governor and by many legislators, and such
impact was acknowledged to be “common sense” by one of the chief proponents
of the legislation. 21 See Veasey v. Perry, 71 F. Supp. 3d at 657–58.
Additionally, although he was careful with his comments about the
legislation, one of the authors of SB 14, Senator Fraser, testified that he
“believe[s] today the Voting Rights Act has outlived its useful life.” When other
legislators asked Senator Fraser questions about the possible disparate impact
of SB 14, he simply replied “I am not advised.”
Id.
at 646–47. Another senator
admitted at his deposition that he and other proponents of SB 14 voted to table
20 Of course, employment discrimination cases are not directly supportive, but they
are analogous. One of the dissenting opinions points out that the intent of the Legislature
differs from that of an employer because a legislature’s intent is “a pastiche of each individual
representative’s views, mixed policies and motives.” Jones Dissenting Op. at 5 n.5. But while
each legislator casts his or her own vote, these votes are often cast in blocs and along party
lines. Recognition that legislatures, just as employers, may articulate pretextual reasons for
discriminatory actions is not a superficial equation, but rather a realistic acknowledgment.
21 Representative Todd Smith, a proponent of the legislation, stated that it was
“common sense” the law would have a disproportionate effect on minorities. Veasey v. Perry,
71 F. Supp. 3d at 657
. Similarly, Bryan Hebert, Deputy General Counsel in the Office of the Lieutenant Governor, acknowledged that the poor and minorities were most likely to be affected by SB 14.Id.
Without additional forms of identification, Hebert warned that SB 14 was unlikely to obtain (the now-defunct) preclearance under Section 5 of the Voting Rights Act.Id. at 658
.
23
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No. 14-41127
numerous amendments meant to expand the types of accepted IDs, expand the
operating hours of DPS stations issuing voter IDs, delay implementation of SB
14 until an impact study had been completed, and other ameliorative
measures. He and other proponents of SB 14 have largely refused to explain
the rejection of those amendments, both at the time and in subsequent
litigation.
Id.
The district court noted that this attitude “was out of character for sponsors of major bills.”Id. at 647
.
The district court also heard evidence that SB 14 is only tenuously
related to the legislature’s stated purpose of preventing voter fraud. For
example, the record shows that Texas has a history of justifying voter
suppression efforts such as the poll tax and literacy tests with the race-neutral
reason of promoting ballot integrity. See
id.
at 636 & n.24. Dr. Vernon Burton,
an expert in race relations, testified about the “history of official discrimination
in Texas voting.” He identified some devices Texas has used to deny minorities
the vote, including “the all[-]White primary, the secret ballot and the use of
illiteracy[,] . . . poll tax, re-registration and purging.” He testified as follows
regarding “the stated rationale” for each of these devices:
Q What, in your opinion, was the stated rationale for the
enactment of all[-]White primaries in Texas?
A The stated rationale was voter fraud.
Q What was the stated rationale, in your opinion, for the
use of secret ballot provisions in Texas?
A The stated rationale was to prevent voter fraud.
Q And what was the stated rationale, in your opinion, for
the use of the poll tax in Texas?
A The stated rationale by the State was to prevent voter
fraud.
Q And how about the stated rationale for the use in
Texas of re-registration requirements and voter purges?
A The stated rationale was voter fraud.
24
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No. 14-41127
Q Dr. Burton, in your expert opinion, did these devices
actually respond to sincere concerns or incidents –
incidences of voter fraud?
A No.
Here, too, there is evidence that could support a finding that the
Legislature’s race-neutral reason of ballot integrity offered by the State is
pretextual. This bill was subjected to radical departures from normal
procedures. Consideration of procedural departures is a difficult inquiry,
because on the one hand, “[d]epartures from the normal procedural
sequence . . . might afford evidence that improper purposes are playing a role.”
Arlington Heights,
429 U.S. at 267
. On the other hand, “objection[s] to typical
aspects of the legislative process in developing legislation,” such as increasing
the number of votes a law requires for passage, may not demonstrate an
invidious intent, standing alone. Cf. Operation Push, 932 F.2d at 408–09, 408
n.6. Yet, context matters, and evidence of procedural departures provides one
potential link in the circumstantial totality of evidence the district court must
consider.
In this case, for example, the procedural maneuvers employed by the
Texas Legislature and the State occurred, as the district court notes, only after
repeated attempts to pass voter identification bills were blocked through
countervailing procedural maneuvers. See Veasey v. Perry, 71 F. Supp. 3d at
645–46. At the same time, SB 14 was subject to numerous and radical
procedural departures that may lend credence to an inference of discriminatory
intent. See
id.
at 647–51. These included: (1) getting special permission to file
the bill under a low number reserved for the Lieutenant Governor’s legislative
priorities; (2) Governor Perry’s decision to designate the bill as emergency
legislation so that it could be considered during the first sixty days of the
legislative session; (3) suspending the two-thirds rule regarding the number of
25
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No. 14-41127
votes required to make SB 14 a “special order”; (4) allowing the bill to bypass
the ordinary committee process in the Texas House and Senate; (5) passing SB
14 with an unverified $2 million fiscal note despite the prohibition on doing so
in the 2011 legislative session due to a $27 million budget shortfall; (6) cutting
debate short to enable a three-day passage through the Senate; and (7) passing
resolutions to allow the conference committee to add provisions to SB 14,
contrary to the Legislature’s rules and normal practice. See
id.
at 647–53.
Such treatment was virtually unprecedented. 22
Texas is a huge state in land mass and population and the Legislature
faces great challenges in governing. The Texas Legislature meets for regular
sessions for less than five months out of every two years. TEX. CONST. art. III,
§ 24; TEX. GOV’T CODE § 301.001 (West 2013). 23 During the session, it must
pass a balanced budget that will govern until the next session, based on
projected revenue for the next two years. TEX. CONST. art. VIII, § 22; id. art.
III, § 49a. In recent years, the Legislature has faced many complex and
controversial issues. The district court noted that the 2011 legislative session
itself involved “critically important issues such as the $27 million budget
22 One of the dissenting opinions calls into question the rationale behind these
maneuvers and draws different interpretations and inferences from the evidence. However,
it is the exclusive province of the district court to engage in this fact finding. Pullman-
Standard, 456 U.S. at 291–92. We acknowledge that multiple inferences could reasonably
be drawn from the record evidence, but we must leave the drawing of those inferences to the
district court. Additionally, one of the dissenting opinions disagrees with reliance on
opposing legislators’ factual testimony about the unusual nature of the procedural
maneuvers utilized to pass SB 14. There is a clear difference between opposing legislators
testifying about their personal knowledge regarding the normal procedural sequence of
passing legislation and opposing legislators merely speculating about the motives of SB 14’s
proponents.
23The Texas Governor also has the power to call special sessions of the Legislature,
which are topically limited to the confines of the proclamation summoning the Legislature.
TEX. CONST. art. IV, § 8.
26
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shortfall and transportation funding,” none of which received “a select
committee or an exception from the two-thirds rule,” as did SB 14. Veasey v.
Perry,
71 F. Supp. 3d at 657
.
The Legislature is entitled to set whatever priorities it wishes. Yet, one
might expect that when the Legislature places a bill on an expedited schedule
and subjects it to such an extraordinary degree of procedural irregularities, as
was the case with SB 14, such a bill would address a problem of great
magnitude. Ballot integrity is undoubtedly a worthy goal. But the evidence
before the Legislature was that in-person voting, the only concern addressed
by SB 14, yielded only two convictions for in-person voter impersonation fraud
out of 20 million votes cast in the decade leading up to SB 14’s passage. 24 See
id. at 639
. The bill did nothing to combat mail-in ballot fraud, although record evidence shows that the potential and reality of fraud is much greater in the mail-in ballot context than with in-person voting. 25Id. at 641, 653
.
In the context of the many pressing matters of great importance to Texas
that did not result in these legislative irregularities, we cannot say that the
record leads to only one factual conclusion in this case. Pullman-Standard,
456 U.S. at 292
. We cannot say that district court had to simply accept that
legislators were really so concerned with this almost nonexistent problem.
Against a backdrop of warnings that SB 14 would have a disparate impact on
24Representative Fischer testified that the Legislature had access to data from the
2008 and 2010 elections when considering SB 14, which showed that “of the millions of votes
cast in both of those elections, there were perhaps four referrals for in person voter
impersonation” and that “one, if not two individuals . . . had been officially charged and may
have accepted responsibility for impersonation.”
25 This statement is not intended as a criticism of allowing mail-in ballots, which are
a vital means of enabling voting when it would otherwise be difficult or impossible for some
people to exercise their right to vote in person. It is simply an acknowledgement that the
evidence supporting the need for reform was minimal on the in-person voting side.
27
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No. 14-41127
minorities and would likely fail the (then extant) preclearance requirement,
amendment after amendment was rejected. Veasey v. Perry, 71 F. Supp. 3d at
650–52, 698, 701–02, 708–10. While cloaking themselves in the mantle of
following Indiana’s voter ID law, which had been upheld against a (different)
challenge in Crawford, the proponents of SB 14 took out all the ameliorative
provisions of the Indiana law. See, e.g.,
id.
at 651–52 (noting the Texas House stripped an indigency exception that had been added to SB 14 in the Texas Senate); cf. Frank v. Walker (Frank II),819 F.3d 384
, 386–87 (7th Cir. 2016)
(noting that an indigency exception may be necessary for voters who face “high
hurdles” to obtaining required photo identification and that the Indiana law
the Court considered in Crawford contained such an indigency exception). 26
This circumstantial evidence of discriminatory intent is augmented by
contemporary examples of State-sponsored discrimination in the record. For
26 One of the dissenting opinions claims that “the Indiana and Texas laws are not
meaningfully different.” Jones Dissenting Op. at 28 n.26. This ignores the district court’s
findings and the obvious differences between the two laws that affect the discriminatory
impact analysis. The district court explained the differences well:
Notably, while Defendants claim that SB 14 was modeled after the Indiana
law, the Indiana law is more generous to voters. Unlike SB 14, it permits the
use of any Indiana state-issued or federal ID and contains a nursing home
resident exemption. Furthermore, Indiana is more generous in its acceptance
of certain expired
ID.
Of particular relevance here, Indiana’s accommodation
of indigents, while requiring an additional trip to the county election office to
claim an exemption, does not require an indigent to actually obtain, or pay any
fees associated with, a qualified photo
ID.
This is significant, as demonstrated
in this case. There was also a reference in Crawford to a “greater public
awareness” of the law, which would prompt voters to secure qualified ID, as
opposed to a relative dearth of publicity and instruction in Texas.
Veasey v. Perry,
71 F. Supp. 3d at 679
(footnotes omitted) (citing IND. CODE § 3-5-2-40.5(a)(3)
(2014), IND. CODE § 3-11.7-5-2.5 (2011), and Crawford, 553 U.S. at 187–88 & n.6). The
district court specifically found that the Texas Legislature stripped an indigency exception
from SB 14, id. at 652, and that “[w]hen the legislature rejected student IDs, state
government employee IDs, and federal IDs, they rejected IDs that are disproportionately held
by African–Americans and Hispanics,” id. at 658. These differences are highly salient to the
discriminatory impact analysis.
28
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example, the record shows that as late as 1975, Texas attempted to suppress
minority voting through purging the voter rolls, after its former poll tax and
re-registration requirements were ruled unconstitutional. See Veasey v. Perry,
71 F. Supp. 3d at 635
. 27 It is notable as well that “[i]n every redistricting cycle since 1970, Texas has been found to have violated the [Voting rights Act] with racially gerrymandered districts.”Id.
at 636 & n.23 (collecting cases). 28
Furthermore, record evidence establishes that the Department of Justice
objected to at least one of Texas’s statewide redistricting plans for each period
between 1980 and the present, while Texas was covered by Section 5 of the
27 The law in question was enacted in 1975, after a previous re-registration
requirement was struck down as unconstitutional in the early 1970s. A three-judge court
eventually struck down this attempt at purging and re-registration after the Department of
Justice objected to the law when Texas became subject to preclearance. See generally Veasey
v. Perry,
71 F. Supp. 3d at 635
& n.18.
28 In LULAC, the Supreme Court also noted Texas’s “long, well-documented history
of discrimination that has touched upon the rights of African-Americans and Hispanics to
register, to vote, or to participate otherwise in the electoral process.” LULAC,
548 U.S. at 439
(quoting Vera v. Richards,861 F. Supp. 1304, 1317
(S.D. Tex. 1994)). The Court found
that Texas’s 2003 redistricting plan diluted the Hispanic vote in one district such that it
violated the Voting Rights Act. Although the Court did not find that Texas had acted with
discriminatory intent, it noted:
The changes to District 23 undermined the progress of a racial
group that has been subject to significant voting-related
discrimination and that was becoming increasingly politically
active and cohesive. . . . In essence the State took away the
Latinos’ opportunity because Latinos were about to exercise it.
This bears the mark of intentional discrimination that could give
rise to an equal protection violation. Even if we accept the
District Court’s finding that the State’s action was taken
primarily for political, not racial, reasons, the redrawing of the
district lines was damaging to the Latinos in District 23. The
State not only made fruitless the Latinos’ mobilization efforts
but also acted against those Latinos who were becoming most
politically active, dividing them with a district line through the
middle of Laredo.
Id.
at 439–40 (citations omitted).
29
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Voting Rights Act. Texas “is the only state with this consistent record of
objections to such statewide plans.” 29 Finally, the same Legislature that
passed SB 14 also passed two laws found to be passed with discriminatory
purpose. See Texas v. United States,
887 F. Supp. 2d 133
, 159–66 (D.D.C. 2012) (utilizing the Arlington Heights analysis and concluding the 2011 Texas Legislature created two redistricting plans with a discriminatory purpose), vacated and remanded on other grounds,133 S. Ct. 2885
(2013).
It is also probative that many rationales were given for a voter
identification law, which shifted as they were challenged or disproven by
opponents. Veasey v. Perry, 71 F. Supp. 3d at 653–59; see generally Foster, 136
S. Ct. at 1751–52, 1754–55 (reasoning that the fact that the government’s
“principal reasons” for its action “shifted over time . . . suggest[ed] that those
reasons may [have been] pretextual”). One of those rationales included
preventing noncitizens from voting, even though two forms of identification
29 One of the dissenting opinions quarrels with the district court’s findings on this
issue, but a three-judge panel reviewing Texas’s 1981 redistricting plan reached the same
conclusion:
In 1975, Congress extended the special pre-clearance provisions
of the Voting Rights Act of 1965 to Texas. This decision was
made on the basis of extensive hearings into the history of voting
discrimination in the state. Since the pre-clearance provisions
were extended to Texas in August of 1975, the Department of
Justice has lodged far more objections to governmental actions
affecting voting rights in Texas than any other covered state.
Between August 15, 1975, and September 18, 1981, the State
and its various political sub-divisions received 91 letters of
objection. In this same period, no other covered state had more
than 50 objections, and only three had more than thirty. The
election changes objected to by the Department of Justice
include the movement of polling places, proposed annexations,
alteration of district lines, and a state-wide purge of voter
registration lists.
Seamon v. Upham,
536 F. Supp. 931, 989
(E.D. Tex.) (citations omitted), vacated on other grounds,456 U.S. 37
(1982).
30
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approved under SB 14 are available to noncitizens. Veasey v. Perry,
71 F. Supp. 3d at 654
. It is likewise relevant that SB 14’s proponents refused to answer why they would not allow amendments to ameliorate the expected disparate impact of SB 14.Id.
at 646–47, 650–51.
Further supporting the district court’s finding is the fact that the
extraordinary measures accompanying the passage of SB 14 occurred in the
wake of a “seismic demographic shift,” as minority populations rapidly
increased in Texas, such that the district court found that the party currently
in power is “facing a declining voter base and can gain partisan advantage”
through a strict voter ID law. 30
Id. at 700
.
In sum, although some of the evidence on which the district court relied
was infirm, there remains evidence to support a finding that the cloak of ballot
integrity could be hiding a more invidious purpose. As we have explained, the
30 This partisan motive to suppress votes is not based on which party is in the
majority. When asked about the fact that most redistricting and discriminatory laws were
enacted under legislatures with a majority who were members of a different party than the
current majority, the Plaintiffs’ expert, Dr. Burton, agreed. He testified that this fact made
his analysis “stronger because it does not matter who is in charge of State politics or the
political parties in power in Texas, whether they’re Republicans, Democrats[,] or Martians,
every time that African–Americans have, in fact, been perceived to be increasing their ability
to vote and participate in the process there has been State legislation to either deny them the
vote or at least dilute the vote or make it much more difficult for them to participate on an
equal basis as Whites in the State of Texas.”
One of the dissenting opinions claims that we confuse partisanship for racism in our
analysis of whether the Legislature acted with a discriminatory intent. Intentions to achieve
partisan gain and to racially discriminate are not mutually exclusive. As another of the
dissenting opinions points out, acting to preserve legislative power in a partisan manner can
also be impermissibly discriminatory. Ketchum v. Byrne,
740 F.2d 1398, 1408
(7th Cir. 1984) (noting that “racial discrimination [may be and has been a] necessary accompaniment of [an] action taken to protect incumbencies”). In this case, the district court found that the party in power in the Texas Legislature faced “a declining voter base and [stood to] gain partisan advantage by suppressing the . . . votes of African-Americans and Latinos.” See Veasey v. Perry,71 F. Supp. 3d at 700
. Once again, the disagreement centers in part on the fact that some of the dissenting opinions would re-weigh the evidence and disregard the district court’s fact findings, which we are not entitled to do. See Pullman-Standard,456 U.S. at 292
.
31
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absence of direct evidence such as a “let’s discriminate” email cannot be and is
not dispositive. Because we do not know how much the evidence found infirm
weighed in the district court’s calculus, we cannot simply affirm the decision.
However, it is not an appellate court’s place to weigh evidence. See Price,
945 F.2d at 1317
(“[T]he appellate court may not substitute its judgment for the
district court’s.”). Thus, since there is more than one way to decide this case,
and the right court to make those findings is the district court, we must
remand. 31
We therefore remand this claim to the district court to “reexamin[e] . . .
the probative evidence underlying Plaintiffs’ discriminatory purpose claims
weighed against the contrary evidence, in accord with” the appropriate legal
standards we have described. Veasey, 796 F.3d at 503–04; cf. City of Richmond
31 Two of the dissenting opinions take issue with our decision on discriminatory
intent, in part because this issue can be fraught and divisive. One of the dissenting opinions
claims that Congress intended to prevent such divisiveness by ensuring that plaintiffs could
sue for discriminatory impact. Congress amended the Voting Rights Act in 1982 to make it
clear that plaintiffs could sue for discriminatory impact after Supreme Court precedent had
required the showing of a discriminatory purpose under Section 2. See S. Rep. No. 97-417,
at 15–16 (1982), as reprinted in 1982 U.S.C.C.A.N. 177, 192–93. Congress acted in the face
of this precedent to make it easier for minority plaintiffs to combat discriminatory laws—not
to make it more difficult. Congress did not eliminate plaintiffs’ ability to sue for purposeful
discrimination, so it remains our duty to consider these claims. See S. Rep. No. 97-417, at 17
(1982), as reprinted in 1982 U.S.C.C.A.N. 177, 194 & n.50 (emphasis in original) (citation
omitted) (noting that Section 2 was originally understood by Congress to prohibit “any kind
of practice . . . if its purpose or effect was to deny or abridge the right to vote on account of
race or color”). In this case, although we must tread carefully in assessing the motives of the
Legislature and the district court may very well agree with some of the points made by the
dissenting opinions, we must be mindful of our role in this process. We are not the court to
make factual findings in the first instance, and the record evidence could support more than
one conclusion. We must therefore remand for reweighing of the evidence, rather than
conducting that reweighing ourselves. See Pullman-Standard,
456 U.S. at 291
(“When an appellate court discerns that a district court has failed to make a finding because of an erroneous view of the law . . . there should be a remand for further proceedings to permit the trial court to make the missing findings . . . .” (emphasis added)); N. Miss. Commc’ns, Inc. v. Jones,951 F.2d 652
, 656–57 (5th Cir. 1992) (citing Pullman-Standard,456 U.S. at 291
)
(remanding a case, for the fourth time, for factual findings under the proper standard).
32
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No. 14-41127
v. United States,
422 U.S. 358, 378
(1975) (“[W]e should be confident of the
evidentiary record and the adequacy of the lower court’s consideration of it.”).
The parties have not asked to offer additional evidence, and we conclude that,
as to this issue, the district court should not take additional evidence. The
district court may, but is not required to, entertain additional oral argument
prior to issuing its new findings. The district court on remand should make its
discriminatory purpose findings based on the record we have, guided by this
opinion and the instructions we have given the district court about the legal
infirmities in its initial findings.
Time is short, though. The Supreme Court has, in effect, set a July 20
deadline for this court to act, after which it will entertain motions for relief.
Veasey v. Abbott,
136 S. Ct. at 1823
. Time is also needed to communicate those modifications to the wider public so as not to disrupt the election process. Indeed, among the findings made by the district court was that the public education campaign for SB 14 at the time of trial was “grossly insufficient.” Veasey v. Perry,71 F. Supp. 3d at 649
. Equally necessary in the time left before
early voting begins in late October is an adequate campaign to explain not only
SB 14 but also court-ordered amendments to voter identification rules. We are
mindful that future litigation and appeals to this court are also distinct
possibilities.
Additionally, we recognize the burden our majority opinion places on the
district court to implement a remedy for the discriminatory effect violation
with so little time, see infra Part II.B. Therefore, to avoid disruption of the
upcoming election, we rely on equitable principles in concluding that the
district court should first focus on fashioning interim relief for the
discriminatory effect violation in the months leading up to the November 2016
general election. The primary concern of this court and the district court
33
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No. 14-41127
should be to ensure that SB 14’s discriminatory effect is ameliorated as Section
2 requires in time for the November 2016 election, while respecting the policy
choices made by the Legislature in passing SB 14. See Perry v. Perez,
132 S. Ct. 934
, 940–41 (2012) (per curiam).
We instruct the district court to take the requisite time to reevaluate the
evidence and determine anew whether the Legislature acted with a
discriminatory intent in enacting SB 14. But it is unnecessary for the district
court to undertake this task until after the November 2016 election. See
Purcell v. Gonzalez,
549 U.S. 1
, 5–6 (2006) (election permitted to continue despite unresolved issues related to disenfranchisement); see also Reynolds v. Sims,377 U.S. 533, 585
(1964) (noting that a court may withhold immediate
relief so as not to disturb a forthcoming election). If the district court concludes
that SB 14 was passed with a discriminatory intent, the district court should
fashion an appropriate remedy in accord with its findings; provided, however,
that any remedy will not be made effective until after the November 2016
election.
B. Discriminatory Effect
Plaintiffs allege that SB 14 has a discriminatory effect in violation of
Section 2 of the Voting Rights Act, which proscribes any “voting qualification
or prerequisite to voting or standard, practice, or procedure . . . which results
in a denial or abridgement of the right of any citizen . . . to vote on account of
race or color.”
52 U.S.C. § 10301
(a). Unlike discrimination claims brought pursuant to the Fourteenth Amendment, Congress has clarified that violations of Section 2(a) can “be proved by showing discriminatory effect alone.” Thornburg v. Gingles,478 U.S. 30, 35
(1986); see also52 U.S.C. § 10301
(b). 32
32 Section 2 provides in full:
34
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In proscribing laws that have a discriminatory effect, Congress exercised its
authority pursuant to the Fifteenth Amendment, which states that “[t]he right
of citizens of the United States to vote shall not be denied or abridged by the
United States or by any state on account of race, color, or previous condition of
servitude,” and gives Congress the “power to enforce this article by appropriate
legislation.” U.S. CONST. amend. XV.
1. The Gingles Factors and Two-Part Framework
To prove that a law has a discriminatory effect under Section 2, Plaintiffs
must show not only that the challenged law imposes a burden on minorities,
but also that “a certain electoral law, practice, or structure interacts with social
and historical conditions to cause an inequality in the opportunities enjoyed by
black and white voters to elect their preferred representatives.” Gingles,
478 U.S. at 47
(emphasis added). While courts regularly utilize statistical analyses
to discern whether a law has a discriminatory impact, see, e.g., Operation Push,
(a) No voting qualification or prerequisite to voting or standard, practice, or
procedure shall be imposed or applied by any State or political subdivision in
a manner which results in a denial or abridgement of the right of any citizen
of the United States to vote on account of race or color, or in contravention of
the guarantees set forth in section 10303(f)(2) of this title, as provided in
subsection (b).
(b) A violation of subsection (a) is established if, based on the totality of
circumstances, it is shown that the political processes leading to nomination or
election in the State or political subdivision are not equally open to
participation by members of a class of citizens protected by subsection (a) in
that its members have less opportunity than other members of the electorate
to participate in the political process and to elect representatives of their
choice. The extent to which members of a protected class have been elected to
office in the State or political subdivision is one circumstance which may be
considered: Provided, That nothing in this section establishes a right to have
members of a protected class elected in numbers equal to their proportion in
the population.
52 U.S.C. § 10301
. We address more fully below how the factors adopted by the Supreme
Court in Gingles and the other standards we apply effectuate the language of Section 2.
35
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932 F.2d at 410–11, the Supreme Court has also endorsed factors (“the Gingles
factors”) enunciated by Congress to determine whether such an impact is a
product of current or historical conditions of discrimination such that it
violates Section 2, 33 Gingles, 478 U.S. at 44–45.
Although courts have often applied the Gingles factors to analyze claims
of vote dilution, 34 perhaps because of past preclearance requirements, there is
little authority on the proper test to determine whether the right to vote has
been denied or abridged on account of race. See Ohio State Conference of
NAACP v. Husted,
768 F.3d 524, 554
(6th Cir. 2014) (“Unsurprisingly, then, the case law has developed to suit the particular challenges of vote dilution claims. A clear test for Section 2 vote denial claims—generally used to refer to any claim that is not a vote dilution claim—has yet to emerge.”), vacated on other grounds by No. 14-3877,2014 WL 10384647
, at *1 (6th Cir. Oct. 1, 2014).
However, the Fourth and Sixth Circuits have adopted a two-part framework
that draws on the text of Section 2 and the Supreme Court’s guidance in
Gingles to analyze Section 2 claims.
(a) The Two-Part Framework
We now adopt the two-part framework employed by the Fourth and Sixth
Circuits to evaluate Section 2 “results” claims. The framework has two
elements:
[1] [T]he challenged standard, practice, or procedure must impose
a discriminatory burden on members of a protected class, meaning
that members of the protected class have less opportunity than
33 These are sometimes also called the “Senate Factors,” as they derive from the
Senate Report accompanying the 1982 amendments to the Voting Rights Act. See Gingles,
478 U.S. at 43–45.
34 See, e.g., League of United Latin Am. Citizens, Council No. 4434 v. Clements,
999 F.2d 831
, 850–51 (5th Cir. 1993) (en banc); Salas v. Sw. Tex. Junior Coll. Dist.,964 F.2d 1542, 1543, 1546
, 1551–56 (5th Cir. 1992).
36
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No. 14-41127
other members of the electorate to participate in the political
process and to elect representatives of their choice, [and]
[2] [T]hat burden must in part be caused by or linked to social and
historical conditions that have or currently produce discrimination
against members of the protected class.
League of Women Voters of N.C. v. North Carolina,
769 F.3d 224, 240
(4th Cir. 2014) (citations and internal quotation marks omitted), cert. denied,135 S. Ct. 1735
(2015); see also Husted,768 F.3d at 554
.
The first part of this two-part framework inquires about the nature of
the burden imposed and whether it creates a disparate effect in that “members
of the protected class have less opportunity than other members of the
electorate to participate in the political process and to elect representatives of
their choice”—this encompasses Section 2’s definition of what kinds of burdens
deny or abridge the right to vote. Compare
52 U.S.C. § 10301
(proscribing denial or abridgement of the right to vote and defining how a violation of Section 2 may be established), with League of Women Voters,769 F.3d at 240
(outlining the two-part test, using almost identical language to describe an
impermissible burden on the right to vote).
The second part of the two-part framework draws on the Supreme
Court’s guidance in Gingles. See League of Women Voters,
769 F.3d at 240
(quoting Gingles,478 U.S. at 47
); Husted,768 F.3d at 554
(quoting Gingles,478 U.S. at 47
). This second part of the framework provides the requisite causal link between the burden on voting rights and the fact that this burden affects minorities disparately because it interacts with social and historical conditions that have produced discrimination against minorities currently, in the past, or both. See Gingles,478 U.S. at 47
(“The essence of a § 2 claim is
that a certain electoral law, practice, or structure interacts with social and
37
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No. 14-41127
historical conditions to cause an inequality in the opportunities enjoyed by
black and white voters to elect their preferred representatives.”).
(b) The Gingles Factors
As did the Fourth and Sixth Circuits, we conclude that the Gingles
factors should be used to help determine whether there is a sufficient causal
link between the disparate burden imposed and social and historical conditions
produced by discrimination. 35 In other words, the Gingles factors may be used
to examine causality under the second part of the two-part analysis.
These factors include:
1. the extent of any history of official discrimination in the state or
political subdivision that touched the right of the members of the
minority group to register, to vote, or otherwise to participate in
the democratic process;
2. the extent to which voting in the elections of the state or political
subdivision is racially polarized;
3. the extent to which the state or political subdivision has used
unusually large election districts, majority vote requirements,
anti-single shot provisions, or other voting practices or procedures
that may enhance the opportunity for discrimination against the
minority group;
4. if there is a candidate slating process, whether the members of
the minority group have been denied access to that process;
5. the extent to which members of the minority group in the state
or political subdivision bear the effects of discrimination in such
areas as education, employment and health, which hinder their
ability to participate effectively in the political process;
6. whether political campaigns have been characterized by overt or
subtle racial appeals;
35 See League of Women Voters,
769 F.3d at 240, 245
(noting the Gingles factors are useful in examining both elements of the two-part test, especially the causal linkage between disparate impacts and conditions of discrimination); Husted,768 F.3d at 554
(noting the
Gingles factors form part of the totality of the circumstances analysis in examining a claim
of vote denial, “particularly with regard to the second element” of the two-part test).
38
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7. the extent to which members of the minority group have been
elected to public office in the jurisdiction.
Id.
at 36–37 (quoting S. Rep. No. 97-417, at 28–29 (1982), reprinted in 1982
U.S.C.C.A.N. 177, 206–07). Two additional considerations are:
[8.] whether there is a significant lack of responsiveness on the
part of elected officials to the particularized needs of the members
of the minority group[; and]
[9.] whether the policy underlying the state or political
subdivision’s use of such voting qualification, prerequisite to
voting, or standard, practice or procedure is tenuous.
Id.
These factors are not exclusive, and “there is no requirement that any particular number of factors be proved, or that a majority of them point one way or the other.”Id.
at 45 (quoting S. Rep. No. 97-417, at 29). Not every factor will be relevant in every case. These factors provide salient guidance from Congress and the Supreme Court on how to examine the current effects of past and current discrimination and how those effects interact with a challenged law. Id.; League of Women Voters,769 F.3d at 240, 245
; Husted,768 F.3d at 554
.
(c) This Analysis is Appropriate for Section 2 Effect Challenges
The State argues that the Gingles factors are inapposite in this context,
and that we should apply the two-part test as it was applied in the Seventh
Circuit in Frank v. Walker,
768 F.3d 744
, 754–55 (7th Cir. 2014), cert. denied,135 S. Ct. 1551
(2015). The State also argues that if we apply the Gingles
factors and two-part test and find a Section 2 violation in this case, all manner
of neutral election laws may be struck down. We disagree that the Gingles
factors are inapposite here, and we have good reasons to believe that the
State’s gloomy forecast is unsound.
39
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Use of the two-factor test and the Gingles factors limits Section 2
challenges to those that properly link the effects of past and current
discrimination with the racially disparate effects of the challenged law.
Applying the Gingles factors involves engaging in a multi-factor analysis,
under which no one factor has determinative weight. Gingles,
478 U.S. at 45
. Certainly, this analysis is fact dependent. Yet, in many similar contexts, we frequently employ multi-factor, totality-of-the-circumstances analyses that are highly fact bound. See, e.g., United States v. Batamula, ___ F.3d ___, No. 12- 20630,2016 WL 2342943
, at *3–4 (5th Cir. May 3, 2016) (en banc) (analyzing the totality of the circumstances to determine whether a defendant was prejudiced by a lack of competent advice during the guilty plea process); Cannata v. Catholic Diocese of Austin,700 F.3d 169
, 175–76 (5th Cir. 2012) (adopting a “totality-of-the-circumstances” analysis to determine whether an employee is a minister for purposes of the ministerial exception and abrogating the three-part test previously employed by this court, because the Supreme Court specifically rejected the use of a rigid, bright-line test for this issue); Stewart v. Miss. Transp. Comm’n,586 F.3d 321
, 330–31 (5th Cir. 2009)
(applying multi-factor tests to analyze whether a supervisor created a hostile
work environment or retaliated against an employee for reporting sexual
harassment, and in analyzing the last factor of the hostile work environment
test, looking to the totality of the circumstances to determine whether the
harassment was sufficiently severe and pervasive to alter employment
conditions). 36
36 See also In re Am. Int’l Refinery, Inc.,
676 F.3d 455, 462
(5th Cir. 2012) (rejecting a per se approach in favor of a “totality of the circumstances approach for deciding whether third-party payment of a retainer creates a disqualifying interest” in a bankruptcy case); United States v. Jenson,462 F.3d 399, 406
(5th Cir. 2006) (employing a multi-factor test to
determine whether consent to search was voluntary); Cleveland v. City of Elmendorf, 388
40
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We conclude that the two-part framework and Gingles factors together
serve as a sufficient and familiar way to limit courts’ interference with
“neutral” election laws to those that truly have a discriminatory impact under
Section 2 of the Voting Rights Act. Just because a test is fact driven and multi-
factored does not make it dangerously limitless in application.
The State argues that we should instead adopt a bright-line test as our
limiting principle. As the State would have it, so long as the State can
articulate a legitimate justification for its election law and some voters are able
to meet the requirements, there is no Section 2 violation. This argument
effectively nullifies the protections of the Voting Rights Act by giving states a
free pass to enact needlessly burdensome laws with impermissible racially
discriminatory impacts. The Voting Rights Act was enacted to prevent just
such invidious, subtle forms of discrimination. See Chisom v. Roemer,
501 U.S. 380, 406
(1991) (Scalia, J., dissenting); Allen v. State Bd. of Elections,393 U.S. 544
, 565–66 (1969). We think the factors applied to the facts are a proper limiting principle, and find this analysis faithful to the purposes of the Voting Rights Act.37 F.3d 522, 528
(5th Cir. 2004) (employing a totality-of-the-circumstances analysis to determine whether workers were volunteers for the purposes of the Fair Labor Standards Act); Brown & Root, Inc. v. NLRB,333 F.3d 628, 634
(5th Cir. 2003) (applying a totality-of- the-circumstances analysis to determine whether an employer made an unlawful threat related to union activity); United States v. Rodriguez-Rivas,151 F.3d 377
, 380–81 (5th Cir. 1998) (employing a totality-of-the-circumstances analysis to determine whether a Border Patrol agent had reasonable suspicion to stop a vehicle); United States v. Jon-T Chems., Inc.,768 F.2d 686, 694
(5th Cir. 1985) (looking “to the totality of the circumstances” in a “heavily fact-specific” inquiry regarding whether a subsidiary was the alter ego of its parent); Gonzales v. Beto,460 F.2d 314, 315
(5th Cir. 1972) (judging a lineup by the totality of the circumstances
to determine whether it violated due process).
37 These arguments also address the discomfort expressed by some of the dissenting
opinions with how the Gingles factors are applied differently in different cases. As we have
noted, the factors are highly fact dependent, as they must be to address different laws,
different states with varying histories of official discrimination, and different populations of
41
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In addition, two district courts have now applied the same analysis we
apply here to two different states’ laws and have found no discriminatory
results under Section 2. See, e.g., Lee v. Va. State Bd. of Elections, ___ F. Supp.
3d ____, No. 3:15CV357-HEH,
2016 WL 2946181, at *5
, *21–24 (E.D. Va. May 19, 2016); N.C. State Conference of the NAACP v. McCrory, ___ F. Supp. 3d ____, No. 1:13CV658,2016 WL 1650774
, at *73–76, *117, *122 (M.D.N.C. Apr. 25, 2016). These district court cases illustrate three principles that the State ignores in its arguments before us: (1) the analysis we employ effectively allows examination of differing fact patterns; (2) the State’s prediction of vast judicial interference with election laws is unfounded; and (3) district courts are well suited to conduct this fact-intensive analysis in the first instance, as the institutions we rely on for fact finding day in and day out. minority voters. Such has also been the case with the variances in decisions among the circuit courts to consider challenges to voter ID laws—our decision differs from those of other circuits in part because we are considering “the [s]trictest [l]aw in the [c]ountry” in a State with a fairly extensive history of official discrimination. See Veasey v. Perry,71 F. Supp. 3d at 642
; cf. Frank,768 F.3d at 746
(noting that Wisconsin’s law allowed the use of state ID cards, recent naturalization papers, tribal IDs, and signed college or university photo IDs); Common Cause/Georgia v. Billups,554 F.3d 1340, 1346
(11th Cir. 2009) (noting that Georgia’s law allowed the use of “a government employee identification card, a U.S. military identification card, or a tribal identification card”); Gonzalez v. Arizona, No. CV 06-1268-PHX,2006 WL 3627297
, at *6 (D. Ariz. Sept. 11, 2006) (describing a wide variety of acceptable forms of identification accepted at Arizona polls), aff’d,485 F.3d 1041
(9th Cir. 2007).
Even so, the fact-dependent nature of the Gingles factors does not mean that
“[v]irtually any voter regulation” may be struck down under our analysis. See Jones
Dissenting Op. at 52. Undoubtedly, challenges to election laws under Section 2 have
increased since Shelby County as states have enacted new laws and regulations that must be
challenged under Section 2, if at all, because these laws no longer face preclearance. That
does not mean that our analysis endangers neutral, nondiscriminatory election laws. As we
explain infra, district courts considering these challenges have come to different conclusions
based on varying fact patterns and election laws, not always with the result of striking down
election laws. Indeed, the United States abandoned its Section 2 discriminatory-effect
challenge to a voter ID law after the North Carolina legislature added a reasonable
impediment exception to the law. See N.C. State Conference of the NAACP v. McCrory, ___
F. Supp. 3d ____, No. 1:13CV658,
2016 WL 1650774, at *16
(M.D.N.C. Apr. 25, 2016).
42
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Furthermore, the Seventh Circuit’s approach in Frank is not
inconsistent with our own. The Seventh Circuit applied the two-part
framework only “[f]or the sake of argument,” did not apply the Gingles factors,
and expressed skepticism about the second step of the two-part analysis
“because it does not distinguish discrimination by the [government] defendants
from other persons’ discrimination.” Frank, 768 F.3d at 754–55. The Seventh
Circuit ultimately did not apply the second step of the two-part analysis
because it concluded that the plaintiffs failed to show that Wisconsin’s law
imposed a discriminatory burden that gave minority voters less opportunity to
participate in the political process at the first step of the analysis. Id. at 753,
755. Our record contains more particularized evidence of the discriminatory
burden imposed by SB 14 than did the record in Frank. 38
To the extent that the State argues causality may be established only
where there is a finding that state action caused the social and historical
conditions begetting discrimination, see Frank,
768 F.3d at 755
, we need not and do not decide that issue. Unlike in Frank, the district court in this case found both historical and contemporary examples of discrimination in both employment and education by the State of Texas, and it attributed SB 14’s disparate impact, in part, to the lasting effects of that State-sponsored discrimination. See Veasey v. Perry,71 F. Supp. 3d at 636
, 666–67. Thus, even
assuming this limitation from Frank applied, the evidence here meets that
test.
38 Furthermore, Wisconsin’s law, considered in Frank, allows for more forms of
identification than does SB 14. The district court found SB 14 to be the “[s]trictest [l]aw in
the [c]ountry” based on comparisons to other states’ voter ID laws and on the characterization
of SB 14 by one of its drafters. Veasey v. Perry, 71 F. Supp. 3d at 642–43, 701 & n.542.
43
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Finally, we reject the argument that Crawford mandates upholding SB
14 simply because the State expressed legitimate justifications for passing the
law. 39 Crawford contains no mention of Section 2 or the Voting Rights Act—
in that case, the Court only considered a First and Fourteenth Amendment
challenge, which involves a different analytical framework than what we use
for Section 2 claims. See generally
553 U.S. 181
. Additionally, the Court in Crawford analyzed only a facial challenge that had been adjudicated in the district court on summary judgment. Crawford, 553 U.S. at 187–88, 202–03. Here, we have a multitude of factual findings about Plaintiffs’ combined challenges, based on copious evidence from a bench trial and a record that spans more than one hundred thousand pages. See generally Veasey v. Perry,71 F. Supp. 3d 627
. Nevertheless, the State argues that Frank drew on
Crawford to conclude Wisconsin’s law did not impose a discriminatory burden
on voters because it appeared to be a generally-applicable election law.
Crawford clearly established that states have strong interests in
preventing voter fraud and increasing voter confidence by safeguarding the
integrity of elections.
553 U.S. at 191
, 194–97. We do not deny that the State
in this case may pursue those interests, nor that they are strong and valid
interests. However, that acknowledgement does not address the additional as-
39 One of the dissenting opinions relies heavily on Crawford in discussing both
discriminatory purpose and impact, essentially using Crawford’s endorsement of “preventing
voter fraud” as a talisman against objections that SB 14 does not appear even remotely well
tailored to suit its stated purposes. While we acknowledge the State’s legitimate interests in
this case, Crawford did not deal with either discriminatory intent or effect under Section 2.
In Crawford, the Court simply noted the weight of the State’s interests in the First and
Fourteenth Amendment balancing analysis, which differs from Section 2’s inquiries into
discriminatory motive and impact. As noted infra, even Judge Easterbrook and the Seventh
Circuit do not subscribe to the dissenting opinions’ views of Crawford’s or Frank’s holdings.
We likewise decline to read into Crawford the inapposite principle that the State may
invidiously discriminate or impermissibly disparately burden minorities so long as it
articulates “preventing voter fraud” as one purpose of a restrictive law.
44
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applied challenges Plaintiffs make in this case. See
id.
at 199–202. Even the Seventh Circuit has acknowledged that Crawford does not extend as far as the State argues, holding that Frank “did not decide that persons unable to get a photo ID with reasonable effort lack a serious grievance.” Frank II,819 F.3d at 386
. The Seventh Circuit in this later iteration of Frank did not consider a Section 2 challenge.Id.
at 385–86; see also Frank v. Walker,141 F. Supp. 3d 932
, 934–36 (E.D. Wis. 2015), vacated in part by Frank II,819 F.3d 384
. But the court noted that neither Crawford nor Frank foreclose the argument that an indigency exception may be necessary to prevent an unconstitutional burden on plaintiffs hindered from voting and obtaining photo IDs due to financial hardship and other factors like those exhibited by the Plaintiffs in this case. 40 Frank II, 819 F.3d at 386–87. The Seventh Circuit remanded the plaintiffs’ constitutional claims to the district court for further consideration of an as-applied challenge factually similar to the one Plaintiffs make in this case.Id.
at 385–86, 388.
40 Specifically, the Seventh Circuit noted the distinction between the general facial
challenge in Frank and the more particular as-applied challenge in Frank II:
The argument plaintiffs now present is different. Instead of saying that
inconvenience for some voters means that no one needs photo ID, plaintiffs
contend that high hurdles for some persons eligible to vote entitle those
particular persons to relief. Plaintiffs’ approach is potentially sound if even a
single person eligible to vote is unable to get acceptable photo ID with reasonable
effort. The right to vote is personal and is not defeated by the fact that 99% of
other people can secure the necessary credentials easily. Plaintiffs now accept
the propriety of requiring photo ID from persons who already have or can get
it with reasonable effort, while endeavoring to protect the voting rights of those
who encounter high hurdles. This is compatible with our opinion and mandate,
just as it is compatible with Crawford.
Frank II, 819 F.3d at 386–87 (emphasis added).
45
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Having established that the two-part analysis and Gingles factors are
appropriate standards for examining Plaintiffs’ Section 2 claim, 41 we evaluate
the district court’s discriminatory effect finding for clear error. See Operation
Push,
932 F.2d at 410
.
2. SB 14’s Disparate Impact
The district court found that 608,470 registered voters, or 4.5% of all
registered voters in Texas, lack SB 14
ID.
Veasey v. Perry,71 F. Supp. 3d at 659
. Of those, 534,512 voters did not qualify for a disability exemption from SB 14’s requirements.Id.
The latter figure, which was derived by comparing the Texas Election Management System with databases containing evidence of who possesses SB 14 ID, is known as the “No-Match List.” 42Id.
The district
court credited expert analysis and testimony by the individual Plaintiffs,
finding that SB 14 imposed excessive and disparate burdens on minority voters
41 One of the dissenting opinions proposes a different analysis to apply in Section 2
“results” cases. This opinion asserts that the test should be “simple and consistent,” meaning
that we should ignore the Supreme Court’s guidance in Gingles, Congress’s intention as
expressed in the Senate Factors, and, in practice, that we should require outright denial of
the right to vote to show a Section 2 violation. Jones Dissenting Op. at 53. Unfortunately,
assessing whether a law has a discriminatory impact is no simple matter and does not lend
itself to simple formulations. As we have shown, neither do many other fact-dependent tests
that we routinely apply in other contexts. We must undertake this difficult work, even if the
analytical frameworks best suited to the task are not as neat and tidy as we would prefer.
See Clements, 999 F.2d at 860 (noting that standards in Section 2 cases “must reflect the
central purpose of the Voting Rights Act and its intended liberality as well as the practical
difficulties of proof in the real world of trial,” especially since “greater certitude frequently
may be purchased only at the expense of other values”).
42 While the State’s expert criticized this calculation, he conceded that the
methodology used to derive this figure was well accepted. Nonetheless, he attempted to
challenge the No-Match List because 21,731 people on the No-Match List later voted in the
spring 2014 election. We accept the well-reasoned logic of the district court, which noted that
some of those 21,731 who voted may have done so by mail, which does not require SB 14 ID,
while others may have obtained SB 14 ID between the calculation of the No-Match List and
the spring 2014 election. Veasey v. Perry,
71 F. Supp. 3d at 660
.
46
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who lack SB 14 ID, including many Plaintiffs.
Id.
at 664–77. This evidence
supports the district court’s findings regarding SB 14’s disparate impact.
(a) Expert Analyses of SB 14’s Impact
Plaintiffs’ experts relied on four distinct methods of analysis to
determine the races of those on the No-Match List. 43
Id.
at 660–62. Those included: (1) ecological regression analysis, (2) homogenous block group analysis, (3) comparing the No-Match List to a Spanish Surname Voter Registration list, and (4) reliance on data provided by Catalist LLC, a company that compiles election data.Id. at 661
. The ecological regression analysis performed by Dr. Stephen Ansolabehere, an expert in American electoral politics and statistical methods in political science, which compared the No- Match List with census data, revealed that Hispanic registered voters and Black registered voters were respectively 195% and 305% more likely than their Anglo peers to lack SB 14ID.
Id.
According to Dr. Ansolabehere, this disparity is “statistically significant and ‘highly unlikely to have arisen by chance.’”Id.
The homogenous block group analysis yielded similar results, and other experts arrived at similar conclusions.Id.
at 661–62. These statistical analyses of the No-Match List were corroborated by a survey of over 2,300 eligible Texas voters, which concluded that Blacks were 1.78 times more likely than Whites, and Latinos 2.42 times more likely, to lack SB 14ID.
Id.
43 We recognize that the terms used to describe different racial or ethnic groups
inoffensively can themselves be the subject of dispute. Where we quote a witness or the
district court or where we discuss a witness’s testimony, we use their terms. For our part,
because we are a reviewing court, while recognizing the imperfections of these terms, we use
the terms used by the district court and the parties to refer to the three groups that were the
subject of the evidence in this case: Anglos (used to describe non-Hispanic Caucasians),
Hispanics, and African Americans. We also recognize that many Texans identify with more
than one racial or ethnic group and some Texans do not fall into any of these three groups;
we address the evidence and arguments as they were presented by the parties.
47
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at 662–63. Even the study performed by the State’s expert, which the district
court found suffered from “significant methodological oversights,” found that
4% of eligible White voters lacked SB 14 ID, compared to 5.3% of eligible Black
voters and 6.9% of eligible Hispanic voters.
Id.
at 663 & n.239. The district court thus credited the testimony and analyses of Plaintiffs’ three experts, each of which found that SB 14 disparately impacts African-American and Hispanic registered voters in Texas.Id. at 663
.
The district court likewise concluded that SB 14 disproportionately
impacts the poor, who are disproportionately minorities.
Id.
at 664–65. It credited expert testimony that 21.4% of eligible voters earning less than $20,000 per year lack SB 14 ID, compared to only 2.6% of voters earning between $100,000 and $150,000 per year.Id. at 664
. Lower income respondents were also more likely to lack the underlying documents to get an EIC.Id.
Dr. Jane Henrici, an anthropologist and professorial lecturer at
George Washington University, explained that:
[U]nreliable and irregular wage work and other income . . . affect
the cost of taking the time to locate and bring the requisite papers
and identity cards, travel to a processing site, wait through the
assessment, and get photo identifications. This is because most
job opportunities do not include paid sick or other paid leave;
taking off from work means lost income. Employed low-income
Texans not already in possession of such documents will struggle
to afford income loss from the unpaid time needed to get photo
identification.
Id.
(alteration in original).
Furthermore, the court found that the poor are less likely to avail
themselves of services that require ID, such as obtaining credit and other
financial services.
Id.
They are also less likely to own vehicles and are therefore more likely to rely on public transportation.Id. at 665
, 672–73. As
a result, the poor are less likely to have a driver’s license and face greater
48
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obstacles in obtaining photo identification.
Id.
Even obtaining an EIC poses an obstacle—the district court credited evidence that hundreds of thousands of voters face round-trip travel times of 90 minutes or more to the nearest location issuing EICs.Id. at 672
. Of eligible voters without access to a vehicle, a large percentage faced trips of three hours or more to obtain an EIC. 44Id.
(b) The State’s Challenges to the District Court’s Analysis
Although the State does not dispute the underlying factual findings, it
identifies several purported legal errors in the district court’s decision. We
address only the most relevant challenges at length herein. 45 We conclude that
44 Before the panel, the State attacked the entirety of the district court’s findings on
the grounds that the lower court did not distinguish between SB 14’s statutory provisions
and the Department of Public Safety’s implementing regulations. Although an issue raised
for the first time on appeal, like this one, is waived, Fruge v. Amerisure Mut. Ins. Co.,
663 F.3d 743, 747
(5th Cir. 2011), this argument likewise fails on the merits. The State’s proposed rule of law would contradict both Gingles’s demand that courts take a “functional view of the political process” in assessing Section 2 claims,478 U.S. at 45
, 48 n.15, and Section 2’s language itself, which proscribes voting practices “imposed or applied” such that they produce a discriminatory result,52 U.S.C. § 10301
(a). Moreover, we have previously affirmed a district court’s finding of discriminatory impact where the district court found the law delegated too much discretion to local officials. See Operation Push,932 F.2d at 404
.
45 Other challenges brought by the State include its argument that that the analyses
relied upon by the district court are unreliable because one source of data—the State’s voter
registration database—does not list the race or ethnicity of voters. The State contends that
Plaintiffs’ expert should have relied instead on data provided by the Department of Public
Safety (“DPS”). The district court rightly rejected this argument. The DPS database did not
allow registrants to identify themselves as “Hispanic” until May 2010. As the Texas Director
of Elections conceded, the number of Hispanic registered voters is “exponentially higher”
than the DPS records would suggest. We cannot fault the district court for refusing to rely
on inaccurate data, particularly in light of the State’s failure to maintain accurate data.
Additionally, the State suggests that conveying the disparity in ID possession in
comparative percentages is misleading. See Frank,
768 F.3d at 755
n.3 (stating that purveying data as a comparative percentage is a “misuse” that “produces a number of little relevance to the problem”). Instead, the State believes a less deceptive method is to state that 2% of Anglo, 5.9% of Hispanic, and 8.1% of African-American registered voters lack SB 14ID.
Even assuming the State is correct, conveying the disparities in the way the State
suggests does not change the analysis. The district court did not err in concluding that SB
14 disproportionately impacts Hispanic and African-American voters.
49
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the district court did not reversibly err in determining that SB 14 violates
Section 2 by disparately impacting minority voters.
First, the State disputes the propriety of using statistical analyses to
determine the racial composition of the No-Match List. Relying on Bartlett v.
Strickland,
556 U.S. 1
, 17–18 (2009), the State argues that the Supreme Court foreclosed using statistical analysis to determine the racial composition of a group of voters. That is a mischaracterization. Strickland cautions against adopting standards that require judges to make complicated, race-based predictions in redistricting cases, a concern that is not implicated here.Id.
It is well within the district court’s purview to assess whether minorities are disproportionately affected by a change in the law based on statistical analyses. See, e.g., Operation Push, 932 F.2d at 410–11. Using accepted statistical methodologies to estimate the racial composition of Texas voters does not require the type of race-based predictions that the Court referenced in Strickland. 46 Instead, this case is more akin to Operation Push, in which this court approved using surveys and “independent statistical tests” to project the impact on minorities of newly enacted voter registration procedures.Id.
Finally, the State argues for the first time on appeal that there is no disparate impact
where, as here, the gross number of Anglos without SB 14 ID—296,156 people—almost totals
the number of African-American, Hispanic, and “other” voters without SB 14 ID—312,314
people. Courts have never required the gross number of affected minority voters to exceed
the gross number of affected Anglo voters. See, e.g., League of Women Voters,
769 F.3d at 233
; see also Frank, 768 F.3d at 753–54 (comparing the percentage of minority voters without qualifying ID to the percentage of Anglos without such ID). We decline to address this argument raised for the first time on appeal. See Leverette v. Louisville Ladder Co.,183 F.3d 339
, 341–42 (5th Cir. 1999).
46These problematic predictions included inquiries like: “What types of candidates
have white and minority voters supported together in the past and will those trends
continue?” Strickland,
556 U.S. at 17
.
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Second, the State relies on Strickland to argue that the canon of
constitutional avoidance militates against requiring the State to ensure that
voters of various races possess voter ID in equal measure. See
556 U.S. at 18
. The district court’s discriminatory effect finding, if affirmed, would do no such thing, nor does Section 2 mandate the sort of remedy to which the State objects. Section 2 merely prohibits the State from imposing burdens on minority voters that would disproportionately abridge their ability to participate in the political process. Cf. Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc. (“Inclusive Communities”),135 S. Ct. 2507
, 2524 (2015) (“Remedial
orders in disparate-impact cases should concentrate on the elimination of the
offending practice . . . . If additional measures are adopted, courts should
strive to design them to eliminate racial disparities through race-neutral
means. Remedial orders that impose racial targets or quotas might raise more
difficult constitutional questions.” (citation omitted)).
Finally, before our full court, the State refined its argument that our
holding that SB 14 violates Section 2 would make Section 2 “invalid as no
longer congruent and proportional to the Fifteenth Amendment.” Relatedly,
the State and dissenting opinions characterize the district court’s findings as
resting solely on a statistical disparity in SB 14 ID rates, rather than any
concrete proof that voters were denied the right to vote. These arguments miss
the mark. In particular, the constitutionality argument by the State is short
sighted and ignores the history and text of the Fifteenth Amendment. If the
State had its way, the Fifteenth Amendment and Section 2 would only prohibit
outright denial of the right to vote and overtly purposeful discrimination. Yet,
both the Fifteenth Amendment and Section 2 also explicitly prohibit
abridgement of the right to vote. U.S. CONST. amend. XV;
52 U.S.C. § 10301
(a).
Application of the Gingles factors then determines whether any such
51
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abridgement is linked to social and historical conditions of discrimination such
that the abridgement has occurred “on account of race.” U.S. CONST. amend.
XV;
52 U.S.C. § 10301
(a). The standards we apply here, and our manner of
applying them, show that Section 2’s protections remain closely tied to the
power granted Congress by the Fifteenth Amendment. 47
Regarding the district court’s findings, they rest on far more than a
statistical disparity. The district court’s lengthy opinion goes through the
evidence supporting its findings in great detail, and we will not repeat all of
that evidence here for the sake of clarity and brevity. See Veasey v. Perry,
71 F. Supp. 3d at 665
, 667–77. However, a few examples show that the district
court relied on concrete evidence regarding the excessive burdens faced by
Plaintiffs in making its findings. This evidence personified the expert analysis
credited by the district court regarding SB 14’s discriminatory effect.
47 Additionally, we note that this court and many others have upheld the
constitutional validity of the Section 2 results test. See, e.g., Bush v. Vera, 517 U.S. at 990–
91 (O’Connor, J., concurring) (collecting cases assuming Section 2’s constitutionality); Jones,
727 F.2d at 373–74; United States v. Blaine Cty.,
363 F.3d 897
, 904–05 (9th Cir. 2004) (holding that the court remains bound to the Supreme Court’s prior affirmance of Section 2’s constitutionality and noting that “when the Supreme Court first announced the congruence- and-proportionality doctrine in City of Boerne v. Flores,521 U.S. 507
(1997), it twice pointed to the [Voting Rights Act] as the model for appropriate prophylactic legislation” and that the Supreme Court continues to rely on the Voting Rights Act as the baseline for congruent and proportional legislation); Johnson v. Hamrick,196 F.3d 1216
, 1219 n.3 (11th Cir. 1999) (reaffirming the constitutionality of Section 2). We previously held that “[c]ongressional power to adopt prophylactic measures to vindicate the purposes of the fourteenth and fifteenth Amendments is unquestioned” and “[o]n those occasions when the Court has stricken enactments as exceeding congressional power under the enforcement clauses of the fourteenth or fifteenth amendments, the congressional objective has usually deviated from the central purposes of those amendments—to ensure black equality.” Jones, 727 F.2d at 373–74 (citations omitted). Section 2, as applied here, does not deviate from that purpose, and Jones still binds us. Cf. Rodriguez de Quijas v. Shearson/Am. Express, Inc.,490 U.S. 477, 484
(1989).
52
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(c) Evidence of the Burdens Imposed on Plaintiffs by SB 14
The individual Plaintiffs testified that they faced many specific burdens
in attempting to obtain SB 14 ID or vote. The district court found that “[t]he
Plaintiffs [d]emonstrate[d] the [i]mpact” of SB 14 along several axes, including:
(1) the difficulty of obtaining an EIC and voting with the proper ID because of
Texas’s poor implementation of this program; (2) the cost of underlying
documents necessary to obtain an EIC or other SB 14 ID; (3) difficulties with
delayed, nonexistent, out-of-state, or amended birth certificates due to
nontraditional births and errors on birth certificates; (4) long distances and
other travel issues that made getting to a registrar and DPS office problematic
for many Plaintiffs; (5) a strict disability exemption 48; and (6) a burdensome
alternative of voting absentee. See
id.
Some of the Plaintiffs faced difficulties
along multiple axes in attempting to get SB 14 ID and vote in person.
48 SB 14 exempts certain disabled persons from its photo ID requirements, if they
submit an application to be exempted with written documentation, including: (1) “a
statement in a form prescribed by the secretary of state that the applicant does not have a
form of identification acceptable” under SB 14’s codified provision, TEX. ELEC. CODE
§ 63.0101, and (2) documentation from either “the United States Social Security
Administration evidencing the applicant has been determined to have a disability,” or
documentation “from the United States Department of Veterans Affairs evidencing the
applicant has a disability rating of at least 50 percent.” TEX. ELEC. CODE § 13.002(i). The
district court found that Plaintiffs Carrier, Espinoza, Mendez, and Taylor “may qualify for
SB 14’s disability exemption,” but that “[t]hese Plaintiffs were not made aware of this
exemption when they went to DPS or other relevant offices” and that “[a]s of January 15,
2014, only 18 voters were granted a disability exemption in Texas.” Veasey v. Perry,
71 F. Supp. 3d at 674
(citing TEX. ELEC. CODE § 13.002(i)). This fact evidences the increased
burden SB 14 places on Plaintiffs and others on the No-Match List because of the lack of
funding devoted to educating voters. Although this is not an overwhelming burden in and of
itself, the requirement and poor implementation provide one more obstacle for disabled
plaintiffs to clear in attempting to vote in person without SB 14 ID. In this case, some of the
Plaintiffs who could have used this exception were turned away at the polls and were never
made aware of it.
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First, the record evidence disproves the State’s claim that “the plaintiffs
have failed to identify a single individual who faces a substantial obstacle to
voting because of SB 14.” 49 For one thing, the district court found that multiple
Plaintiffs were turned away when they attempted to vote, and some of those
Plaintiffs were not offered provisional ballots to attempt to resolve the issue.
Id. at 668. One of those Plaintiffs, Floyd Carrier, “was well-known to the
election workers at his polling place, but was not offered a provisional ballot
and was not permitted to cast a vote.” Id. Floyd Carrier had the help of his
son in attempting to obtain SB 14 ID, but they faced an almost impossible
bureaucratic morass when they tried to get the required underlying
documentation. Due to these obstacles and the lack of training and education
about SB 14’s requirements, Floyd Carrier was completely prevented from
voting. See id. at 668 & n.268 (noting that throughout their efforts to obtain
underlying documentation and qualifying ID for Floyd Carrier, no one
informed the Carriers about the EIC).
Plaintiff Bates faced a similar problem when she reported to the polls, as
she was unaware that her existing ID was insufficient until she attempted to
vote in person. At that point, it was too late to cast an absentee ballot, and she
was not able to obtain SB 14 ID in time to cure her provisional ballot because
she could not afford to purchase her Mississippi birth certificate at its $42 cost
on her $321 fixed monthly income. Id. at 649 & n.115, 665. Plaintiff Gordon
Benjamin was not able to obtain an EIC at the DPS because he was unable to
get his Louisiana birth certificate for the hefty $81 fee online. Eventually, his
49 Before the panel that initially heard this case, the State made an even bolder
claim—that the Plaintiffs “failed to show that SB 14 prevented a single person from voting.”
This claim is demonstrably false, as the experiences of Plaintiffs Floyd Carrier and Sammie
Louise Bates show, see infra.
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sister was able to get his birth certificate in person on a trip through Louisiana,
but he was unable to make that trip before the 2013 elections. Id. at 671, 673.
Benjamin cast a provisional ballot that went uncured. Many more stories like
these proliferate in the pages of the district court’s opinion. Id. at 667–77.
Traveling to DPS offices to obtain EICs posed an additional obstacle for
many Plaintiffs. The district court found that four Plaintiffs rely almost
exclusively on public transportation. One of these Plaintiffs, Ken Gandy, faces
an hour-long, one-way trip to reach the nearest DPS office. See id. at 673.
Plaintiffs Estrada and Espinoza use family and friends for transportation, but
they each face “a 60-mile roundtrip ride to the nearest DPS station.” Id.
The State failed to contest any of this evidence, except to suggest that
these Plaintiffs could vote by mail. The district court did not clearly err in
finding that mail-in voting is not an acceptable substitute for in-person voting
in the circumstances presented by this case. 50 We are by no means criticizing
Texas for making mail-in voting available, as it represents an important bridge
for many who would otherwise have difficulty appearing in person. Instead,
we conclude that it is not the equivalent of in-person voting for those who are
able and want to vote in person. Mail-in voting involves a complex procedure
that cannot be done at the last minute. See id. at 688–90 (describing the
complex process of obtaining and submitting a mail-in ballot). 51 It also
deprives voters of the help they would normally receive in filling out ballots at
50 We do not opine on the effect, under Section 2, of other possible absentee balloting
arrangements, only on the inadequacy of mail-in voting in these circumstances to mitigate or
eliminate the discriminatory impact of SB 14.
51 For example, mail-in voting requires obtaining and submitting a correctly filled-
out and signed application to the early voting clerk in the voter’s county “on or before the
18th day before election day,” TEX. ELEC. CODE § 86.008(a), plus receiving an absentee ballot
by mail, filling out the ballot correctly, and ensuring the proper state party receives the ballot
on or before election day, id. §§ 86.004–.007, 86.008(b).
55
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the polls, which Plaintiff Naomi Eagleton cited as a reason why she prefers to
vote in person. Id. at 689.
Elderly plaintiffs may also face difficulties getting to their mailboxes,
like Plaintiff Carrier, who has to be driven to his mailbox because it is at the
local post office. Id. at 673. Seven of the Plaintiffs further testified they are
reluctant to vote by mail due to the increased risk of fraud because of people
who harvest mail-in ballots from the elderly. Id. at 676–77. The district court
credited expert testimony showing mail-in ballot fraud is a significant threat—
unlike in-person voter fraud. Id. at 639–41, 676. Finally, with mail-in voting,
voters lose the ability to account for last-minute developments, like candidates
dropping out of a primary race, or targeted mailers and other information
disseminated right before the election. Id. at 689. We discern no clear error
in the district court’s finding that mail-in voting for specific subsets of Texas
voters does not sufficiently mitigate the burdens imposed by SB 14.
The State further claims SB 14 has no disparate impact because the
State offers “free” EICs, and after SB 983, free underlying documentation to
Texas voters who were born in Texas. Yet, the record is replete with evidence
that the State devoted little funding or attention to educating voters about the
new voter ID requirements, resulting in many Plaintiffs lacking information
about these supposed accommodations until they were informed about them
during the course of this lawsuit. See, e.g., id. at 667–69, 676 (describing the
“insufficient” implementation of the EIC program, the fact that many Plaintiffs
did not know about the EIC or required voter ID until being turned away at
the polls, that one Plaintiff paid $22 for his birth certificate because he was not
told about the reduced-cost alternative then available, and other issues with
the implementation of SB 14). We find no clear error in the district court’s
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finding that the State’s lackluster educational efforts resulted in additional
burdens on Texas voters. 52 See, e.g., id. at 668.
We conclude that the district court did not clearly err in finding that SB
14 imposes significant and disparate burdens on the right to vote.
3. The Gingles Factors
We next consider the district court’s finding that SB 14 “produces a
discriminatory result that is actionable because [it] . . . interact[s] with social
and historical conditions in Texas to cause an inequality in the electoral
opportunities enjoyed by African–Americans and Hispanic voters.” Id. at 698.
The district court found Gingles factors 1, 2, 5, 6, 7, 8, and 9 probative. Id. at
697. Again, we conclude it was proper to utilize the Gingles factors to
determine whether conditions engendered by current and former state-
sponsored discrimination are sufficiently linked to the racial disparity in ID
possession under SB 14.
52 These lackluster efforts stand in stark contrast to those of other states whose voter
ID laws have thus far passed Section 2 scrutiny. See, e.g., N.C. State Conference of the
NAACP v. McCrory, ___ F. 3d ___, No. 1:13CV658,
2016 WL 1650774
, at *19–20 (M.D.N.C. Apr. 25, 2016) (cataloging the myriad educational efforts of North Carolina, including: education at three elections before the law went into effect; having voters sign a ledger if they lacked required ID; targeted mailings and outreach to those voters and over 200,000 others on North Carolina’s no-match list; pre-paid return mailers to obtain assistance for voters lacking required ID; and further updated advertisement, targeted mailing, and outreach after a reasonable impediment exception was enacted); Common Cause/Ga. v. Billups,504 F. Supp. 2d 1333
, 1378–79 (N.D. Ga. 2007) (holding that the state of Georgia’s educational efforts were crucial to whether Georgia’s voter ID law unduly burdened voters, that the court initially granted a preliminary injunction in part due to lack of notice and education, and finding that voters had since been educated after Georgia ran advertisements and directly contacted voters who potentially lacked valid IDs to inform them about how to get valid ID or vote absentee), vacated in part on other grounds,554 F.3d 1340
(11th Cir. 2009). Contrary
to the State’s hyperbolic predictions, these different outcomes show the importance of the
fact-bound Section 2 analysis we employ here. It has resulted in the approval of laws less
burdensome and less discriminatory in effect than SB 14, while it holds the State of Texas
accountable for the strictest and perhaps most poorly implemented voter ID law in the
country. See, e.g., Veasey v. Perry, 71 F. Supp. 3d at 667–69, 676 (noting the many problems
with the implementation of SB 14).
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(a) Gingles Factor 1: History of Official Discrimination
As part of this “searching practical evaluation of the past and present
reality,” Gingles,
478 U.S. at 45
(citation omitted), the district court found that Texas’s history of discrimination in voting acted in concert with SB 14 to limit minorities’ ability to participate in the political process. We repeat Shelby County’s admonishment that “history did not end in 1965,”133 S. Ct. at 2628
, and emphasize that contemporary examples of discrimination are more probative than historical examples. However, even long-ago acts of official discrimination give context to the analysis, 53 and the district court credited more contemporary examples of state-sponsored discrimination. Veasey v. Perry, 71 F. Supp. 3d at 635–36, 700. One contemporary example is the district court’s finding that “[i]n every redistricting cycle since 1970, Texas has been found to have violated the VRA with racially gerrymandered districts.”Id.
at
636 & n.23 (collecting cases). The district court further noted that, before it
was vacated along with preclearance by Shelby County, “a three-judge court
53 The district court cited many examples of Texas’s long history of state-sponsored
discrimination. See Veasey v. Perry, 71 F. Supp. 3d at 633–36. Less recent examples include
all-white primary elections that persisted from 1895 to 1944 despite the Supreme Court
attempting to curb the practice in 1927, literacy and secret ballot restrictions that persisted
until struck down in 1970, and poll taxes that were eventually struck down in 1966.
Id.
at
633–35. When the poll tax was made unconstitutional in 1964 by the Twenty-Fourth
Amendment, Texas attempted to separate federal and state ballots, so that the State could
still impose a poll tax for state ballots. That effort never succeeded because it was struck
down as unconstitutional after the Voting Rights Act was passed and applied to Texas.
Eventually, Texas ratified the Twenty-Fourth Amendment in 2009. In the wake of Texas’s
inability to retain poll taxes, the district court found that Texas passed a voter re-registration
requirement in 1966 that persisted in the form of purging the voter rolls after re-registration
was ruled unconstitutional in the early 1970s. Id. at 635. Ultimately, the purging practice
was enjoined under the preclearance portions of the Voting Rights Act. Id. While long-ago
history of discrimination is of limited probative value when considering whether the
Legislature acted with discriminatory intent, it cannot be ignored in the discriminatory effect
analysis, because even these seemingly remote instances of State-sponsored discrimination
continue to produce socioeconomic conditions that the district court found caused the racial
disparities in possession of SB 14 ID.
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had found that two of Texas’s 2011 redistricting plans violated the VRA.” Id.
at 636 n.23. In other words, the 2011 Texas Legislature was found to have
violated the Voting Rights Act by passing two redistricting plans that were
found to have a retrogressive or racially discriminatory impact in the same
legislative session that resulted in SB 14. 54
The district court found that these past instances of discrimination, all
the way through the 2011 legislative session that produced SB 14, were
relevant in part because each time, “the Texas Legislature relied on the
justification that its discriminatory measures were necessary to combat voter
fraud.” Id. at 636. The Texas Legislature relied on that same justification in
passing SB 14, even though the evidence showed that in-person voter fraud “is
very rare.” Id.
Even acknowledging that long-ago evidence of discrimination has less
force than more contemporary evidence under Shelby County, this factor and
other factors support the district court’s finding that SB 14 has a
discriminatory effect.
(b) Gingles Factor 2: Racially Polarized Voting
The district court relied primarily on the testimony of Dr. Barry Burden,
a political science professor, and Mr. George Korbel, an expert on voting rights,
54 Of course, the preclearance analysis differs from the Section 2 discriminatory effect
analysis. The State had the burden to show it should receive preclearance in Texas v. Holder,
whereas the Plaintiffs have the burden to show a discriminatory effect in the analysis we
employ here. Cf. Texas v. Holder,
888 F. Supp. 2d 113, 117
(D.D.C. 2012) (noting that the preclearance analysis places the burden on the State to prove that a law does not have “‘the effect of denying or abridging the right to vote on account of race’—i.e. . . . a retrogressive effect”), vacated and remanded on other grounds,133 S. Ct. 2886
(2013). One of the
dissenting opinions seeks to discredit this case because it was vacated after Shelby County
was decided. However, the opinion was not vacated on the merits and remains factually
relevant as a contemporary example of State-sponsored discrimination based on the finding
of a three-judge federal court.
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in concluding that racially polarized voting exists throughout Texas. The court
stated that “[r]acially polarized voting exists when the race or ethnicity of a
voter correlates with the voter’s candidate preference.” Id. at 637 (citing
Gingles,
478 U.S. at 53
n.21). For support, the district court noted that the gap between Anglo and Latino Republican support is between 30 and 40 percentage points, the Supreme Court has previously acknowledged the existence of racially polarized voting in Texas, and that in other litigation, Texas has conceded that racially polarized voting exists in 252 of its 254 counties.Id.
at
637–38. The State did not contest these findings before the district court. 55
(c) Gingles Factor 5: Effects of Past Discrimination
Next, the district court appraised “[t]he extent to which members of the
minority group . . . bear the effects of discrimination in areas such as
education, employment, and health, which hinder their ability to participate
effectively in the political process.” Veasey v. Perry,
71 F. Supp. 3d at 696
(citing Gingles,478 U.S. at 45
). The disparity in education, employment, and
health outcomes between Anglos, African Americans, and Hispanics is
manifest by the fact that the 29% of African Americans and 33% of Hispanics
in Texas live below the poverty line compared to 12% of Anglos. Id. at 665.
The unemployment rate for Anglos is also significantly lower. At trial, the
court found that 6.1% of Anglos were unemployed compared to 8.5% of
Hispanics and 12.8% of African Americans. Id. at 666. Furthermore, 91.7% of
Anglo 25-year-olds in Texas have graduated from high school, compared to
55 For the first time in its reply brief before the panel that initially heard this case,
the State argued that the district court erred by examining whether race and voting patterns
exhibited a correlated, rather than causal, link. We generally do not consider arguments
raised for the first time in a reply brief. See Baris v. Sulpicio Lines,
932 F.2d 1540
, 1546 n.9
(5th Cir. 1991). The State has not renewed this argument before our full court and we will
not consider it.
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85.4% of African Americans, and only 58.6% of Hispanics.
Id.
Anglos are also significantly more likely to have completed college—33.7% of Anglos hold a bachelor’s degree, compared to 19.2% of African Americans and 11.4% of Hispanics.Id.
Finally, the district court credited testimony that African Americans and Hispanics are more likely than Anglos to report being in poor health, and to lack health insurance.Id.
at 666–67.
The district court found that the history of State-sponsored
discrimination led to these disparities in education, employment, housing, and
transportation. See id. at 636. For example, according to Dr. Vernon Burton,
a professor with an expertise in race relations, past State-sponsored
employment discrimination and Texas’s maintenance of a “separate but equal”
education system both contributed to the unequal outcomes that presently
exist. Id. Although Brown v. Board of Education,
347 U.S. 483
(1954), mandated desegregated schools in 1954, Dr. Burton testified that Texas maintained segregated schools until roughly 1970. Veasey v. Perry,71 F. Supp. 3d at 666
& n.258. “As a result” of systemic discrimination and the disparities in education, employment, housing, and transportation, the district court found that “Hispanics and African–Americans make up a disproportionate number of people living in poverty, and thus have little real choice when it comes to spending money on anything that is not a necessity.”Id. at 636
(footnote omitted).
Importantly, the district court also found that “[t]hese socioeconomic
disparities have hindered the ability of African–Americans and Hispanics to
effectively participate in the political process. Dr. Ansolabehere testified that
these minorities register and turn[ ]out for elections at rates that lag far behind
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Anglo voters.” 56
Id. at 697
. This is significant because the inquiry in Section 2 cases is whether the vestiges of discrimination act in concert with the challenged law to impede minority participation in the political process. See League of United Latin Am. Citizens, Council No. 4434 v. Clements,999 F.2d 831
, 866–67 (5th Cir. 1993) (en banc). The district court concluded in the
affirmative, and the State does not contest these underlying factual findings
on appeal.
The district court ultimately found:
SB 14’s voter ID requirements interact with social and historical
conditions in Texas to cause an inequality in the electoral
opportunities enjoyed by African–Americans and Hispanic voters
as compared to Anglo voters. In other words, SB 14 does not
disproportionately impact African–Americans and Hispanics by
mere chance. Rather, it does so by its interaction with the vestiges
of past and current racial discrimination.
Veasey v. Perry,
71 F. Supp. 3d at 698
(emphasis added).
Again, the State does not dispute the underlying data or methodologies.
Instead, the State objects that the district court must have found some
evidence that SB 14 directly caused a reduction in turnout. The State insists
that the district court erred by failing to ask whether SB 14 causes a racial
voting disparity, rather than a disparity in voter ID possession. We have never
required such a showing. Section 2 asks whether a standard, practice, or
procedure results in “a denial or abridgement of the right . . . to vote.”
52 U.S.C. § 10301
(a). Abridgement is defined as “[t]he reduction or diminution of
56According to Dr. Ansolabehere’s expert report, 83 to 87% of Anglos of voting age and
84 to 88% of Anglo citizens of voting age in Texas are registered to vote, compared to 65 to
77% of Blacks of voting age and 75 to 80% of Black citizens of voting age, and 50 to 55% of
Hispanics of voting age and 75 to 80% of Hispanic citizens of voting age. Likewise, 41.8% of
Anglos voted in 2010 compared to 31.3% of Blacks and 22% of Hispanics. In 2012, 64.3% of
registered Anglos voted, compared to 45% of registered Blacks and 59.8% of registered
Hispanics.
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something,” Abridgement, BLACK’S LAW DICTIONARY (10th ed. 2014), while the
Voting Rights Act defines “vote” to include “all action necessary to make a vote
effective including, but not limited to, registration or other action required by
State law prerequisite to voting, casting a ballot, and having such ballot
counted.”
52 U.S.C. § 10101
(e). The district court’s finding that SB 14 abridges the right to vote by causing a racial disparity in voter ID possession falls comfortably within this definition. Our case law dictates the same outcome. See Operation Push,932 F.2d at 409, 413
(affirming the district court’s finding that a voter registration law violated Section 2 when it resulted in a 25% difference in the registration rates between eligible black and white voters); see also Chisom,501 U.S. at 408
(Scalia, J., dissenting) (“If, for example, a
county permitted voter registration for only three hours one day a week, and
that made it more difficult for blacks to register than whites, blacks would have
less opportunity ‘to participate in the political process’ than whites, and
[Section] 2 would therefore be violated . . . .”).
For the same reason, we decline to require a showing of lower turnout to
prove a Section 2 violation. An election law may keep some voters from going
to the polls, but in the same election, turnout by different voters might increase
for some other reason. See Veasey v. Perry,
71 F. Supp. 3d at 655
(discussing the effect of President Obama’s candidacy on voter turnout). That does not mean the voters kept away were any less disenfranchised. Requiring a showing of lower turnout also presents problems for pre-election challenges to voting laws, when no such data is yet available. More fundamentally, no authority supports requiring a showing of lower turnout, since abridgement of the right to vote is prohibited along with denial. U.S. CONST. amend. XV;52 U.S.C. § 10301
(a). Illuminating this last point is the State’s answer at oral
argument to a question about whether its proposed Section 2 effects test would
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prohibit literacy tests (if they were not otherwise specifically prohibited) from
being imposed as a condition for voting. 57 The State contended that literacy
tests “would almost certainly” be struck down under its proposed Section 2
effects test—but only if plaintiffs could show a resulting “denial of equal
opportunity,” i.e., a “voter turnout disparity.” 58
We decline to cripple the Voting Rights Act by using the State’s proposed
analysis. Doing so would unmoor the Voting Rights Act from its history and
decades of well-established interpretations about its protections. See Allen,
393 U.S. at 565
(“The Voting Rights Act was aimed at the subtle, as well as the
obvious, state regulations which have the effect of denying citizens their right
57 In full, the exchange between a member of our court at the en banc oral argument
and the State’s counsel follows:
JUDGE: “[I]f literacy tests weren’t separately prohibited, would a
literacy test be invalidated by your proposed equal treatment test?”
STATE’S COUNSEL: “Insofar as literacy tests, you know, first of all,
that would obviously be separately banned under —”
JUDGE: “Beside[s] the separate ban.”
STATE’S COUNSEL: “I–I believe insofar as you’re putting aside the
separate banning, and insofar as you’re putting aside a purpose claim, I think
you would still ask, ‘is this a denial of equal opportunity?’ And in that scenario
you’d have to show a prima facie case, and it would almost certainly, in the
relevant jurisdictions that we’re talking about, have been able to show a voter
turnout disparity, ah, particularly, you know, Operation Push v. Mabus would
have been another case like this where you had legacy systems in place, and
under those legacy systems, there would have been liability.”
58 One of the dissenting opinions would require a showing of decreased turnout to
prevail on a discriminatory effect claim. This argument is unsupported by case law and
ignores the following points. First, such an approach would foreclose the ability to file pre-
enforcement challenges, which are particularly important now that preclearance is not
required. As the concurring opinion acknowledges, the Supreme Court suggested in Shelby
County that courts could “block voting laws from going into effect” through injunctive relief
under Section 2. See Shelby Cty.,
133 S. Ct. at 2619
. Second, turnout itself does not answer
the question of a particular voter being denied access: turnout of certain people might
increase while turnout of others decreases, leaving overall turnout the same; yet, those
denied the right to vote are still disenfranchised. Third, this argument also conflates
abridgement and denial: in previous times, some people paid the poll tax or passed the
literacy test and therefore voted, but their rights were still abridged.
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to vote because of their race.”); Chisom,
501 U.S. at 406
(Scalia, J., dissenting)
(“This new ‘results’ criterion [from the 1982 amendments to the Voting Rights
Act] provides a powerful, albeit sometimes blunt, weapon with which to attack
even the most subtle forms of discrimination.”). Instead, we will adhere to the
Supreme Court’s instruction to examine challenged laws and practices in an
intensely fact-based and local totality-of-the-circumstances analysis. See
Gingles, 478 U.S. at 36–38, 79.
Thus, while evidence of decreased turnout is relevant, it is not required
to prove a Section 2 claim of vote denial or abridgement. In this case, the record
contains evidence that minority voters generally turn out in lower numbers
than non-minority voters and that State-sponsored discrimination created
socioeconomic disparities, which hinder minority voters’ general participation
in the political process. Accordingly, the district court did not clearly err in
determining that the impact of past and current discrimination on minorities
in Texas favors finding that SB 14 has a discriminatory effect under Section 2.
(d) Gingles Factor 6: Racial Appeals in Political Campaigns
While the existence of racial appeals in political campaigns is a factor
that may be indicative of a law’s disparate impact, see Gingles,
478 U.S. at 40
,
it is not highly probative here (and racial appeals seem to have been used by
both minorities and non-minorities). The district court found that such appeals
still exist in Texas and cited anecdotal evidence to support its finding. See
Veasey v. Perry, 71 F. Supp. 3d at 638–39. While we do not overturn the
underlying factual finding, we do not agree that such anecdotal evidence of
racial campaign appeals shows that SB 14 denies or abridges the right to vote.
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(e) Gingles Factor 7 and Factor 8: Minority Public Officials and
Responsiveness to Minority Needs
The extent to which minority candidates are elected to public office also
contextualizes the degree to which vestiges of discrimination continue to
reduce minority participation in the political process. See Gingles,
478 U.S. at 45
. The district court found that African Americans comprise 13.3% of the population in Texas, but only 1.7% of all Texas elected officials are African American. Veasey v. Perry,71 F. Supp. 3d at 638
. Similarly, Hispanics comprise 30.3% of the population but hold only 7.1% of all elected positions.Id.
Within the Texas Legislature, however, both groups fare better—African Americans hold 11.1% of seats in the Legislature while Hispanics hold 21.1% of seats.Id.
Again, the State does not contest these findings.Id.
The district court also found that Texas’s history of discrimination, coupled with SB 14’s effect on minorities in Texas and the Legislature’s response to ameliorative amendments, demonstrated a lack of responsiveness to minority needs by elected officials. See Gingles,478 U.S. at 45
. The evidence
supports the district court’s finding that “the legislature knew that minorities
would be most affected by the voter ID law.” Veasey v. Perry, 71 F. Supp. 3d at
657–58. For instance, Representative Todd Smith, a proponent of the
legislation, stated that it was “common sense” the law would have a
disproportionate effect on minorities. See id. at 657. Similarly, Bryan Hebert,
Deputy General Counsel in the Office of the Lieutenant Governor and author
of some of the provisions of SB 14, warned that SB 14 was unlikely to obtain
(the now-defunct) preclearance under the Voting Rights Act without further
forms of permissible ID. Id. at 658.
The district court noted that minority legislators and constituents
testified about the likely disparate impact of SB 14, yet their amendments to
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ameliorate that impact were rejected without explanation. See id. at 651, 658,
669, 698, 702. These included amendments to expand the forms of acceptable
ID to include student IDs, federal IDs, state-government employee IDs,
measures to fund education and training related to the law, and indigency
exceptions. 59 Id. at 658, 708–10. While this does not necessarily prove
improper intent on the part of those legislators, it nonetheless supports a
conclusion of lack of responsiveness. 60
(f) Gingles Factor 9: Tenuousness of Policies Underlying the Law
The district court concluded that the policies underlying SB 14’s passage
were only tenuously related to the State’s interests in preventing fraud and
increasing voter confidence in elections. We do not deny that the State’s
articulated objectives are legitimate state interests, as the Supreme Court has
made clear. See Crawford,
553 U.S. at 191
. Yet, the articulation of a legitimate interest is not a magic incantation a state can utter to avoid a finding of disparate impact. Even under the least searching standard of review we employ for these types of challenges, there cannot be a total disconnect between the State’s announced interests and the statute enacted. See St. Joseph Abbey v. Castille,712 F.3d 215
, 225–26 (5th Cir. 2013) (holding there was an
impermissible “disconnect” between the state’s expressed interests and the
challenged regulations and noting that “[t]he great deference due state
economic regulation does not demand judicial blindness to the history of a
challenged rule or the context of its adoption[,] nor does it require courts to
accept nonsensical explanations [from the state]”); cf. Inclusive Cmtys. Project,
59 The indigency exception was part of SB 14 when it passed the Senate, but was
stripped from the bill in the Texas House. Veasey v. Perry,
71 F. Supp. 3d at 652
.
60 This distinction is akin to the difference between negligence and intent.
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Inc. v. Tex. Dep’t of Hous. & Cmty. Affairs,
747 F.3d 275, 282
(5th Cir. 2014) (permitting a plaintiff to prevail on disparate impact claim under the Fair Housing Act where he “prov[es] that the [state’s] substantial, legitimate, nondiscriminatory interests supporting the challenged practice could be served by another practice that has a less discriminatory effect”), aff’d,135 S. Ct. 2507
(2015). The Court in Gingles and the Senate that passed the 1982 Amendments to the Voting Rights Act acknowledged as much by including tenuousness among the factors to be considered. See Gingles,478 U.S. at 45
.
Along with elected officials’ lack of responsiveness to minority needs, a tenuous
fit between the expressed policy and the provisions of the law bolsters the
conclusion that minorities are not able to equally participate in the political
process. Otherwise, elected officials would be more responsive regarding the
disparate impact of a law, and a law not meaningfully related to its expressed
purpose would be abandoned or ameliorated to avoid imposing a disparate
impact, given the preexisting socioeconomic and political disadvantages caused
by past and present discrimination.
The district court found that “the stated policies behind SB 14 are only
tenuously related to its provisions.” Veasey v. Perry,
71 F. Supp. 3d at 698
. The State is entitled to make policy choices about when and how it will address various priorities. But in this case, the provisions of SB 14 fail to correspond in any meaningful way to the legitimate interests the State claims to have been advancing through SB 14. For example, the Legislature claimed to model its law after those from Indiana, Georgia, Wisconsin, and other states that included many more forms of acceptable identification, plus indigency exceptions and far more extensive educational campaigns. Yet, the Legislature rejected many ameliorative amendments that would have brought SB 14 in line with those states’ voter ID laws. Seeid. at 643, 658
. The option of mail-
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in voting also showcases the dubious connection between the State’s interests
and SB 14’s provisions. In order to prevent voter fraud, the State has pushed
more vulnerable elderly voters away from in-person voting—a form of voting
with little proven incidence of fraud—and toward mail-in voting, which the
record shows is far more vulnerable to fraud, particularly among the elderly.
Id.
at 639–41, 653. In fact, SB 14 does nothing to address the far more prevalent issue of fraudulent absentee ballots.Id. at 641
.
The district court likewise found that the Legislature’s expressed
concerns about undocumented immigrants and noncitizens voting were
misplaced. It credited testimony that undocumented immigrants are unlikely
to vote as they try to avoid contact with government agents for fear of being
deported.
Id. at 654
. At least one Representative who voted for SB 14 conceded that he had no evidence to substantiate his fear of undocumented immigrants voting.Id.
Additionally, the district court found that SB 14 would not prevent noncitizens from voting, since noncitizens can legally obtain a Texas driver’s license or concealed handgun license, two forms of SB 14ID.
Id.
at 654–55.
The district court also found “no credible evidence” to support assertions
that voter turnout was low due to a lack of confidence in elections, that SB 14
would increase public confidence in elections, or that increased confidence
would boost voter turnout.
Id. at 655
. Two State Senators and the Director of the Elections Division at the Texas Secretary of State’s office were all unaware of anyone abstaining from voting out of concern for voter fraud, and the Director testified that implementing SB 14’s provisional ballot process might actually undermine voter confidence.Id.
Rather, the district court credited testimony that SB 14 would decrease voter turnout.Id.
at 655–56. According to a well-established formula
employed by political scientists to assess individuals’ likelihood of voting in an
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election, increasing the cost of voting decreases voter turnout—particularly
among low-income individuals, as they are most cost sensitive.
Id. at 656
. Further, the district court dismissed the argument that increased turnout during the 2008 presidential election was demonstrative of increased voter confidence in two states that had recently passed voter ID laws.Id. at 655
. Instead, it found that the increased turnout, which occurred nationwide, was due to President Obama’s candidacy.Id.
Finally, the court also found that public opinion polls—which found high levels of support for photo ID requirements—were not demonstrative that SB 14 itself would promote voter confidence.Id. at 656
. The district court discounted the polls because they did not evaluate whether voters supported SB 14 itself rather than some other form of voter ID law when weighed against SB 14’s exceedingly burdensome requirements and attendant effect on minority voters.Id.
(g) Discriminatory Effect Conclusion
In light of its findings regarding SB 14’s disparate impact and its
application of the Gingles factors, the district court held that SB 14 acted in
concert with current and historical conditions of discrimination to diminish
African Americans’ and Hispanics’ ability to participate in the political process.
Id.
at 695–98. We conclude that the district court performed the “intensely local appraisal” required by Gingles.478 U.S. at 79
. The district court clearly
delineated each step of its analysis, finding that:
(1) SB 14 specifically burdens Texans living in poverty, who are
less likely to possess qualified photo ID, are less able to get it, and
may not otherwise need it; (2) a disproportionate number of Texans
living in poverty are African–Americans and Hispanics; and
(3) African–Americans and Hispanics are more likely than Anglos
to be living in poverty because they continue to bear the
socioeconomic effects caused by decades of racial discrimination.
Veasey v. Perry,
71 F. Supp. 3d at 664
.
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The district court thoroughly evaluated the “totality of the
circumstances,” each finding was well-supported, and the State has failed to
contest many of the underlying factual findings. Furthermore, the district
court’s analysis comports with the Supreme Court’s recent instruction that “a
disparate-impact claim that relies on a statistical disparity must fail if the
plaintiff cannot point to a defendant’s policy or policies causing that
disparity.” 61 Inclusive Communities,
135 S. Ct. at 2523
. The district court here
acknowledged this principle and tethered its holding to two findings. First, the
court found a stark, racial disparity between those who possess or have access
to SB 14 ID, and those who do not. Second, it applied the Gingles factors to
conclude that SB 14 worked in concert with Texas’s legacy of state-sponsored
discrimination to bring about this disproportionate result.
We note that, because the district court’s findings link Texas’s state-
sponsored history of discrimination to the conditions affecting minority voters
61 Some of the dissenting opinions argue that the majority opinion holds the
Legislature “liable for racial disparities [it] did not create” by failing to show that the
statistical disparity in ID possession among different races is caused by a State policy, as
opposed to socioeconomic and historical conditions. In fact, as discussed above, the district
court found that SB 14 creates a racial disparity by requiring the use of certain IDs to vote
that minorities disproportionately lack. Certainly the passage of SB 14 did not cause fewer
minorities to possess certain IDs (like driver’s licenses or concealed handgun licenses).
Rather, the district court found that socioeconomic and historical conditions contributed to
this disparity in ID possession, which demonstrates why historical evidence of racism is
relevant to the Section 2 analysis. But SB 14 itself caused minorities to disproportionately
lack the documentation that is required to vote by dictating that the documents and IDs
required would be those that minorities disproportionately lack. We cannot ignore that in
passing SB 14, the Legislature carefully selected the types of IDs that would be required to
vote. In doing so, the Legislature selected IDs that minorities disproportionately do not
possess and excluded IDs that minorities possess in greater numbers, without providing
sufficient justification for those choices. The fact that this occurred on a landscape where
minorities are less likely to possess certain forms of ID or be able to obtain those IDs, at least
in part as a result of past instances of State-sponsored discrimination, does not absolve the
Legislature of responsibility. Accordingly, the district court’s conclusion that SB 14 created
racial disparities in the possession of IDs required to vote is supported by the record.
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in Texas today, we need not and do not decide whether proof of such state-
sponsored discrimination is required under the second part of this analysis. Cf.
Frank,
768 F.3d at 755
(reasoning that the discrimination affecting minorities should be linked to the state under the second part of the two-part analysis). The evidence in this record suffices to meet even this higher standard as enunciated in Frank.Id.
We conclude that the district court did not clearly err in determining that
SB 14 has a discriminatory effect on minorities’ voting rights in violation of
Section 2 of the Voting Rights Act. As discussed below, we remand for a
consideration of the appropriate remedy in light of the impending general
election.
III. First and Fourteenth Amendment Burden on the Right to Vote
Plaintiffs argue that SB 14 also unconstitutionally burdens their right
to vote, as forbidden by the First and Fourteenth Amendments. We decline to
decide this question, under the “well established principle governing the
prudent exercise of this [c]ourt’s jurisdiction that normally th[is c]ourt will not
decide a constitutional question if there is some other ground upon which to
dispose of the case.” Escambia Cty. v. McMillan,
466 U.S. 48, 51
(1984). Since the majority of the court affirms the district court’s determination that SB 14 has a discriminatory effect under Section 2 of the Voting Rights Act, Plaintiffs will be entitled to the same relief they could access if they prevailed on these First and Fourteenth Amendment claims. See Ketchum v. Byrne,740 F.2d 1398
, 1409–10 (7th Cir. 1984) (“There appears to be no difference in the
practical result or in the available remedy regardless of how the resulting
discrimination is characterized. We therefore shall not explicitly decide the
issue of a fourteenth amendment violation . . . .”); cf. Nw. Austin Mun. Util.
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Dist. No. One v. Holder,
557 U.S. 193
, 205–06 (2009). Put another way, the
rights and remedies are intertwined.
Accordingly, it is unnecessary for the en banc court to address this issue,
and we need not and do not decide whether SB 14 violates the First and
Fourteenth Amendments by placing an unconstitutional burden on the right
to vote. See Merced v. Kasson,
577 F.3d 578
, 586–87 (5th Cir. 2009); Jordan v. City of Greenwood,711 F.2d 667
, 668–70 (5th Cir. 1983) (quoting Spector Motor Serv., Inc. v. McLaughlin,323 U.S. 101, 105
(1944)). We therefore vacate the
district court’s determination on this issue and dismiss Plaintiffs’ First and
Fourteenth Amendment claims.
IV. Poll Tax
The Veasey Plaintiffs 62 originally alleged that SB 14 imposed a poll tax
in violation of the Fourteenth and Twenty-Fourth Amendments. After the
passage of SB 983, the Veasey Plaintiffs filed a Rule 28(j) Letter with this
court, stating that “SB14, as amended by SB983, is no longer a poll tax.” The
Veasey Plaintiffs nevertheless contend that “the poll tax issue is still alive”
because SB 14 operated as a poll tax for nearly two years, preventing Plaintiffs
and others from voting, and because it will take a “long time” for Texas voters
to “learn about and acquire free birth certificates.” Additionally, even without
the $2 to $3 fee, the Veasey Plaintiffs argue that the process of obtaining a free
birth certificate and a free EIC constitutes the kind of “burdensome alternative
process” that was struck down in Harman v. Forssenius,
380 U.S. 528
(1965).
Before our full court, the Veasey Plaintiffs continue to argue that we should
62 The Veasey Plaintiffs include: Marc Veasey, Jane Hamilton, Sergio Deleon, Floyd
Carrier, Anna Burns, Michael Montez Penny Pope, Oscar Ortiz, Koby Ozias, League of
United Latin American Citizens, John Mellor-Crummey, Ken Gandy, Gordon Benjamin, and
Evelyn Brickner. No other plaintiff joined in making this allegation.
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affirm the district court’s poll tax ruling.
To the extent that the Veasey Plaintiffs have not abandoned or conceded
this claim, 63 we conclude that SB 14, as amended by SB 983, does not impose
a poll tax. Although SB 983 was passed when this case was already on appeal,
we do not need to remand this issue to the district court for two reasons: (1) we
conclude that even before SB 983, SB 14 did not create a facial poll tax; and
(2) the issue of SB 983’s impact on the poll tax issue is a pure question of law
(at least as far as this facial challenge) that does not necessitate any
reweighing of evidence or consideration of new evidence.
The Veasey Plaintiffs previously facially challenged SB 14 with
respect to Texas voters born out of state (who are unaffected by SB 983’s
passage). Those voters could face fees in their state of birth to obtain
documentation required for an EIC. We conclude that SB 14 does not
facially impose a poll tax on those voters. Rather, SB 14 requires all Texas
voters to present valid identification at the polls, exercising the State’s
“legitimate interest in assessing the eligibility and qualifications of voters.”
Gonzalez v. Arizona,
677 F.3d 383
, 408–10 (9th Cir. 2012) (en banc); see also Harper v. Va. Bd. of Elections,383 U.S. 663, 668
(1966) (“But we must remember that the interest of the State, when it comes to voting, is limited to the power to fix qualifications.”). The indirect cost on voters born out of state does not constitute a poll tax. 64 Cf. Harman,380 U.S. at 541
(“Thus, in order
63 Cf. Ray v. United Parcel Serv.,
587 F. App’x 182, 186
(5th Cir. 2014) (noting plaintiff
“affirmatively abandoned [his Title VII] claim on appeal by conceding” that he had not
established pretext for racial discrimination).
64 Only one plaintiff, Ken Gandy, showed that he was unable to obtain an out-of-state
birth certificate due to its cost, see Veasey v. Perry,
71 F. Supp. 3d at 671
, but he was able to vote by mail,id. at 677
. Accordingly, Ken Gandy has suffered no injury that we must address
under the poll tax rubric, and we conclude that SB 14 is not a poll tax as applied to him.
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to demonstrate the invalidity of [the challenged law], it need only be shown
that it imposes a material requirement solely upon those who refuse to
surrender their constitutional right to vote in federal elections without paying
a poll tax.” (emphasis added)).
Likewise, SB 14 did not impose a poll tax on voters before the passage of
SB 983. It did not “impose[] a material requirement solely upon those who
refuse[d]” to pay a poll tax, as proscribed by the Twenty-Fourth Amendment.
Id.
at 541–42. Rather, it drew from the State’s power to set voter qualifications by requiring all voters to present a valid form of photo identification at the polls. See Gonzalez,677 F.3d at 408
. Under the Fourteenth Amendment, as the Supreme Court interpreted it in Harper, the Court has observed that a state invidiously discriminates when it imposes a cost to vote with a justification that is “irrelevant to the voter’s qualifications.” Crawford,553 U.S. at 189
. Although the questions presented to the Supreme Court in Crawford did not include whether Indiana’s voter ID law imposed a poll tax, the Court observed that a statute would be invalid under Harper’s Fourteenth- Amendment poll tax analysis “if the State required voters to pay a tax or a fee to obtain a new photo identification.”553 U.S. at 198
(emphasis added). The Court implied that requiring voters to obtain photo identification and charging a fee for the required underlying documentation would not qualify as a poll tax, and we similarly conclude that SB 14’s similar requirements did not operate as a poll tax. Seeid.
at 198 & n.17; see also Gonzalez, 677 F.3d at 407–10.
As amended by SB 983, Texas law no longer imposes any direct fee for
the underlying documentation required to obtain a qualifying voter
ID.
What
remain are the requirements that such voters travel to the local registrar or
county clerk’s office, gather and present certain forms of documentation to
receive the certified record, travel to the DPS office with that record, and
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present the certified record, along with two forms of supporting identification,
to receive an EIC. See 37 TEX. ADMIN. CODE § 15.182(3)–(4). The Veasey
Plaintiffs appear to argue in their Rule 28(j) Letter that these obligations make
SB 14 unconstitutional under Harman because they “requir[e] voters to follow
a burdensome alternative process to avoid paying a . . . poll tax.” 65
To the extent the Veasey Plaintiffs now attempt to analogize SB 14 and
SB 983 to the scheme in Harman, we reject that analogy. In Harman, the state
of Virginia forced those who would vote in federal elections to choose between
paying a poll tax and meeting a registration requirement before each election
year. 380 U.S. at 531–32. The Virginia constitution mandated that federal
voters file a certificate of residence within a specific date range, beginning on
October 1 of the year before the federal election at issue and ending on a date
six months before the date of the federal election. Id. at 532. On a notarized,
witnessed certificate, the federal voter had to submit a current address and
attest to: (1) being a resident of Virginia, both at the time of submission and
since the date of voter registration, and (2) an intent not to move from the city
or county of residence before the next general election. Id. Those voters who
chose to pay federal and state poll taxes were only required to file the
certificate of residence one time; those who did not pay the federal poll tax had
to file a new certificate of residence in the designated time frame before each
election year. Id.
Here, the State does not offer Texas voters a choice between paying a fee
and undergoing an onerous procedural process. Cf. id. at 540–41. All voters
65 This is somewhat in tension with the Veasey Plaintiffs’ initial briefing before the
panel, which claimed SB 14 was a poll tax based on the fee involved and conceded that
“incidental burdens on voters are not taxes,” including “[i]ncidental costs such as paying for
gas to drive to the polls.”
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must make a trip to the DPS, local registrar, county clerk, or other government
agency at some point to receive qualifying photo identification. This record
reveals that Plaintiffs and those who lack both SB 14 ID and underlying
documentation face more difficulty than many Texas voters in obtaining SB 14
ID. Undoubtedly, those who own vehicles, have flexible work schedules, and
already possess the required documentation can more easily meet these
procedural requirements than some of the Plaintiffs and others who lack these
resources. Plaintiffs and others similarly situated often struggle to gather the
required documentation, make travel arrangements and obtain time off from
work to travel to the county clerk or local registrar, and then to the DPS, all to
receive an EIC. These greater difficulties receive consideration in the Section 2
discriminatory effect analysis, but Supreme Court jurisprudence has not
equated these difficulties, standing alone, to a poll tax. See, e.g., Harper,
383 U.S. at 666
. In Harman, the Court specifically noted:
[I]t is important to emphasize that the question presented is not
whether it would be within a State’s power to abolish entirely the
poll tax and require all voters—state and federal—to file annually
a certificate of residence. Rather, the issue here is whether the
State of Virginia may constitutionally confront the federal voter
with a requirement that he either pay the customary poll taxes as
required for state elections or file a certificate of residence.
380 U.S. at 538
; see also Crawford, 553 U.S. at 198–99 (contrasting the
unconstitutionality of a requirement that voters “pay a tax or a fee to obtain a
new photo identification” with a requirement that voters without ID “travel to
the circuit court clerk’s office within 10 days [of the election] to execute the
required affidavit”). Additionally, whether the qualifying identification is a
driver’s license, passport, or EIC, voters need not undergo this process every
election year during a specific time frame six months prior to the election, as
was the case in Harman. Instead, the record indicates that an EIC remains
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valid for six years and must only be obtained sometime before an election.
In light of the recently-enacted SB 983, SB 14 does not impose an
unconstitutional poll tax under the Fourteenth or Twenty-Fourth
Amendments, nor did it impose a poll tax before SB 983’s enactment.
Accordingly, we vacate the district court’s judgment for the Veasey Plaintiffs
on their poll tax claim and render judgment in the State’s favor.
V. Remedy
After finding that SB 14 was enacted with a racially discriminatory
purpose, the district court fully enjoined SB 14’s implementation, with the
exception of several sections of the law that do not relate to photo
identification. See Veasey v. Perry,
71 F. Supp. 3d at 707
& n.583. That remedy is potentially broader than the one to which Plaintiffs would be entitled if only the discriminatory effect claim were considered. Compare Crawford,553 U.S. at 200, 203
(noting, in the Section 2 context, that “petitioners have not demonstrated that the proper remedy—even assuming an unjustified burden on some voters—would be to invalidate the entire statute”), with City of Richmond,422 U.S. at 378
(holding, in the discriminatory purpose context, that “[a]n official action . . . taken for the purpose of discriminating . . . on account of . . . race has no legitimacy at all”), and Washington v. Seattle Sch. Dist. No. 1,458 U.S. 457
, 465–66, 471, 487 (1982) (affirming the permanent
injunction of a statewide initiative because its provisions were “effectively
drawn for racial purposes” in violation of the Fourteenth Amendment). 66
As discussed above, we (and, correspondingly, the district court) are
66 We do not mean to suggest that a full injunction is never available as a remedy for
a discriminatory effect finding. However, given the severability clause in this statute and
the Supreme Court’s cautions to give deference to legislative determinations even when some
violation is found, the district court must examine a full range of potential remedies. Perez,
132 S. Ct. at 941
.
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acting within a short timeframe during which the district court will have to
fashion at least an interim remedy relevant to the November 2016 election.
Thus, we consider it prudent to provide some guidance regarding what would
constitute a properly tailored remedy.
“When devising a remedy to a [Section] 2 violation, the district court’s
‘first and foremost obligation . . . is to correct the Section 2 violation.’” Brown,
561 F.3d at 435
(quoting Bone Shirt v. Hazeltine,461 F.3d 1011, 1022
(8th Cir. 2006)). Yet, any remedy “should be sufficiently tailored to the circumstances giving rise to the [Section] 2 violation,”id.,
and to the extent possible, courts should respect a legislature’s policy objectives when crafting a remedy, see Perez, 132 S. Ct. at 940–44; see also Inclusive Communities,135 S. Ct. at 2524
(“Remedial orders in disparate-impact cases should concentrate on the elimination of the offending practice that ‘arbitrar[ily] . . . operate[s] invidiously to discriminate on the basis of rac[e].’” (citation omitted)). In the context of redistricting, 67 the Supreme Court has instructed that a legislature’s policy objectives may be discerned from the challenged legislation, and those policy choices should be respected, even when some aspect of the underlying law is unenforceable. Perez,132 S. Ct. at 941
.
When a statute contains a severability clause, courts must take special
care to attempt to honor a legislature’s policy choice to leave the statute intact.
See Ayotte v. Planned Parenthood of N. New England,
546 U.S. 320
, 330–31
(2006) (holding that lower courts should not have invalidated the entire
statute, but should have accounted for the legislature’s policy choices and the
67 We have held that Section 2 redistricting cases provide an appropriate source of
guidance for district courts attempting to craft remedies for Section 2 voter registration
violations. See Operation Push,
932 F.2d at 406
. Likewise, we take guidance here from
precedent regarding the proper remedies for Voting Rights Act violations.
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statute’s severability clause). In this case, SB 14’s severability clause makes
clear that the Legislature intended the photo identification system to be left
intact for all valid applications. 68 Also clearly underlying SB 14 is the concern
that a voter present proper identification that cannot easily be counterfeited
or used by another.
There are times when a court might give a state legislature an
opportunity to cure the infirmities in the statute before permitting the district
court to fashion a remedy. See Wise v. Lipscomb,
437 U.S. 535, 540
(1978)
(“When a federal court declares an existing apportionment scheme
unconstitutional, it is therefore, appropriate, whenever practicable, to afford a
reasonable opportunity for the legislature to meet constitutional requirements
by adopting a substitute measure rather than for the federal court to devise
and order into effect its own plan.” (emphasis added)); Operation Push, 932
F.2d at 404–06 (affirming the district court after it initially issued orders
requiring legislative action and then deferred to the Mississippi legislature’s
crafted remedy in accordance with those orders); Westwego Citizens for Better
68 The severability clause reads:
Every provision in this Act and every application of the provisions in
this Act are severable from each other. If any application of any
provision in this Act to any person or group of persons or circumstances
is found by a court to be invalid, the remainder of this Act and the
application of the Act’s provisions to all other persons and
circumstances may not be affected. All constitutionally valid
applications of this Act shall be severed from any applications that a
court finds to be invalid, leaving the valid applications in force, because
it is the legislature’s intent and priority that the valid applications be
allowed to stand alone. Even if a reviewing court finds a provision of
this Act invalid in a large or substantial fraction of relevant cases, the
remaining valid applications shall be severed and allowed to remain in
force.
TEX. ELEC. CODE § 64.012 historical note (West Supp. 2014) [Act of May 16, 2011, 82d Leg.,
R.S., ch. 123, § 25,
2011 Tex. Gen. Laws 619
, 625].
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Gov’t v. City of Westwego,
946 F.2d 1109, 1124
(5th Cir. 1991). Indeed, when feasible, our practice has been to “offer governing bodies the first pass at devising” remedies for Voting Rights Act violations. Brown,561 F.3d at 435
.
Based on suggestions in oral argument, appropriate amendments might
include a reasonable impediment or indigency exception similar to those
adopted, respectively, in North Carolina 69 or Indiana. 70 There may also be
some portion of prior state law that can reduce the discriminatory effect SB 14
has on minority voters without proper identification.
However, the Supreme Court and our court have acknowledged that
when it is not practicable to permit a legislative body this opportunity because
of an impending election, “it becomes the ‘unwelcome obligation’ of the federal
court to devise and impose a [remedy] pending later legislative action.” Wise,
437 U.S. at 540
(quoting Connor v. Finch,431 U.S. 407, 415
(1977)); see also Perez, 132 S. Ct. at 939–41 (implicitly approving of a district court’s decision to devise an interim redistricting plan rather than permit the legislature to impose a new plan in light of the fast-approaching election, but remanding to the district court to alter the plan to reflect the State’s policy judgments); Reynolds v. Sims,377 U.S. 533, 585
(1964) (“[O]nce a State’s legislative apportionment scheme has been found to be unconstitutional, it would be the unusual case in which a court would be justified in not taking appropriate action to insure that no further elections are conducted under the invalid plan.”); cf. Planned Parenthood Cincinatti Region v. Taft,444 F.3d 502, 517
(6th Cir. 2006) (remanding to the district court to fashion an appropriate
injunction and instructing the district court to account for legislative intent).
69 See N.C. GEN. STAT. §§ 163-82.8(e), 163-166.13(c)(2), 163-166.15, 163-182.1B (2015).
70 See IND. CODE § 3-11.7-5-2.5 (2015).
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Such circumstances are present here: the Texas Legislature is not
scheduled to be in session again until January 2017, and the November 2016
general election is fast approaching. It would be untenable to permit a law
with a discriminatory effect to remain in operation for that election. 71 In fact,
the State has not asked us to permit the Legislature to reconsider SB 14 before
the courts fashion a remedy and, despite filing multiple briefs with this court
in this case before and after the panel opinion, the State has never argued that
we must defer to the Legislature in the first instance. When counsel for the
State was asked about this issue during oral argument before our full court,
counsel responded that so long as it was a “tailored, specific remedy,” he
“believe[s] this court could fashion the remedy itself.” Upon further pressing
by a member of the court, the State noted it also would be proper for the state
legislature to act first, but repeated that this court could enact a tailored
remedy and did not advocate that this court could or should order the Texas
Governor to call a special session of the Legislature to craft a remedy to any
Section 2 violation.
Because of the Supreme Court’s order and the impending election, we
would necessarily have to give only limited time for any legislative fix. Since
the legislature is not scheduled to be in session this year, doing so would
require that the Texas Governor call a special session of the Legislature.
Accordingly, although legislative intercession may occur, it may not be feasible,
and we follow the Supreme Court’s guidance and permit the district court to
enter an order that remedies SB 14’s discriminatory effects. See Wise,
437 U.S. at 540
; see also Perez, 132 S. Ct. at 939–41.
71 As discussed above, the Supreme Court has also noted the time constraints of this
case in light of the scheduled elections in November of 2016. See Veasey v. Abbott,
136 S. Ct. at 1823
.
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In the event that the Governor calls a special session to address this
issue or should a later Legislature again address the issue of voter
identification, any new law would present a new circumstance not addressed
here. Such a new law may cure the deficiencies addressed in this opinion.
Neither our ruling here nor any ruling of the district court on remand should
prevent the Legislature from acting to ameliorate the issues raised in this
opinion. Any concerns about a new bill would be the subject of a new appeal
for another day.
On remand, the district court should refer to the policies underlying SB
14 in fashioning a remedy. We acknowledge that the record establishes that
the vast majority of eligible voters possess SB 14 ID, and we do not disturb SB
14’s effect on those voters—those who have SB 14 ID must show it to vote. The
remedy must be tailored to rectify only the discriminatory effect on those voters
who do not have SB 14 ID or are unable to reasonably obtain such
identification. See Frank II,
819 F.3d at 386
(rejecting that “because some
voters face undue difficulties in obtaining acceptable photo IDs, Wisconsin
could not require any voter to present a photo ID,” but accepting that “high
hurdles for some persons” might “entitle those particular persons to relief”).
Because the parties had an opportunity to present the evidence they desired
during the initial district court proceedings, the district court’s determinations
should be based on the current record, supplemented only by legislative action,
if any, that occurs after this remand and any oral argument permitted by the
district court.
Clearly, the Legislature wished to reduce the risk of in-person voter
fraud by strengthening the forms of identification presented for voting. Simply
reverting to the system in place before SB 14’s passage would not fully respect
these policy choices—it would allow voters to cast ballots after presenting less
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secure forms of identification like utility bills, bank statements, or paychecks.
See TEX. ELEC. CODE § 63.001(b) (West 2010). The panel opinion noted that
one possibility would be to reinstate voter registration cards as documents that
qualify as acceptable identification under the Texas Election Code for those
individuals who do not have and cannot reasonably obtain SB 14 ID. 72 During
oral argument, counsel for the State suggested that an indigency exception,
modeled after the exception in Indiana’s voter ID law, would be sufficient to
cure the discriminatory effect of SB 14. These are solutions the district court
may consider. Further, in fashioning a remedy, the district court should also
consider the necessity of educational and training efforts to ensure that both
voters and workers at polling places are capable of making use of whatever
remedy the district court selects.
In light of the impending election, we order the district court to file its
order regarding the proper discriminatory effect remedy as soon as possible.
The parties have expressed a willingness to work cooperatively with the
district court to provide a prompt resolution of this matter, and we urge them
to do so to avoid election eve uncertainties and emergencies.
VI. Conclusion
A. Discriminatory Purpose Claim
For the reasons stated above, we REVERSE the district court’s judgment
that SB 14 was passed with a racially discriminatory purpose and REMAND
for the district court to consider this claim in light of the guidance we have
provided in this opinion. As we have discussed, to avoid disruption of the
72 While the registration card does not contain a photo, it is a more secure document
than a bank statement or electric bill and, presumably, one not as easily obtained by another
person. It is sent in a nondiscriminatory fashion, free of charge, to each registered voter and
therefore avoids any cost issues.
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upcoming election, the district court should first focus on fashioning interim
relief for the discriminatory effect violation in the months leading up to the
November general election. The district court should then reevaluate the
evidence relevant to discriminatory intent and determine anew whether the
Legislature acted with a discriminatory intent in enacting SB 14. We
encourage the district court to wait until after the November 2016 election to
make this new determination. However, whether the district court waits to
make its findings until after the November election or does so sooner, we
instruct that, in light of the limited time prior to the November 2016
election, the district court shall not implement any remedy arising from such
reevaluation before this November’s election.
B. Discriminatory Effect Claim
We AFFIRM the district court’s finding that SB 14 violates Section 2 of
the Voting Rights Act through its discriminatory effects and REMAND for
consideration of the appropriate remedy consistent with this opinion as soon
as possible. The district court must ensure that any remedy enacted
ameliorates SB 14’s discriminatory effect, while respecting the Legislature’s
stated objective to safeguard the integrity of elections by requiring more secure
forms of voter identification.
C. Other Claims
We VACATE the district court’s holding that SB 14 is a poll tax under
the Fourteenth and Twenty-Fourth Amendments and RENDER judgment for
the State on this issue. We need not and do not address whether SB 14
unconstitutionally burdens the right to vote under the First and Fourteenth
Amendments; therefore, we VACATE the district court’s judgment on that
issue and DISMISS those claims.
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D. Interim Relief
In sum, the district court’s immediate responsibility is to ensure the
implementation of an interim remedy for SB 14’s discriminatory effect that
disrupts voter identification rules for the 2016 election season as little as
possible, yet eliminates the Section 2 discriminatory effect violation. The
district court will need to reexamine the discriminatory purpose claim in
accordance with the proper legal standards we have described, bearing in mind
the effect any interim legislative action taken with respect to SB 14 may have.
The district court’s task in this respect may await the November 8, 2016
general election.
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STEPHEN A. HIGGINSON, Circuit Judge, joined by GREGG COSTA, Circuit
Judge, concurring:
As the Supreme Court has reminded, though great progress has been
made, “voting discrimination still exists; no one doubts that,” and Section 2 of
the Voting Rights Act operates as a crucial “permanent, nationwide ban,”
Shelby County v. Holder,
133 S. Ct. 2612, 2619, 2631
(2013), on “even the most subtle forms of discrimination,” Chisom v. Roemer,501 U.S. 380, 406
(1991) (Scalia, J., dissenting). The courts, therefore, have a vital role in protecting the right “to participate equally in the political process.” Thornburg v. Gingles,478 U.S. 30, 80
(1986). Indeed, the Supreme Court has long cautioned that alleged discrimination against minorities calls for a “searching judicial inquiry,” United States v. Carolene Prods. Co.,304 U.S. 144
, 152 n.4 (1938), and with regard to Section 2, which mandates consideration of “the totality of circumstances,”52 U.S.C. § 10301
(b), Congress has made clear that, again in the Court’s words, “whether the political processes are ‘equally open’ depends upon a searching practical evaluation of the ‘past and present reality’” and “on a ‘functional’ view of the political process,” Gingles,478 U.S. at 45
(quoting S.
Rep. No. 97-417, at 30 (1982)).
After a nine-day trial that saw the testimony of over forty witnesses, half
of them experts, the district court concluded in a nearly one-hundred-and-fifty-
page opinion that SB 14—stricter than other voter ID laws that courts have
upheld, including those after which Texas’s law was ostensibly modeled 1—
violates Section 2 because it abridges minorities’ ability to participate equally
1 See Texas v. Holder,
888 F. Supp. 2d 113, 128
(D.D.C. 2012) (“SB 14 is far stricter than either Indiana’s or Georgia’s voter ID laws.”), vacated on other grounds,133 S. Ct. 2886
(2013); see also N. Car. State Conference of the NAACP v. McCrory, --- F. Supp. 3d ---,2016 WL 1650774, at *156
(M.D.N.C. Apr. 25, 2016) (“[North Carolina’s voter ID law] is also less
burdensome than the Texas ID requirement . . . .”).
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in the political process. As the majority opinion shows, the district court’s
Section 2 finding is a permissible view of a voluminous record informed by
extensive testimony. I join the majority opinion and write separately to
respond to arguments in the principal dissenting opinion because, contrary to
those arguments, I perceive that the majority opinion’s Section 2 analysis fits
comfortably with decisions of the Supreme Court, our court, and other circuits.
I.
As the majority opinion explains, our adoption of the Fourth and Sixth
Circuits’ two-part test places Section 2’s totality-of-circumstances inquiry in a
vote-denial framework that adheres to the text of Section 2,
52 U.S.C. § 10301
, and the Supreme Court’s guidance in Gingles,478 U.S. at 47
(“The essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.”). Use of the Gingles (or Senate) factors as nonexhaustive tools fleshing out this framework ensures the requisite causal linkage between past discrimination and a challenged voting practice’s disparate impact. Though some of the factors may have less relevance in vote-denial cases, others, particularly “Senate factors one, three, five, and nine,” aid in applying the Supreme Court’s admonition to discern the relevant social and historical effects of discrimination, and their interaction with a challenged law. Ohio State Conference of NAACP v. Husted,768 F.3d 524, 555
(6th Cir. 2014), vacated on other grounds,2014 WL 10384647
(6th Cir. 2014); see also Daniel P. Tokaji,
Applying Section 2 to the New Vote Denial, 50 HARV. C.R.-C.L. L. REV. 439,
481–82 (2015) (concluding that most of the Senate factors are relevant to vote-
denial claims, the fifth factor especially so). And case law belies the argument
that the Senate factors have no place outside the vote-dilution context.
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The Senate factors have roots in this court, see Zimmer v. McKeithen,
485 F.2d 1297, 1305
(5th Cir. 1973) (en banc), and we have not limited them to vote-dilution cases. To the contrary, in a vote-denial case in which we affirmed a finding that Mississippi’s voter registration process violated Section 2’s results test, we noted that the trial court applied those “‘objective factors’ to aid the courts in evaluating a § 2 claim.” Miss. State Chapter, Operation Push, Inc. v. Mabus,932 F.2d 400, 405
(5th Cir. 1991), aff’g Miss. State Chapter, Operation Push v. Allain,674 F. Supp. 1245
(N.D. Miss. 1987) (applying all nine factors). 2 And among our sister circuits, it is not just the Fourth and Sixth that have found the Senate factors significant in vote-denial cases. See Gonzalez v. Arizona,677 F.3d 383
, 405–06 (9th Cir. 2012) (en banc) (explaining that “courts should consider” the Senate factors in vote-denial cases); Johnson v. Governor of Fla.,405 F.3d 1214
, 1227 n.26 (11th Cir. 2005) (en banc) (stating in dictum that the factors apply to denial cases); Smith v. Salt River Proj. Agr. Improvement & Power Dist.,109 F.3d 586
, 596 n.8 (9th Cir. 1997) (rejecting
the argument that the Senate factors “apply only to ‘vote dilution’ claims”). We
do well to join this near-consensus of circuits in recognizing that the Senate
Report and Gingles provide guidance in the vote-denial context.
II.
Today’s outcome is also not inconsistent with Crawford v. Marion County
Election Board,
553 U.S. 181
(2008). Crawford did not even discuss the Voting
2 The Operation Push plaintiffs’ arguments mirror some in this case. Compare
Operation Push, 932 F.2d at 403 (citing the argument that African-Americans’ lack of access
to transportation and less flexible work schedules made it more difficult for them to comply
with the restrictive registration system), with Veasey v. Perry,
71 F. Supp. 3d 627
, 664–65
(S.D. Tex. 2014) (citing evidence that low-income Texans, who are disproportionately African-
American or Hispanic, not only disproportionately lack qualifying ID, but also have more
difficulty taking time off from work to secure ID and “live without vehicles for their own
transportation to get to ID-issuing offices”).
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Rights Act, and held only that the lower courts “correctly concluded that the
evidence in the record [was] not sufficient to support a facial attack on the
validity of the entire statute” under the constitutional Anderson-Burdick
framework. Id. at 189. Furthermore, as Justice Stevens took care to note, the
record there, unlike here, (1) did not quantify the voters without qualifying ID,
(2) provided no “concrete evidence of the burden imposed on voters who
currently lack photo identification,” and (3) said “virtually nothing about the
difficulties faced by . . . indigent voters.” Id. at 200–01. To be sure, Crawford
established that preventing voter fraud and safeguarding voter confidence are
legitimate and important state interests. Id. at 194–97. But it does not follow
that assertion of those interests immunizes a voter ID law from all challenges,
or that courts should be deterred from examining, as part of the Section 2
totality-of-circumstances inquiry, the tenuousness of the reasons given for the
law. See League of Women Voters of N. Car. v. North Carolina,
769 F.3d 224, 246
(4th Cir. 2014); cf. Husted,768 F.3d at 547
(“[Crawford] does not mean,
however, that the State can, by merely asserting an interest in preventing
voter fraud, establish that that interest outweighs a significant burden on
voters.”). 3
Nor does our decision contravene League of United Latin American
Citizens v. Clements,
999 F.2d 831
(5th Cir. 1993) (en banc). Texas highlights
our statements in that dilution case that socioeconomic disparities alone do not
3 To the extent the dissent argues that League of United Latin American Citizens v.
Clements forecloses consideration of the “tenuousness” factor, that case distinguished the
“weight” of the state’s interest “from the conventional Zimmer [Senate] factor of
tenuousness.”
999 F.2d 831
, 871 (5th Cir. 1993) (en banc). And as the Supreme Court recently reminded, that a state interest is legitimate does not necessarily mean courts should ignore evidence of whether a specific law advances that interest or imposes needless burdens. See Whole Women’s Health v. Hellerstedt, --- S. Ct. ---,2016 WL 3461560
, at *16 (2016).
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show “that minorities do not enjoy equal access to the political process,” and
that the Senate Report “did not dispense with proof that participation in the
political process is in fact depressed among minority citizens.” Id. at 866, 867.
From this, Texas reasons that the district court erred by finding a Section 2
violation without “proof that the challenged law affects voting behavior.” The
cited language in Clements, however, discussed Senate factors one and five:
“the extent of any history of official discrimination” affecting political
participation, and “the extent to which members of the minority group . . . bear
the effects of discrimination in such areas as education, employment and
health, which hinder their ability to participate effectively in the political
process.” Id. at 866 & n.30. In that context, we noted that the plaintiffs
“offered no evidence of reduced levels of black voter registration, lower turnout
among black voters, or any other factor tending to show that past
discrimination”—not the challenged law by itself—“ha[d] affected their ability
to participate in the political process” as required by “these Zimmer [Senate]
factors.” Id. at 867. Here, in sharp contrast, the district court heard such
evidence and found, in its discussion of factor five, that the effects of past
discrimination “have hindered the ability of African-Americans and Hispanics
to effectively participate in the political process”; indeed, one expert “testified
that these minorities register and turnout for elections at rates that lag far
behind Anglo voters.” Veasey v. Perry,
71 F. Supp. 3d 627, 697
(S.D. Tex. 2014).
The district court also heard from witnesses who were unable to vote
because they lacked the required forms of ID, from some who struggled to
obtain the required forms of ID or documents needed to obtain them, and from
others who help disadvantaged individuals obtain photo IDs and attested to
the difficulties those individuals face in doing so. See
id.
at 667–76. The court
further credited expert testimony that SB 14 “would almost certainly decrease
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voter turnout, particularly among minorities,” by imposing burdens that fall
more heavily on African-Americans and Hispanics.
Id.
at 655–56; see alsoid.
at 664–65. 4 The majority opinion rightly rejects Texas’s attempt to stretch Clements to require that plaintiffs wait until elections have occurred under the challenged law and then prove a direct impact on turnout. That would make impossible pre-enforcement Section 2 challenges, which the Supreme Court recently acknowledged. See Shelby County,133 S. Ct. at 2619
(“[I]njunctive
relief is available in appropriate [Section 2] cases to block voting laws from
going into effect.”). And as multiple experts testified, given the myriad
variables at play, it is extremely difficult to isolate the effect of a new law on
voter turnout. 5 Texas’s argument that the plaintiffs were required to prove a
direct impact on turnout is unsound.
4 The dissent cites law review articles for the propositions that studies collected
therein show no effect from voter ID laws on turnout, or even show increased turnout. Those
collected studies, which mostly date from 2009 and earlier, did not involve SB 14 and do not
make the district court’s acceptance of expert testimony that Texas’s law likely will depress
turnout clearly erroneous. In any event, scholarship on the effects of voter ID laws is far
from uniform. See, e.g., Zoltan Hajnal, et al., Voter Identification Laws and the Suppression
of Minority Votes, at 15 (February 2016),
http://pages.ucsd.edu/~zhajnal/page5/documents/voterIDhajnaletal.pdf (“For Latinos,
Blacks, and multi-racial Americans there are strong signs that strict photo identification
laws decrease turnout.”); Bill Hobby, et al., The Texas Voter ID Law and the 2014 Election: A
Study of Texas’s 23rd Congressional District, at 13 (August 2015),
https://bakerinstitute.org/media/files/files/e0029eb8/Politics-VoterID-Jones-080615.pdf
(concluding that Hispanic non-voters in one Texas congressional district “were significantly
more likely than Anglo non-voters to strongly agree or agree that a lack of photo ID was a
reason that they did not cast a ballot in the 2014 general election”); Michael D. Gilbert, The
Problem of Voter Fraud, 115 COLUM. L. REV. 739, 749 & n.55 (2015) (“Other studies suggest
voter ID laws do depress votes.” (collecting studies)).
5 Scholars have made the same point. See Tokaji, supra, at 475–76 (“Existing
empirical methods are simply not up to the task of establishing the effect of a particular
practice on turnout, let alone on turnout by particular subgroups, with any degree of
precision.”); Samuel Issacharoff, Ballot Bedlam, 64 DUKE L.J. 1363, 1383 (2015) (“There has
not been enough time to test the observations against normal fluctuations in turnout . . . and
other confounding political factors.”); Michael J. Pitts, Empirically Measuring the Impact of
Photo ID Over Time and Its Impact on Women, 48 IND. L. REV. 605, 606 (2015) (“[I]t can be
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It is also mistaken to suggest that the majority opinion conflicts with the
Ninth Circuit’s decision in Gonzalez,
677 F.3d at 383
. That court, after citing the Senate factors with approval and emphasizing the deference owed to a district court’s factual Section 2 determinations, affirmed a finding that the plaintiff had failed to establish the disparate impact of a voter ID law where, among other things, the district court rejected as unreliable the plaintiff’s expert statistical analysis and the record included no evidence that Hispanics were even less likely to possess qualifyingID.
Id.
at 406–07 & n.33. The law at issue was also much less strict, requiring a voter to present at the polls either (A) one of a broader range of photo IDs or (B) two non-photo documents showing the voter’s name and address, such as a utility bill, bank statement, or voter registration card. Gonzalez v. Arizona, No. CV 06-1268-PHX,2006 WL 3627297
, at *1, *6 (D. Ariz. Sept. 11, 2006). Even so, two judges wrote separately to stress that the court’s holding was based on “the current record,” and that “[a] different record in a future case could produce a different outcome.” Gonzalez,677 F.3d at 442
(Berzon, J., concurring). 6
The Ninth Circuit of course said that “proof of ‘causal connection between
the challenged voting practice and a prohibited discriminatory result’ is
crucial” to a Section 2 challenge.
Id. at 405
(majority opinion) (quoting Smith,
109 F.3d at 595). But the district court here found that the record established
that causal connection. The trial judge found that SB 14 makes voting
relatively more difficult for minorities, and without ameliorative measures will
difficult to determine the amount of actual disenfranchisement caused by photo identification
laws.”); Gilbert, supra, at 750 (“Gathering relevant data and designing conclusive tests
presents many challenges.”).
6 The district judge, contrastingly to this case, noted that the record did not contain
“adequate evidence on any of [the Senate] factors to enable an appropriate evaluation.”
Gonzalez,
2006 WL 3627297
, at *8.
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likely disproportionately suppress minority voting, by conditioning the right to
vote on the possession of documents that, because of the effects of past
discrimination, are harder for minority voters to obtain. Such interaction
between present-day law and the effects of past discrimination is what
Congress intended to combat. See Gingles,
478 U.S. at 69
(“Congress intended that the Voting Rights Act eradicate inequalities in political opportunities that exist due to the vestigial effects of past purposeful discrimination.”); see alsoid.
at 44 n.9 (“[T]he purpose of the Voting Rights Act was ‘not only to correct
an active history of discrimination, . . . but also to deal with the accumulation
of discrimination.’” (quoting S. Rep. No. 97-417, at 5)).
For this reason among others, we should not be guided by Frank v.
Walker,
768 F.3d 744
(7th Cir. 2014). In that case, Judge Easterbrook—who did not mention the applicable clear-error standard of review—overlooked many of the district court’s factual findings. See Frank v. Walker,773 F.3d 783
, 792–93, 796–97 (7th Cir. 2014) (Posner, J., dissenting from denial of
rehearing en banc); Tokaji, supra, at 460. Questioning other circuits’
approaches to vote-denial cases without offering a clear alternative, Judge
Easterbrook went on to uphold a different voter ID law on the rationales that
the law did not facially “draw any line by race,” and that the plaintiffs had not
“show[n] a ‘denial’ of anything by Wisconsin, as § 2(a) requires” because the
state had not directly caused minorities to be less likely or able to own
qualifying IDs. Frank, 768 F.3d at 753. Ultimately, the Seventh Circuit read
Section 2 as only “an equal-treatment requirement,” and rejected the plaintiffs’
challenge “because in Wisconsin everyone has the same opportunity to get a
qualifying photo ID.” Id. at 754, 755.
This reasoning ignores that Section 2 prohibits voting procedures
“imposed or applied . . . in a manner which results in a denial or abridgement
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of the right . . . to vote.”
52 U.S.C. § 10301
(a) (emphasis added). Indeed, the opinion does not mention “abridgement” aside from a single quotation of the statute. Judge Easterbrook’s “equal-treatment” gloss—which he did not explain aside from saying that is “how [the statute] reads,” Frank, 768 F.3d at 754—is puzzling because it is undisputed that, in response to a judicial ruling that Section 2 plaintiffs had to prove discriminatory intent, Congress revised the statute “to make clear that a violation could be proved by showing discriminatory effect alone,” Gingles,478 U.S. at 35
; cf. Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc.,135 S. Ct. 2507
, 2513 (2015) (explaining that “disparate-treatment” plaintiffs must show a discriminatory intent or motive). And if Section 2 requires only equal treatment, or if a Section 2 burden is cognizable only if it is impossible for some minority voters to comply with the challenged law, Justice Scalia must have mistakenly stated that Section 2 would be violated if “a county permitted voter registration for only three hours one day a week, and that made it more difficult for blacks to register than whites.” Chisom,501 U.S. at 408
(Scalia J., dissenting). After
all, ignoring disparities due to past discrimination, that law would give
everyone the “same opportunity” to register.
Judge Easterbrook further seems to have reasoned that the only
discrimination relevant to Section 2’s totality-of-the-circumstances inquiry is
of the state-sponsored variety. See Frank,
768 F.3d at 753
. The dissent agrees,
adding that the official discrimination must be “contemporary” or at least
“recent.” I have difficulty squaring that with Section 2’s directive to address
the “totality of circumstances,” and with the Supreme Court’s admonitions to
probe the interaction of the challenged practice “with social and historical
conditions” as well as consider “the extent to which minority group members
bear the effects of past discrimination in areas such as education, employment,
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and health, which hinder their ability to participate effectively in the political
process.” Gingles,
478 U.S. at 47, 45
. As one of this court’s notable jurists put it, “under the results standard of section 2, pervasive private discrimination should be considered, because such discrimination can contribute to the inability of [minorities] to assert their political influence and to participate equally in public life.” United States v. Marengo Cty. Comm’n,731 F.2d 1546
, 1567 n.36 (11th Cir. 1984) (Wisdom, J.); see also Gomez v. City of Watsonville,863 F.2d 1407, 1418
(9th Cir. 1988) (rejecting the argument that only discrimination by the defendant is relevant to a Section 2 vote-dilution case); Solomon v. Liberty County,899 F.2d 1012, 1032
(11th Cir. 1990) (en banc)
(Tjoflat, J., concurring) (“Congress . . . revised section 2 to prohibit election
practices that accommodate or amplify the effect that private discrimination
has in the voting process.” (ellipsis in original) (quoting David L. Eades, Recent
Developments, Section 2 of the Voting Rights Act: An Approach to the Results
Test, 39 VAND. L. REV. 139, 172 (1986))). 7
III.
Two related final points bear mentioning. First, Judge Easterbrook
warned that the Frank plaintiffs’ interpretation of Section 2 could “sweep[]
away almost all registration and voting rules.” Frank,
768 F.3d at 754
. For
example, he opined, “[m]otor-voter registration, which makes it simple for
7 Because Texas selected the requisite voter qualifications and the manner of
implementing them, which the trial court found interact with the effects of discrimination to
cause racial disparities in opportunity to vote, considering the effects of private
discrimination among other factors does not violate the Supreme Court’s warning against
imposing disparate-impact liability when “the plaintiff cannot point to a defendant’s policy
or policies causing [a statistical] disparity.” Inclusive Cmtys.,
135 S. Ct. at 2523
; cf. id. at
2524 (opining that a Fair Housing Act plaintiff might not be able to show “a causal connection
between the Department’s policy and a disparate impact” if, “for instance . . . federal law
substantially limits the Department’s discretion”).
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people to register by checking a box when they get drivers’ licenses, would be
invalid, because black and Latino citizens are less likely to own cars and
therefore less likely to get drivers’ licenses.” Id. The dissent advances a
similar point, warning that voting regulations ranging from polling locations,
early voting details, and registration times “can be challenged successfully
under the majority’s rationale.” I agree that Section 2 challenges can be
brought against a variety of election laws—but that is nothing new. See Holder
v. Hall,
512 U.S. 874, 922
(1994) (Thomas, J., concurring) (“The section thus covers all manner of registration requirements, the practices surrounding registration (including the selection of times and places where registration takes place and the selection of registrars), the locations of polling places, the times polls are open, the use of paper ballots as opposed to voting machines, and other similar aspects of the voting process that might be manipulated to deny any citizen the right to cast a ballot and have it properly counted.”); see also Allen v. State Bd. of Elections,393 U.S. 544
, 566–67 (1969) (“Indicative of an intention to give the Act the broadest possible scope, Congress expanded the language in the final version of [Section] 2 to include any ‘voting qualifications or prerequisite to voting, or standard, practice, or procedure.’” (quoting then-42 U.S.C. § 1973
)). Nor does it imperil our electoral system.
There is a difference between making voting harder in ways that interact
with historical and social conditions to disproportionately burden minorities
and making voting easier in ways that may not benefit all demographics
equally (like motor-voter). The former can be characterized as “abridging” the
right to vote; the latter cannot. Laws that neither “eliminate opportunities
that racial minorities disproportionately use, [n]or impose a requirement that
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they disproportionately lack,” 8 in other words, will not fail our test. Cf.
52 U.S.C. § 10301
(b) (explaining that Section 2 does not “establish[ ] a right to have members of a protected class elected in numbers equal to their proportion in population”). And as recent cases show, not all voter ID laws will, either. It is simplistic to lump all such laws together, overlooking that details—such as which forms of ID are accepted at the polls, 9 what documentation is needed to get a free qualifying ID, 10 and how the law is implemented 11—matter. Especially significant are the accommodations made for those most affected by the ID requirement. In North Carolina, for instance, persons without qualifying ID can vote by swearing that they “subjectively believe a reasonable impediment prevented them from acquiring ID.” N. Car. State Conference of the NAACP v. McCrory, --- F. Supp. 3d ---,2016 WL 1650774
, at *35–36
(M.D.N.C. Apr. 25, 2016). Only the impediment’s veracity may be challenged.
Id. at *120. South Carolina has a similar provision, which a three-judge court
8 Tokaji, supra, at 475.
9 See Veasey,
71 F. Supp. 3d at 642
(chart showing that, in terms of types of ID
accepted, SB 14 is the strictest voter ID law in the country).
10 Compare Veasey, 71 F. Supp. 3d at 668–69 (explaining that SB 14 requires a birth
certificate or similar document to get a free qualifying ID), with McCrory,
2016 WL 1650774, at *26
(explaining that a North Carolinian can secure free voter ID by supplying a Social Security number and two of approximately twenty supporting documents, including medical records, prison ID, and paycheck stubs), and Lee v. Va. State Bd. of Elections, --- F. Supp. 3d ---,2016 WL 2946181, at *24
(E.D. Va. May 19, 2016) (“[E]ligible voters do not need to present
any independent documentation to obtain a free voter form of identification under Virginia
Code § 24.2–643 and its implementing regulations. The statute simply requires that a
registrant provide her name, address, birthdate, and social security number and sign the
registration form swearing that the information provided is true and correct.”).
11 North Carolina’s ID requirement, for example, had a two-year “soft rollout,” and the
state’s more extensive educational efforts included mailings offering help to voters whom a
study indicated might not have qualifying ID. See McCrory,
2016 WL 1650774
, at *19–26; see also Common Cause/Ga. v. Billups,504 F. Supp. 2d 1333
, 1378–79 (N.D. Ga. 2007) (discussing Georgia’s “exceptional” educational efforts), vacated in part on other grounds,554 F.3d 1340
(11th Cir. 2009).
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stressed in preclearing the state’s voter ID law. See South Carolina v. United
States,
898 F. Supp. 2d 30
, 35–43 (D.D.C. 2012).
Second, we should not shy away from inquiring into such details, or from
judging laws in their operative contexts, merely because it will require courts
to draw fact-specific and even close distinctions. States have reacted to the
Supreme Court’s decisions in Crawford and Shelby County by introducing a
range of voting regulations that go beyond what had previously been upheld.
It is healthy for these initiatives to be assessed against congressional
mandates, and courts can and should distinguish between nondiscriminatory
ones which safeguard voter integrity and those which, whatever their
intentions, interact with the effects of past discrimination to abridge
minorities’ opportunities to participate in the political process. Such scrutiny
should be seen not as heavy-handed judicial rejection of legislative priorities,
but as part of a process of harmonizing those priorities with the fundamental
right to vote—a topic with which over a quarter of our Constitution’s
amendments have dealt in one way or another, and an individual right that
cannot be compromised because an adverse impact falls on relatively few
rather than many. See Operation Push,
932 F.2d at 404
(noting that the
Mississippi legislature responded to a finding of a Section 2 violation by
adopting ameliorative changes suggested by a district court); South Carolina,
898 F. Supp. 2d at 35–36 (explaining that state officials adopted a broad
interpretation of a voter ID law’s reasonable-impediment exception as
litigation progressed); id. at 53 (Bates, J., concurring) (“An evolutionary
process has produced a law that accomplishes South Carolina’s important
objectives while protecting every individual’s right to vote and a law that
addresses the significant concerns raised about [the law’s] potential impact on
a group that all agree is disproportionately African-American.”); see also N.
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Car. State Conference of the NAACP v. McCrory, --- F. Supp. 3d ---,
2016 WL 204481, at *2, *11
(M.D.N.C. Ja. 15, 2016) (noting that North Carolina adopted a reasonable-impediment exception “materially indistinguishable from South Carolina’s” during the course of litigation); Milwaukee Branch of the NAACP v. Walker,851 N.W.2d 262
, 278–79 (Wis. 2014) (construing voter ID law so as
to avoid constitutional infirmity). 12
Cognizant that the Supreme Court may itself choose to refine Section 2
law in light of Gingles, Crawford, and Shelby County, or that Congress may
revisit the topic as other affected groups, such as young people, the working
poor, and the elderly mobilize, I concur in the majority opinion, having offered
these respectful responses to arguments made in dissent.
12 I also disagree with the opposite criticism that this interbranch engagement
ameliorates too little, though that argument is contributory. See Richard L. Hasen, Softening
Voter ID Laws Through Litigation: Is it Enough?, WISC. L. REV. FORWARD (forthcoming 2016),
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2743946 (with apologies to Professor
Hasen for my citation of his draft version).
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EDITH H. JONES, Circuit Judge, joined by E. GRADY JOLLY, JERRY E.
SMITH, EDITH BROWN CLEMENT, and PRISCILLA R. OWEN, concurring
in part and dissenting in part:
We dissent. 1 Requiring a voter to verify her identity with a photo ID at
the polling place is a reasonable requirement widely supported by Texans of
all races and members of the public belonging to both political parties. The
majority, however, today holds not only that Texas’s photo voter ID law, SB 14,
violates the “results test” declared in Section 2 of the Voting Rights Act, 2 but
concludes that there is “more than a scintilla” of evidence to support a finding
that the Texas Legislature passed the photo voter ID law with a racially
discriminatory intent. By keeping this latter claim alive, the majority fans the
flames of perniciously irresponsible racial name-calling. 3
1We join only Part IV of the majority opinion that renders judgment in favor of the
State on the Plaintiffs’ poll tax claim.
2 This holding invalidates the law for that small subgroup of the subgroup of 4.5% of
Texas registered voters, those who allegedly lack not only the law’s approved ID (drivers
licenses, veterans ID, etc.) but also lack the documentation (birth certificates) necessary to
obtain a free Election Identity Card (“EIC”) and are inconvenienced by obtaining the
documentation and the EIC. As I shall demonstrate, the majority offers a gravely incorrect
interpretation of Section 2.
3 Section 2 was amended to add the results test, footing liability on less than
intentional conduct, in part to defuse controversy over charges of purposeful discrimination.
See Thornburg v. Gingles,
478 U.S. 30, 44
,106 S. Ct. 2752, 2763
(1986) (explaining that one
of the “principal reasons” the intent test was repudiated was that it was “unnecessarily
divisive because it involves charges of racism on the part of individual officials or entire
communities” (internal quotations omitted)). The Senate Report, from which the Court in
Gingles heavily draws, elaborates on this point from testimony and examples before
Congress:
As Dr. Arthur S. Flemming, Chairman of the United States Commission on
Civil Rights, testified during hearings before the Subcommittee on the
Constitution:
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No one doubts our unwavering duty to enforce antidiscrimination law.
But in this media-driven and hyperbolic era, the discharge of that duty
requires the courage to distinguish between invidious motivation and shadows.
The ill-conceived, misguided, and unsupported majority opinion shuns
discernment. Because of definitive Supreme Court authority, no comparable
federal court precedent in over forty years has found a state legislative act
motivated by purposeful racial discrimination. Even more telling, the multi-
thousand page record yields not a trace, much less a legitimate inference, of
racial bias by the Texas Legislature. Indeed, why would a racially biased
legislature have provided for a cost-free election ID card to assist poor
registered voters—of all races—who might not have drivers’ licenses? Yet the
majority emulates the clever capacity of Area 51 alien enthusiasts who, lacking
any real evidence, espied a vast but clandestine government conspiracy to
conceal the “truth.” 4
(L)itigators representing excluded minorities will have to
explore motivations of individual council members, mayors, and other
citizens. The question would be whether their decisions were motivated
by invidious racial considerations. Such inquiries can only be divisive,
threatening to destroy any existing racial progress in a community. It
is the intent test, not the results test, that would make it necessary to
brand individuals as racist in order to obtain judicial relief.
The very concern voiced by Dr. Flemming was illustrated by two recent
decisions, [City of Mobile, Ala. v.] Bolden, [
446 U.S. 55
,100 S. Ct. 1490
(1980)],
on remand, and Perkins v. City of West Helena, Ark.[,
675 F.2d 201
(8th Cir.
1982)]. In both cases, the federal courts were compelled to label the motives of
recent public officials as “racial” in reaching the conclusion that an electoral
system was maintained for a discriminatory purpose.
S. REP. NO. 97-417, at 36 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 207-08 (footnotes
omitted).
4 See GREGORY W. PEDLOW & DONALD E. WELZENBACH, CENT. INTELLIGENCE
AGENCY, THE CENTRAL INTELLIGENCE AGENCY AND OVERHEAD RECONNAISSANCE: THE U-2
AND OXCART PROGRAMS, 1954–1974 (1992) (declassified June 25, 2013) (report debunking
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Because inflammatory and unsupportable charges of racist motivation
poison the political atmosphere and tarnish the images of every legislator, and
the Texas Lt. Governor and Governor, who supported SB 14, we consider that
majority conclusion first. We then critique the majority’s Section 2 holding and
discuss constitutional tensions the majority opinion fosters.
I. Background
Three points must be highlighted at the outset, with further discussion
to follow: the true extent of the legislative process leading to passage of a photo
voter ID law; the catalytic effect of the Supreme Court’s decision approving
these IDs; and the impact of the law’s requirements on all races.
First, SB 14 was enacted in the 2011 biennial legislative session after
similar bills requiring photo voter ID had failed in three previous sessions. For
six years, opponents had successfully stalled measures requiring proof of a
voter’s identity, not just a piece of paper from the County Registrar’s office or
a mere affidavit of “lost voter certificate.” For every shortcut the majority
employed to finally pass SB 14, an equal and opposite blocking tactic had
succeeded in earlier legislative sessions.
Second, the campaign for stronger voter ID laws was encouraged by
Crawford v. Marion County Election Board,
553 U.S. 181
,128 S. Ct. 1610
(2008), which upheld Indiana’s photo voter ID law and emphasized the
importance of protecting the integrity of election processes. Justice Stevens’s
Area 51 conspiracy theories). Circumstantial evidence—equally probative as that relied on
by the majority—is at odds with calling SB 14 intentionally discriminatory. Lamenting the
lack of Latino voter turnout in Texas elections, Gilberto Hinojosa, the Texas Democratic
Chairman, was recently quoted in a news article: “Voter ID is a problem. It is. But that’s
fixable. . . . That’s not stopping that 1 million from going out to vote . . . .” Peggy Fikac, Texas
Democratic Chair: It’s ‘Ridiculous’ His Party Isn’t Winning, SAN ANTONIO EXPRESS NEWS
(June 16, 2016), http://www.mysanantonio.com/news/local/article/Texas-Democratic-chair-
It-s-ridiculous-8261873.php.
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opinion rejected the claim that Indiana had to advance “proof” of actual in-
person voter fraud in order to justify the statute. Fourteen states passed photo
voter ID laws in the wake of Crawford.
Third, the range of qualifying SB 14 IDs, while narrower than that in
some similar ID laws, poses no obstacle to voting for at least 95.5% of all Texas
voters who have unexpired (or no later than 60 days past expiry) driver’s
licenses, Texas personal identification cards, military IDs with a photo, United
States passports, United States citizenship certificates with a photo, or
licenses to carry a handgun. For those who lack such IDs, the law offers a cost-
free Election Identification Card (“EIC”) obtainable at state DMV offices (like
the free card available in Indiana). Photo voter IDs are not required for elderly
and disabled voters, as they may vote with mail-in ballots.
At trial, the alleged adverse racial impact of SB 14 was derived from
statistical estimates of the relative numbers of Anglo, Black, and Hispanic
voters who “do not possess SB14-compliant IDs.” That is to say, of the 4.5%
who may lack qualifying IDs, a disproportionate number are Black and
Hispanic voters. Still, approximately the same number of Anglo registered
voters (approx. 296,000) as the total of Black (approx. 128,000) and Hispanic
(approx. 175,000) voters lack the requisite IDs. Put otherwise, approximately
2% of Anglo, 5.9% of Hispanic and 8.1% of Black voters comprise the 4.5% who
lack SB 14 IDs but could vote with EICs; the law poses no obstacle for over 90%
of minority voters.
Despite extraordinary efforts to find voters “disenfranchised” by SB 14,
the DOJ could not uncover any, and no representative of the plaintiff
organizations found any of their members unable to vote because of SB 14.
Three plaintiffs claimed they could not vote in person under SB 14, but two of
those qualified for ballots by mail. The plaintiffs’ case thus turned on the
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extent to which it could be estimated that those who do not possess SB 14 IDs
would find it difficult to acquire EICs. It was assumed that the 4.5%
overwhelmingly include the poor (of all races). There was expert testimony,
unsupported by any hard data, that “the poor” are less likely to have actual or
certified copies of birth certificates, the principal document required for an
EIC. Obtaining birth certificates was testified to be challenging for the poor,
especially those who had moved from their original birthplaces, but no
estimates of this class’s mobility were offered. Finally, even if the poor had
birth certificates or obtained them, the district court found that travelling to
DMV offices to procure EICs could be time-consuming, burdensome and
interfere with hourly work schedules.
II. The Majority’s Erroneous Discussion of Discriminatory Intent
SB 14 is a facially neutral law of general applicability, whose photo ID
requirement poses no obstacle to the overwhelming majority of registered
Texas voters. The law has a racially disparate impact upon a subset of
minority voters. But there is “no smoking gun,” not even code words that
suggest discriminatory intent in the thousands of pages of legislative
documents and deposition transcripts that the district court compelled the
state to produce. The majority entirely ignores the total absence of direct
evidence and, moreover, has to exclude (by force of precedent) the evidence
most heavily relied on by the district court. Still, the majority finds “more than
a scintilla of evidence” that could allow the district court on remand to condemn
the law as, at least in part, racially motivated. I fully agree with Judge
Clement’s application of the Arlington Heights factors and will not repeat the
discussion in her separate dissent. My additional disagreements are two-fold.
First, the majority fails to follow the totality of Supreme Court precedents
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pertaining to the interpretation of legislative intent. 5 Second, the majority
butchers, when it does not ignore, the relevant facts.
A. Applicable Legal Principles
“[O]fficial action will not be held unconstitutional solely because it
results in a racially disproportionate impact . . . . Proof of racially
discriminatory intent or purpose is required to show a violation of the Equal
Protection Clause.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,
429 U.S. 252
, 264–65,97 S. Ct. 555, 563
(1983). This is shared ground, as it is
that Arlington Heights sets out certain factors that may be relevant to proving
the intent of the legislature.
Arlington Heights’s discourse on proving discriminatory legislative
intent does not exist in a vacuum. There, the Court upheld a zoning board
decision that prevented the construction of a low-income housing project in a
Chicago suburb. The facially neutral zoning order had a discriminatory impact
on minorities who were more likely to inhabit the project. The Court attempted
to catalog how a legislative decision, and the steps leading to it, might display
an impermissible motive. Notably, in each case cited to exemplify its listed
factors, discriminatory motive could be easily inferred. A county closed public
(heavily minority) schools while private segregated schools received financial
support. 6 A state constitutional amendment was passed to overturn laws that
5 The majority also erroneously equates finding legislative intent with finding
discrimination in employment cases. The intent of the legislature is a pastiche of each
individual representative’s views, mixed policies and motives. An employer, in contrast, is
held to have a single motive and policy. A facile equation of these two situations elides the
difficulty in legislative cases, which the Supreme Court plumbed in cases described above.
6 Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,
429 U.S. 252, 267
,97 S. Ct. 555, 564
(1977) (citing Griffin v. Sch. Bd.,377 U.S. 218
,84 S. Ct. 1226
(1964)).
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had recently banned discrimination in private home sales. 7 And zoning
regulations were immediately changed, or a moratorium on new construction
declared, or land rezoned to park use when a public housing project was
proposed. 8 Highly relevant to legislative purpose, the Court held, but
“extraordinary” because it could not normally be compelled, would be evidence
of legislative history and legislators’ contemporaneous statements.
Id. at 268
. The Court applied its newly listed factors to a very ordinary and neutral zoning process and found no racially discriminatory purpose.Id.
at 269–71.
Nothing in Arlington Heights suggests that the Court’s listing of relevant
factors licenses courts to string together bits of circumstantial evidence that
wholly lack racial content and then undo any law with an incidental disparate
impact. In Arlington Heights, the Court found no basis for doing so.
Arlington Heights followed Washington v. Davis, in which the Court held
that purposeful discrimination is required to establish Equal Protection
violations. Despite evidence that four times more Blacks than Whites failed
the District of Columbia’s verbal proficiency test for police applicants,
426 U.S. 229, 237
,96 S. Ct. 2040, 2046
(1976), the Court found no purposeful discrimination,id. at 246
. “The test is neutral on its face and rationally may be said to serve a purpose the Government is constitutionally empowered to pursue.”Id.
Other facts recounted how the District was attempting to recruit
minority police officers.
Critical for this case is the Court’s conclusion in Washington v. Davis:
7
Id.
(citing Reitman v. Mulkey,387 U.S. 369
, 373–76,87 S. Ct. 1627
, 1629–31 (1967)).
8
Id.
at nn.16–17 (citing Kennedy Park Homes Ass’n v. City of Lackawanna,443 F.2d 108
(2d Cir. 1970); Dailey v. City of Lawton,425 F.2d 1037
(10th Cir. 1970); Progress Dev. Corp. v. Mitchell,286 F.2d 222
(7th Cir. 1961)).
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A rule that a statute designed to serve neutral ends is nevertheless
invalid, absent compelling justification, if in practice it benefits or
burdens one race more than another would be far-reaching and
would raise serious questions about, and perhaps invalidate, a
whole range of tax, welfare, public service, regulatory, and
licensing statutes that may be more burdensome to the poor and
to the average black than to the more affluent white.
Id. at 248
. For precisely this reason, courts must walk a fine line between
acknowledging discriminatory impact in a neutral law and discerning
discriminatory purpose from nothing more than creative inferences.
Two years after Arlington Heights, the Court rejected inferring
discrimination against women in a Massachusetts law that conferred an
absolute lifetime state employment preference for veterans. Pers. Adm’r of
Mass. v. Feeney,
442 U.S. 256
,99 S. Ct. 2282
(1979). 9 The district court had found no overt sex-discriminatory purpose by the legislature but concluded that the consequences of the absolute-preference formula for women’s employment opportunities “were too inevitable to have been ‘unintended.’”Id. at 261
. But the Court focused on the legitimate, noninvidious purpose of the law, which broadly included both male and female veterans, and it noted that significant numbers of male nonveterans were also disadvantaged by the law.Id.
at 274–75. 10 The adverse impact of the law was gauged according to all the
affected citizens, not just the minority group.
9A finding of discrimination had been remanded for reconsideration in light of
Washington v. Davis. Pers. Adm’r of Mass v. Feeney,
442 U.S. 256, 260
,99 S. Ct. 2282, 2286
(1979).
10 Justice Stevens’s concurrence pointed out that about 2.8 million women were
adversely affected by the law, but so were over 1.8 million men, a comparison he found
significant “to refute the claim that the rule was intended to benefit males as a class over
females as a class.”
Id. at 281
.
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Significantly, the Court rebuffed three arguments reminiscent of
contentions advanced in this case to support a finding of discriminatory
purpose. First, even though the military may have historically discriminated
against women, “the history of discrimination against women in the military
is not on trial in this case.”
Id. at 278
; see also Milliken v. Bradley,418 U.S. 717, 745
,94 S. Ct. 3112, 3127
(1974) (remedy cannot be imposed on other
government bodies not having been shown to violate Constitution). In other
words, exogenous effects of past discrimination cannot be used to impute a
contemporary discriminatory purpose.
Second, the Court held, discriminatory purpose:
implies more than intent as volition or intent as awareness of
consequences . . . . It implies that the decisionmaker . . . selected
or reaffirmed a particular course of action at least in part ‘because
of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable
group. Yet nothing in the record demonstrated that this
preference for veterans was originally devised or subsequently re-
enacted because it would accomplish the collateral goal of keeping
women in a stereotypic and predefined place in the Massachusetts
Civil Service.
Id. at 279. Thus, as in Arlington Heights, an absence of direct evidence of
discriminatory intent should be compelling.
Third, the Court rejected the plaintiffs’ complaint that the law was
excessively broad, unfair, and controversial with a firm reminder that “the
Fourteenth Amendment ‘cannot be made a refuge from ill-advised laws.’” Id.
at 281 (internal citation omitted). That a law might have been written
differently with respect to impact does not condemn it under the Equal
Protection Clause.
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In a footnote, the Court acknowledged the possibility that a strong
inference of discrimination could perhaps be drawn from a stark sex-based
impact, but the Court cautioned that
[i]n this inquiry—made as it is under the Constitution—an
inference is a working tool, not a synonym for proof. When, as
here, the impact is essentially an unavoidable consequence of a
legislative policy that has in itself always been deemed to be
legitimate, and when, as here, the statutory history and all of the
available evidence affirmatively demonstrate the opposite, the
inference simply fails to ripen into proof.
Id. at 279 n.25. Inferences cannot substitute for proof where the available
evidence demonstrates no invidious intent.
The case before us falls comfortably in line with Arlington Heights,
Washington v. Davis, and Feeney. 11 First, the facially neutral laws in each of
those cases worked a far more dramatic disparate impact on minorities than
does SB 14’s specification of qualifying photo voter IDs. SB 14, after all, has
no disparate impact on over 90% of all registered Black and Hispanic voters.
Second, as in the Supreme Court cases, SB 14 has legitimate noninvidious
purposes: ensuring the integrity of in-person balloting and public confidence
in election outcomes. Third, as in Washington v. Davis, where surrounding
circumstances confirmed an absence of discriminatory intent, 426 U.S. at 246–
47, 96 S. Ct. at 2051, SB 14 authorized an EIC for all voters without drivers’
licenses, presumably the poor, to satisfy the photo ID requirement. Fourth, as
in Feeney, not only minority voters but an equal number of Anglo voters are
11 It is true that the primary holdings in Washington v. Davis and Feeney worked out
the relationship between disparate impact and the Equal Protection clause, but in each case,
to uphold the law in question, the Court necessarily had to find no purposeful discrimination
by the legislature. This discussion reflects that aspect of the decisions.
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within the 4.5% who do not have qualifying IDs. Fifth, in not one of those cases
did the Court require “proof” that the challenged statute was effective or the
best choice to achieve the legislative objective. Instead, the Court in Feeney
admonished that the Fourteenth Amendment is not a “refuge from ill-
advised . . . laws.”
442 U.S. at 281
,99 S. Ct. at 2297
(internal citation omitted).
The majority ignores the foregoing similarities between this case and the
governing trio of Supreme Court authorities. In fact, following this trio, no
comparable federal court decision in forty years has found that any facially
neutral state law was passed with discriminatory purpose. 12 The majority
opinion further defies those authorities by relying excessively on exogenous
12 Cf. Hunter v. Underwood,
471 U.S. 222
,105 S. Ct. 1916
(1985) (overturning an Alabama constitutional provision dating from 1901 with abundant evidence of discriminatory intent to disenfranchise Black felons); Garza v. Cty. of L.A.,918 F.2d 763
(9th Cir. 1990) (holding that action by a county, not a state legislature, to fragment Hispanic voting population to perpetuate incumbencies amounted to intentional discrimination); Harris v. Siegelman,695 F. Supp. 517
(M.D. Ala. 1988) (finding intentional discrimination where policies of: appointing only White poll officials; keeping electoral process closed to Black citizens by law and through use of fraud, force, and intimidation; and retaining provisions from racially inspired law requiring that voter seeking assistance swear oath to inspectors that he or she is unable to write English language and limiting to five minutes time that voter may remain inside voting booth amounted to intentional discrimination); Baker v. City of Kissimmee, Fla.,645 F. Supp. 571
(M.D. Fla. 1986) (holding that the city intentionally
discriminated against Black citizens by providing municipal services of street paving,
resurfacing, and maintenance to identifiable Black residential neighborhoods in a disparate
and unequal manner in violation of Equal Protection Clause, where about 63% of street
footage in Black neighborhoods was unpaved compared to about 39% in White neighborhoods,
and about 95% of resurfacing programs occurred in White neighborhoods compared to about
5% in Black neighborhoods).
Judge Costa attempts to explain away the absence of any comparable case in over
forty years declaring that a state legislature acted with discriminatory intent. The presence
of preclearance under Section 5 in some jurisdictions does not explain why there are no
findings of purposeful discrimination by a state legislature either outside the jurisdictions
covered by preclearance or beyond the subject of voting regulations. Washington v. Davis,
Feeney, and Arlington Heights all rejected discrimination claims not arising from voting
rights. Like the majority, Judge Costa continues to fear de jure discrimination by states fifty
years after passage of the major federal civil rights laws in this country.
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effects of discrimination and “long ago” legislative actions, and by authorizing
a string of inferences to become a “synonym for proof” contrary to Feeney. See
id.
at 279 n.25.
But even if there were merit in the majority’s inadequate reading of the
Supreme Court’s decisions, the “proof” adduced in support of the majority
opinion is nonexistent. 13 We move on to address the errors and omissions
committed in the majority’s analysis of the record.
B. Record Analysis
The following section tracks each of the alleged “facts” from which the
majority opinion draws inferences of discriminatory intent.
1. “the record does not contain direct evidence . . . .”
As the majority acknowledges, the record is barren of any “direct
evidence that the Texas Legislature passed SB 14 with a racially invidious
13 Judge Costa’s separate opinion requires special comment to the extent it admits a
“different starting point” for assessing a discriminatory purpose claim. In plain English, he
argues a theory never litigated in this case, unsupported by any evidence, at odds with the
Supreme Court’s decision in Feeney, and unsupported by the only cases he relies on. After
his lament about the duration of the instant litigation, there is no justification for bringing
up points that are unpreserved, not briefed, and therefore not entitled to consideration on
remand. Judge Costa’s theory is that political partisanship can be tantamount to a proxy for
discriminatory intent. That is not what the Court held in Feeney: “‘Discriminatory
purpose’ . . . implies more than intent as volition or intent as awareness of consequences.”
442 U.S. at 279
,99 S. Ct. at 2296
. The decisionmaker must have acted in part “because of,” not merely “in spite of” the adverse effects of the legislation.Id.
Judge Costa points to no evidence indicating such a discriminatory purpose to “suppress votes”, as opposed to ensuring the voters’ identity. Further, in the single case he relies on (and only the concurring opinion, at that), the district court found direct evidence of purposeful discrimination as well as partisanship. Garza v. City of Los Angeles,918 F.2d 763
, 767 n.1, 771 (9th Cir. 1990). Judge Costa (and the majority in fn.30) cite Ketchum v. Byrne,740 F.2d 1398, 1408
(7th Cir. 1984), for the proposition that in factually egregious circumstances, local council redistricting to protect political incumbents might intentionally discriminate against minority voters. In Ketchum, however, the court refused to review the question of intentional discrimination after the district court had resolved the case under Section 2.Id. at 1409
.
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purpose.” After making this observation, the court quickly pivots to
cataloguing various pieces of circumstantial evidence, but the majority fails to
mention that the plaintiffs unearthed no direct evidence of discriminatory
intent even after they were granted wide-ranging and invasive discovery into
potentially privileged 14 internal correspondence of the Legislature. Indeed,
legislators, their staff, and even the Lt. Governor produced thousands of
documents, including office files, bill books, personal correspondence
concerning SB14, access to personal and official email accounts, and e-mail
communications between legislators and lawyers at the Texas Legislative
Council. 15 Additionally, the plaintiffs took weeks of seven-hour-long
14 In Arlington Heights, the Supreme Court cautioned that “judicial inquiries into
legislative or executive motivation represent a substantial intrusion into the workings of
other branches of government” and that “[p]lacing a decisionmaker on the stand is therefore
‘usually to be avoided.’”
429 U.S. at 268
n.18, 97 S. Ct. at 565 n.18. “In some extraordinary
instances . . . members might be called to the stand at trial to testify concerning the purpose
of the official action, although even then such testimony frequently will be barred by
privilege.” Id. at 268.
Since Arlington Heights, courts frequently rely on the legislative privilege to repel
attempts by plaintiffs to subject legislators to the burdens of civil litigation. See In re
Hubbard,
803 F.3d 1298
, 1307–08 (11th Cir. 2015) (quashing subpoenas for the production of documents served on legislators and a Governor in a First Amendment retaliation case); Reeder v. Madigan,780 F.3d 799, 806
(7th Cir. 2015) (dismissing, based on legislative immunity, plaintiff’s claim that the Illinois Senate violated his First Amendment rights by denying him media credentials); Brown & Williamson Tobacco Corp. v. Williams,62 F.3d 408
(D.C. Cir. 1995) (quashing subpoenas for disclosure of subcommittee documents served on members of a Congressional subcommittee by private defendants in an unrelated civil lawsuit); MINPECO, S.A. v. Conticommodity Servs., Inc.,844 F.2d 856
(D.C. Cir. 1988)
(same).
In this case, however, the district court disregarded this authority and opted to take
a piecemeal, balancing approach to the legislators’ legislative privilege.
15 See, e.g., ROA 83316–17 (requesting from Senator Fraser “[a]ll documents related
to communications between, among, or with you, the office of the Governor, the office of the
Lt. Governor, the office of the Secretary of State, the Department of Public Safety, the office
of the Texas Attorney General, any Legislator or Legislators, their staff or agents, lobbyists,
groups, associations, organizations, or members of the public concerning the State of Texas’s
consideration of a requirement that voters present identification to cast a ballot, from
January 1, 2005, through November 30, 2010).
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depositions from over two dozen witnesses, including: eleven legislators and
members of their staff 16 and over a dozen individuals from state agencies such
as the Department of Public Safety, the Office of the Secretary of State, the
Office of the Attorney General, and the Department of State Health Services.
The record also contained twenty-nine depositions of legislators, their staff,
and state agency officials that were taken in the SB 14 preclearance litigation;
sixteen of these depositions were of the legislators themselves. Yet, this
unprecedented and probing inquisition into reams of documents and hours of
testimony uncovered not a single slip of the tongue or errant statement
indicative of a racially discriminatory motive behind SB 14. Were SB 14
tainted by racially discriminatory intent, one would expect to find at least some
hint of such invidious intent in the thousands of files and hours of deposition
testimony, which were aggregated from a diverse cross-section of state officials.
Instead, the evidence demonstrated just the opposite: that SB 14 was passed
to deter voter fraud and promote ballot integrity, thereby increasing voter
turnout. 17
16 Lt. Gov. Dewhurst (ROA 60999); Senator Dan Patrick (ROA 620987); Senator
Robert Duncan (ROA 61062); Senator Troy Fraser (ROA 61168); Senator Tommy Williams
(ROA 62692); Speaker Joe Straus (ROA 65509); Rep. Debbie Riddle (ROA 62219); Rep.
Patricia Harless (ROA 61343); Bryan Hebert, General Counsel to the Lt. Governor (ROA
60999); Janice McCoy, Chief of Staff to Senator Troy Fraser (ROA 64226); and Colby Beuck,
Chief of Staff to Rep. Harless (ROA 60918).
17 See Lt. Gov. Dewhurst Dep. at 122 (ROA 61026) (“presenting the ID listed in Senate
Bill 14 is a substantial improvement towards the goals that most people have, and that is to
fight voter fraud, because all of these four points will show who the person is, divert voter
fraud and to provide more confidence in the election process and result in a larger voter
turnout.”); Senator Patrick Dep. at 106 (ROA 62122) (“To protect the integrity of the ballot
box—and pass a bill that the vast majority of people had indicated they wanted passed and
believed should pass.”); Senator Fraser Dep. at 174, 177 (ROA 61204–05) (agreeing that the
purpose of SB 14 was to deter voter fraud and to “protect the integrity of the voting box”);
Senator Duncan Dep. at 127–29 (ROA 61091) (“The purpose of the bill was to preserve ballot
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This is not to say that circumstantial evidence of intent may be not used
in proving intentional discrimination, Arlington Heights,
429 U.S. at 266
,97 S. Ct. at 564
. However, in this rare case where the plaintiffs engaged in a searching inquiry into the legislative process, the circumstantial evidence would have to be overwhelming to support a theory—not borne out by any direct evidence—that there was a vast but silent conspiracy to pass a racially discriminatory law that permeated both houses of the Legislature, the Lt. Governor’s office, the Governor’s office, and various state agencies. Cf. Price v. Austin Indep. Sch. Dist.,945 F.2d 1307, 1318
(5th Cir. 1991) (upholding a district court’s no-discriminatory-intent finding concerning a school board’s adoption of a student assignment plan and noting that when decisionmakers testify without invoking the privilege, “the logic of Arlington Heights suggests that” such direct evidence is “stronger than the circumstantial evidence proffered by the plaintiffs”); see also Flemming v. Nestor,363 U.S. 603, 617
,80 S. Ct. 1367, 1377
(1960) (“[O]nly the clearest proof could suffice to establish the
unconstitutionality of a statute on [the] ground [of improper legislative
motive]. Judicial inquiries into Congressional motives are at best a hazardous
matter, and when that inquiry seeks to go behind objective manifestations it
becomes a dubious affair indeed.”).
integrity and to prevent people from just basically harvesting voter ID cards or voter
registration cards and using them to influence primary and general elections.”); Senator
Williams Dep. at 115 (ROA 62709) (“I think the purpose of the bill was to prevent in-person
voter fraud. That would include people who weren’t citizens of the United States who tried
to vote.”); Rep. Straus Dep. at 49 (ROA 65521) (“I think just general voter ballot security just
to be certain that those who were casting votes were doing so legitimately.”); Rep. Harless
Dep. at 85 (ROA 61359) (“I can’t recall the answer of all the purposes of it, but mainly to
provide for the integrity of the in-person voting by showing a photo ID.”); Rep. Riddle Dep. at
68 (ROA 62228) (“It is critically important for us to maintain the integrity of the ballot box
and for the voters to have 100 percent confidence in the integrity of the ballot box.”).
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2. Quoting Senator Fraser as “knowing that the law would be subject to
preclearance” and Mr. Hebert, Lt. Gov. Dewhurst’s General Counsel,
on talking points to senators, with implication these could be
construed as masks for racist motives
To the majority, “[t]here is evidence that the proponents of SB 14 were
careful about what they said and wrote about the purposes of SB 14, knowing
it would be challenged during the preclearance process under the Voting
Rights Act.” For this proposition, they highlight a statement by Senator
Fraser, one of SB 14’s authors, who testified that “the public legislative record
would either go to the Department of Justice or a three-judge panel as a part
of the [Voting Rights Act] Section 5 review process.” Because Senator Fraser
was “aware that everything that [he] was saying was part of a public record,”
the majority imply, it is unsurprising that no direct evidence of discrimination
was found in the unprecedented legislative discovery.
The district court did not rely on Fraser’s statements to explain away the
lack of a “smoking gun” in the legislative record or discovery. See Veasey v.
Perry,
71 F. Supp. 3d 627, 702
(S.D. Tex. 2014). At most, his testimony reflects
simple and uncontroversial facts.
Senator Fraser’s deposition excerpts were read into the record by the
State during the Veasey trial. The majority opinion quotes from the plaintiff’s
“cross-examination” portion. When asked if it was his belief “that the public
legislative record would either go to the Department of Justice or a three-judge
panel as part of the Section 5 review process,” Senator Fraser testified that he
“did believe it would go one of those two places.” Senator Fraser was then
asked if this made him consider “what sort of statements [he] made on the
Senate Floor?” Senator Fraser did not respond that he was especially careful
in his floor statements about SB 14 or anything even close to that. Instead, he
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simply responded that he “was aware that everything [he] was saying was part
of the public record.”
Senator Fraser’s testimony does not support the inference that SB 14
proponents were unusually careful about what they wrote and said.
Senator Fraser’s awareness that the public legislative record would be
scrutinized by the Justice Department or a three-judge court under the
preclearance process is a statement of fact. Between 1975 and 2013, any
change in Texas voting procedures had to be “approved by federal authorities
in Washington, D.C.—either the Attorney General or a court of three judges.”
Shelby Cty. v. Holder,
133 S. Ct. 2612, 2620
(2013).
Senator Fraser’s statement that he was aware that his Senate Floor
statements would be part of the public record is also a fact. The legislative
record is a matter of public record under the Texas Constitution. See TEX.
CONST. art. III, § 12(a). The Texas Senate Staff Services office makes the audio
recordings of all Senate Floor proceedings available to the public free of charge.
Most importantly, however, the facts conveyed by Senator Fraser are not
probative about why the unprecedented discovery into the private
correspondence and documents of SB 14 proponents turned up no evidence of
discriminatory intent. Senator Fraser’s testimony deals with public records
and floor statements. It says nothing about why SB 14 proponents would have
censored themselves privately. Based on Arlington Heights, no one could have
predicted a federal court would order such unprecedented discovery from
Senator Fraser or the Legislature.
The majority also emphasizes a piece of deposition testimony by Bryan
Hebert, the deputy general counsel for the Lt. Governor, that he sent an email
reminding senators to emphasize the “detection and deterrence of fraud and
protecting public confidence in elections as the goal of SB 14.”
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Once again, the district court did not rely on this statement of
Mr. Hebert. See Veasey v. Perry,
71 F. Supp. 3d at 702
. Hebert’s statement
was made in an email sent to various Senate staffers laying out plans for the
floor debate on SB 14. He characterized it as “an attempt to—at
best . . . outline . . . how things might go.” Stressing the detection and
deterrence of fraud and promoting public confidence in elections was listed as
a “floor task” because, as Hebert understood it, “that was the goal of the bill.”
Hebert’s statement is not probative of why there would be no evidence
turned up in the private legislative discovery. Hebert’s statement merely urges
the use of talking points in Senate Floor speeches. Politicians emphasize and
reemphasize talking points because they are effective, not because they are
seeking to cover up ulterior motives. See Citizens United v. FEC,
558 U.S. 310, 364
,130 S. Ct. 876, 912
(2010) (“[S]ound bites, talking points, and scripted
messages . . . dominate the 24–hour news cycle.”). Hebert’s statement offers
no support for the proposition that the plaintiffs’ failure to uncover evidence of
discrimination can be ascribed to a cover-up by SB 14 proponents.
3. Legislators were “aware” of racial disparate impact
The majority opinion also contends that SB 14 proponents were aware of
the disproportionate impact it would have on minority voters. The majority
relies on three statements. First, in his deposition, Representative Todd
Smith, a proponent of SB 14 in the Texas House of Representatives, was asked
if he recalled the conclusions of studies he read about the effect of voter ID laws
on minorities. Smith testified that he did not recall the conclusions, but that
“there’s a study for every conclusion that you want to reach.” Smith then more
or less volunteered that, in his opinion, it was “common sense” that “the people
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that do not have photo IDs [are] more likely to be minority.” 18 Second, Hebert
testified that it was “possible” that an indigency affidavit provision would have
reduced the burden on poor voters and that he suspected, but did not know,
that poor voters were disproportionately minority. Contemporaneous with
SB 14’s passage, Hebert prepared a memo for other Senate staffers in which
he opined that it was doubtful that SB 14 would be precleared by the Justice
Department without additional IDs. His memo is entirely an opinion
predicated on a comparison of SB 14 to a Georgia voter ID law that obtained
preclearance. It provides only some support for the proposition that the
disparate impact of SB 14 was known among legislative staffers. Unmentioned
by the majority (or the district court) is Hebert’s further opinion that though
he was “unclear” how a three-judge court might rule, they “might be more
favorable” to preclearing the law. 19
These three statements were the universe relied upon by the district
court for the proposition that it was “clear that the legislature knew that
minorities would be most affected by the voter ID law.” Veasey v. Perry,
71 F. Supp. 3d at 657–58.
The majority opinion uses the “common sense” opinion of a member of
the Texas House of Representatives and the “suspicions” of the Lt. Governor’s
deputy general counsel to leap to the conclusion that “the drafters and
proponents of SB 14 were aware of the likely disproportionate effect of the law
on minorities.” Even if these statements were enough to imply knowledge on
18 Representative Smith’s “common sense” was only partially accurate because nearly
half of those lacking SB 14 ID are White.
19 The majority wisely does not rely—as the district court did—on the fleeting
statement of Senator Rodney Ellis, an SB 14 opponent, who speculated that “[i]n my mind, I
think . . . they knew the bill had a disparate impact.”
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the part of the entire Texas Legislature, however, awareness of the disparate
impact of a law does not prove a legislature’s intent to discriminate. Feeney,
442 U.S. at 279
, 279 n.25,99 S. Ct. at 2296
, 2296 n.25; Lewis v. Ascension Parish Sch. Bd.,662 F.3d 343, 349
(5th Cir. 2011) (per curiam).
4. Senator Fraser believes the Voting Rights Act has outlived its useful
life; Senator Fraser “not advised” about possible disparate impact;
Proponents have “largely refused to explain the rejection of
‘ameliorative’ amendments,” an attitude that was “out of character for
sponsors of major bills”
Senator Fraser indeed testified at his deposition that he believed the
Voting Rights Act had “outlived its useful life”; the district court did not rely
on this statement, and with good reason, too, since it has no probative value.
Nowhere in his deposition did Senator Fraser state that SB 14 sought to defy
the Voting Rights Act because of the law’s perceived obsolescence. And it is
odd to hold up his personal opinion of the Act’s obsolescence for an inference of
purposeful discrimination when it is, in part, shared by a majority of the
Supreme Court. See Shelby Cty.,
133 S. Ct. at 2628
.
Evidence that Senator Fraser answered questions about SB 14’s
disparate impact with “I am not advised” is also not probative of discriminatory
intent. Senator Fraser was asked on the Senate floor if the “elimination of
government documents as a form of ID [will] disproportionately affect African
Americans and Hispanics?” He responded, “I am not advised,” but he also
testified that such an answer merely indicates that the speaker does “not have
sufficient information to answer [the] question.”
The district court relied on a statement from the bill’s opponent,
Senator Ellis, that answering “I am not advised” was “out of character” for the
sponsor of a major bill, which indicated to him that Senator Fraser “drew the
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straw.” See Veasey v. Perry,
71 F. Supp. 3d at 647
. It is frankly difficult to tell
what Senator Ellis meant by the comment that Senator Fraser drew the straw.
But in no way does Senator Ellis imply that Senator Fraser acted with
discriminatory intent. Just the opposite, in fact. Senator Ellis refers to
Senator Fraser as his “friend.” Senator Ellis acknowledges that Senator
Fraser stated on the Senate Floor that he did not intend SB 14 to have a
disparate impact, and Senator Ellis himself said on the Senate Floor that he
did not believe Senator Fraser intended SB 14 to have a disparate impact.
The majority states that “[a]nother senator [then-Senator Dan Patrick]
admitted at his deposition that he and other proponents of SB 14 voted to table
numerous amendments meant to expand the types of accepted IDs, expand the
operating hours of DPS stations issuing voter IDs, delay implementation of
SB 14 until an impact study had been completed, and other ameliorative
measures.” This is a fact; there is no doubt that a number of amendments were
rejected and that the bill’s opponents generally felt that these rejections were
inadequately explained. See
id.
at 646–47. But it is incorrect to connect the
rejection of amendments with Senator Ellis’s “out of character for major bills”
comment. Senator Ellis’s comment referred only to Senator Fraser’s “I am not
advised” answers.
5. Dr. Vernon Burton ties excuse of preventing voter fraud to “Texas’s
history of racial voter suppression”
The majority notes that Dr. Vernon Burton ties the excuse of preventing
voter fraud to Texas’s history of racial voter suppression. In both his expert
report and testimony, he specifically focused on: (1) all-White primaries;
(2) secret ballots; (3) poll taxes; and (4) re-registration and voter purges. In
each instance, the majority notes, Burton testified that the laws’ stated
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rationale was to prevent voter fraud. From this, the majority contends it would
be possible to infer the Texas Legislature’s alleged discriminatory intent in
enacting SB 14 half a century later because the stated rationale was also the
prevention of voter fraud.
This recitation stands at odds with the rest of the majority’s opinion,
which expressly disavows the district court’s reliance on “Texas’s use of all-
[W]hite primaries from 1895–1944, literacy tests and secret ballots from 1905–
1970, and poll taxes from 1902–1966” because “the district court relied too
heavily on the evidence of State-sponsored discrimination dating back
hundreds of years.” As for the re-registration and voter purges, Dr. Burton’s
expert report and testimony indicate these refer to the Texas Legislature’s
passing a re-registration law in 1966 that was found unconstitutional in 1971 20
and to a voter purge law enacted in 1975 that was denied preclearance and
immediately enjoined—41 years ago. 21 It flies in the face of the majority’s
conclusion that “the district court’s disproportionate reliance on long-ago
history was error,” to now smuggle in the very same “decades-old data and
eradicated practices” in support of a finding of intentional discrimination.
Shelby Cty., 133 S. Ct. at 2627–29; see also Nw. Austin Mun. Util. Dist. No.
One v. Holder,
557 U.S. 193
, 201–04,129 S. Ct. 2504
, 2511–12 (2009).
20 See Beare v. Smith,
321 F. Supp. 1100
(S.D. Tex. 1971), aff'd sub nom. Beare v. Briscoe,498 F.2d 244
(5th Cir. 1974).
21 See Flowers v. Wiley, S-75-103-CA (E.D. Tex. 1975); see also Flowers v. Wiley,
675 F.2d 704
, 705–06 (5th Cir. 1982) (discussing history of law in the attorneys’ fees portion
of the case); Robert Brischetto et al., Texas, in QUIET REVOLUTION IN THE SOUTH: THE IMPACT
OF THE VOTING RIGHTS ACT, 1965-1990, 233, 240 (Chandler Davis & Bernard Grofman eds.,
1994) (book cited in Burton expert report summarizing this history).
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6. “Radical departures from normal legislative process” that were
“virtually unprecedented”
The majority claims that “SB 14 was subject to numerous and radical
procedural departures” that were “virtually unprecedented.” The majority has
no support, except the district court’s opinion, for its conclusion. The district
court, in turn, relies only on the speculations of opposition legislators, many of
whom are plaintiffs in this case, as to the procedural motivations underlying
SB 14’s passage. See Veasey v. Perry, 71 F. Supp. 3d at 647–51. The majority
expressly condemns the district court because it “mistakenly relied in part on
speculation by the bill’s opponents about proponents’ motives,” yet it condones
precisely such speculation here. Sadly, neither the majority nor the district
court tells the entire legislative saga as contained in the record.
Most of the district court’s pre-2011 legislative history citations are to
public websites that show only the results of votes, not to the record or expert
reports that chronicle the drama behind those results. See, e.g.,
id.
at 645–46
nn.71–77. The entire story appears from expert reports offered for the
plaintiffs (Drs. Lichtman and Davidson) and the testimony of
Lt. Gov. Dewhurst, which are necessary to understand the 2011 actions taken
by the Legislature.
First, a bit of background in how the Texas Senate considers legislation
is necessary. At the start of the session, the Senate adopts by majority vote
rules that will govern its business during the session. These rules are usually
rolled over from the prior session and then tweaked accordingly. One rule that
has been consistently adopted since World War II is the “two-thirds rule.”
Under ordinary rules, the Senate can only consider legislation in the order in
which it appears on the calendar. However, two-thirds of senators present and
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voting may vote to suspend the usual order of business and consider other
business out of turn. In practice, there is basically a two-thirds requirement
to consider bills in the Texas Senate, analogous to the cloture rule in the U.S.
Senate. This occurs because of “blocker bills.” A blocker bill is a routine or
non-controversial bill, such as one dealing with landscaping at the Capitol or
the decorations in the Senate Chamber, that is placed first on the agenda. It
is intentionally almost never passed. To get around the blocker bill and
consider legislation following it on the agenda, a two-thirds vote is required to
suspend the usual order of business. After receiving the required two-thirds
vote, the legislation can be passed by a majority vote. In a chamber with
31 senators, 11 can block under the two-thirds rule. As will be discussed, there
are various ways around the two-thirds rule, many of which are commonly
employed.
Beginning before the 2005 session of the Texas Legislature, opinion polls
showed that a large majority of Texans supported photo voter ID laws.
Further, Texas officials believed that some Texans simply did not vote because
they did not have confidence in the system or that their votes would matter.
To address these related concerns, proponents of a voter ID law began to
negotiate with opponents—almost uniformly Democrats—about a compromise
bill that could pass both houses and become law in accordance with the
overwhelming public opinion of the citizenry in Texas. Despite voicing private
support for a bill, adding language they believed would address some of their
concerns, and general efforts on the part of proponents to compromise,
opponents remained intransigent. They even voiced private concerns that they
were “upside down” in their opposition despite strong public support for a bill,
but held out because they feared primary opponents if they voted in favor of a
voter ID bill.
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Against this backdrop, the Legislature proposed the first iteration of a
voter ID bill in 2005. The majority ignores it, and the district court says only
that “[t]he bill, after being reported out of the Elections Committee, passed the
House but died in the Senate Committee on State Affairs.” Id. at 645. What
actually happened is that after the bill passed the Texas House, proponents in
the Senate attached it to another elections bill in order to avoid the two-thirds
rule in the Senate, which is a common legislative maneuver on related bills.
Senator Rodney Ellis vowed to filibuster the combined bill, and even came to
the Senate Chamber wearing tennis shoes and a catheter to comply with
Senate prohibitions against sitting and restroom breaks during floor speeches.
Before his filibuster could begin, however, opposition Senator Leticia Van de
Putte invoked a germaneness rule and the combined bill was withdrawn. The
voter ID bill was then sent to a House-Senate conference committee, but it was
delayed behind several other important measures and could not be considered
before the end of the session.
Voter ID was reintroduced in the 2007 legislative session and passed the
Texas House. Regarding the Senate, the majority says nothing and the district
court says only that it was reported out of committee and “[w]hile the rules
were initially suspended to take it up out of order for second reading, the vote
was reconsidered and the measure failed. The rules were not suspended, at
which point the bill died.” Id. at 646. 22 The true story is far more enthralling
than the district court’s sterile recitation.
Eleven opponents of the bill—all Democrats—had pledged going into the
session, as was their legislative prerogative, to block any voter ID bill under
22 The “rules . . . initially suspended” that the district court refers to is the two-thirds
rule; thus, “suspending the rules” refers to getting two-thirds to move a bill past a blocker
bill, which would be considered first under ordinary rules.
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the two-thirds rule even though Lt. Governor Dewhurst had attempted to
reach a compromise with them before the session on the substance of the bill.
However, opposition Senator Mario Gallegos was having complications from a
liver transplant, which meant that Democrat opponents lacked the votes to
block the bill in his absence. Against the advice of his doctors, Gallegos
returned to Austin for the session specifically so he could vote against the voter
ID bill. Senator Bob Deuell, a Republican and proponent of the bill, paid to
have a medical supply company put a hospital bed in a room adjacent to the
Senate chamber for Gallegos. Lt. Gov. David Dewhurst, also a Republican,
agreed to give Gallegos 24-hour notice before any vote on the voter ID bill
would occur.
Meanwhile, Democrat Senator Carlos Uresti became bedridden with the
flu during the session. He was absent from the floor on May 15, 2007, when
Senator Fraser, the voter ID bill’s sponsor, moved to suspend the regular order
of business to consider the bill, which required the two-thirds vote. Dewhurst
testified that it is a “fairly common legislative practice” to “try and move your
bill when you have the votes on the floor” and that it happens at least monthly
in every legislative session. The opponents could not block the bill and it
passed, with Senator Gallegos voting against it, 19-9 (just one more than two-
thirds). Democrat Senator Whitmire was also not on the floor, and
Lt. Governor Dewhurst called on him numerous times before skipping him in
the vote. Meanwhile, Senator Uresti, alerted about the vote by another
senator, hastily returned to the Senate chambers as the vote was occurring,
but initially missed it.
After the vote had been held and the gavel fell, Democrat Senator
Shapleigh moved to verify the vote on the grounds that Senator Whitmire had
actually been present for the vote and was improperly skipped. Lt. Governor
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Dewhurst testified that he accommodated the request because he knew “that
this [was] an important bill to the Democrats and to the Republicans,” and he
“didn’t want controversy.” He “bent over backwards to respect [Senator
Whitmire] and his statement” that he was actually on the floor, so a
verification (i.e. second) vote was held. This allowed all 11 opposition senators
to vote against it, with Senator Uresti sprinting up the Capitol steps to reach
the floor just in time for the vote and Senator Whitmire also returning to the
floor. The final vote was 20-11 (just short of two-thirds). No further action was
taken on voter ID in the 2007 session after the verification vote failed under
the two-thirds rule.
Before the 2009 session, where voter ID would again be on the agenda,
Lt. Governor Dewhurst again reached out to Democrats in the Senate who had
opposed legislation in 2005 and 2007. This was to no avail, as opponents
remained entrenched. At the beginning of the session, to avoid the two-thirds
rule that had thwarted legislation in 2007, the Senate adopted a rules change
that allowed voter ID legislation to proceed under a simple majority vote
instead. The rules change was made by majority vote. Senator Shapleigh
raised two points of order objecting to the rules change, but
Lt. Governor Dewhurst overruled them “[b]ecause the rules of the Senate
permitted a majority of the Senators to change the Senate rules, so . . . [this
change] was entirely within the tradition and rules of the Senate.” According
to Karina Davis, the Senate Parliamentarian, the Senate has only designated
two categories of bills for such special treatment since 1981: redistricting and
voter ID. Notably, both of these categories have to do with elections. This
makes sense, as such matters cut to the very heart of how a representative
democracy will function and concern the “highly political judgments,” Bartlett
v. Strickland,
556 U.S. 1, 17
,129 S. Ct. 1231, 1245
(2009) (citation omitted),
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for which two-thirds agreement is unlikely. Further, even though the two-
thirds rule has been suspended by special treatment in only these two
categories, the legislative history of the Senate is replete with examples since
World War II of Lt. Governors who got the Senate to pass the blocker bill,
thereby enabling majority votes on later legislation under the Senate’s normal
rules. 23
Beginning on March 10, 2009, the Senate held a 23-hour hearing on the
proposed bill that lasted until 6 AM the next morning, at which members of
the public could testify. At the hearing’s conclusion, the bill passed the Senate.
This time, however, the House would be the source of voter ID’s demise. House
leaders expressed a willingness to compromise, and included many so-called
ameliorative measures and a provision to delay implementation until 2013 of
whatever passed. Thwarted by opposition in both parties, House leaders
instead moved the bill the Senate passed. House opponents decided on a
strategy called “chubbing” to kill the bill. 24 This was successful, as House
opponents chubbed for 26 hours 25 over five days and prevented over 200 bills,
23 The 2009 rules change also provided that voter ID legislation would be referred to
the Senate Committee of the Whole (i.e. the entire Senate) rather than traditional committee
structures. More on that to come.
24 Chubbing in the Texas House is analogous to filibustering in the Texas Senate.
With a filibuster, a single senator speaks on a topic for a long amount of time in order to
prevent further consideration. House rules prevent filibustering, but allow any
representative the ability to speak for 10 minutes on any bill he favors. To chub,
representatives use their allotted 10 minutes to speak in favor of any and all legislation,
routine or not, that is considered before the target bill. When multiple representatives
combine their speaking privileges across multiple bills, they are able to run the clock out on
target legislation slated to be considered later in the session.
25 There are apparently no records kept on the historical number or length of chubs
in the Texas House, but information is kept on the number and length of analogous filibusters
in the Texas Senate. To put the 26 hour chub into context, witness in this case and former
State Senator Wendy Davis’s 2013 filibuster against abortion legislation lasted just 11 hours.
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including voter ID, from being passed. Governor Perry considered, but
ultimately decided against, placing voter ID on the agenda for the special
legislative session he later called.
After the 2009 session again ended without a bill’s being passed, voter
ID proponents decided that the 2011 session would be different. After
repeatedly reaching out to opponents, incorporating some of their
amendments/suggestions, and repeatedly being rebuffed by extraordinary
legislative maneuvering, proponents decided to pass whatever law they could
that was modeled after Indiana’s law that had been upheld by the Supreme
Court in Crawford 26 and Georgia’s law that had received preclearance from the
Department of Justice. The majority and the district court indict Texas for
supposedly being unresponsive to opposition needs and for introducing
increasingly strict bills. At least equally plausible is that proponents perceived
a legislative necessity in the face of intransigence on this “wedge issue that the
Democrats were not going to agree to regardless of the fact . . . [that] a super
majority of Texas voters [of all races] were in favor of Voter ID.” As the district
court put it, “the political lives of some legislators depended upon” voter ID’s
success. Veasey v. Perry,
71 F. Supp. 3d at 658
.
To that end, Governor Perry designated voter ID legislation as an
emergency. He said in February 2010: “I might as well put [the Legislature]
A 26 hour chub, were it a filibuster, would be good for the sixth longest filibuster in the
history of the Texas Senate and longest since the record (43 hours) was set in 1977. See
Filibusters and Chubbing, LEGISLATIVE REFERENCE LIBRARY OF TEXAS,
http://www.lrl.state.tx.us/whatsNew/client/index.cfm/2011/5/23/Filibusters-and-Chubbing
(last visited June 27, 2016).
26 As demonstrated by the Attorney General of Indiana as amicus in this case, the
Indiana and Texas laws are not meaningfully different. See Brief of the States of Indiana, et
al. as Amici Curiae at 12–16, Veasey v. Abbott, No. 14-41127 (5th Cir. Apr. 29, 2016).
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on notice today: We’re going to do voter ID in 2011. We can either do it early,
or we can do it late. [The Legislature’s] call.” The emergency designation
permitted, but did not require, voter ID legislation to be considered during the
first 60 days of the 2011 session. 27 It also meant that the Legislature could
reasonably believe it would be called back into a special session if voter ID
legislation was not passed during the regular session. Considering the
legislation early in the session, however, had a tactical advantage because it
would prevent opponents from chubbing as they had done in 2009. Both
Democrats and Republicans also thought that passing the legislation early in
the session would “get this issue behind them” so that there “wouldn’t [be] spill-
over on other issues” for which there was a chance of bipartisan cooperation. 28
Proponents also noted that opposition protestations to early consideration
were likely stall tactics similar to those employed in the prior three sessions.
The bill 29 was designated a priority of the Lt. Governor and accordingly
assigned a low bill number, but this does not “expedite consideration of the bill
in any way except for putting members on notice that it’s one of [the Lt.
Governor’s] priorities.” The majority takes issue with the Senate’s
consideration of SB 14 by the Committee of the Whole (i.e. the entire Senate)
rather than through its traditional committee structure. However, this was
done because the legislation was going to be considered on an expedited basis,
27Eminent domain legislation, along with perhaps a couple of other topics, were also
designated emergencies for the 2011 session.
28 Further, all of the emergency legislation was considered early in the 2011 session.
29 Actually, nine photo voter ID bills were filed in the Senate, but Lt. Governor
Dewhurst selected Senator Fraser’s and asked him to refile it as priority legislation. Senator
Fraser had been the Senate sponsor of previous bills that failed. That there were so many
bills filed demonstrates just how politically important voter ID legislation was.
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and this is a commonly used and effective way to disseminate information
about such legislation to the entire Senate. 30 Far from being “unusual,” as the
district court described it, Veasey v. Perry,
71 F. Supp. 3d at 648
, it had been
used for issues such as school finance and redistricting within the past decade
before 2011.
To avoid what happened in 2007, the Senate rolled forward the rule from
the 2009 session that allowed voter ID bills to be considered by simple majority
rather than two-thirds vote. The majority faults the Legislature for this, but
the decision is easily explainable on political grounds—the majority party
wanted to avoid the two-thirds rule that had blocked similar legislation in a
prior session. 31 Further, as just discussed, the Legislature could reasonably
believe that Governor Perry would call an emergency session to consider voter
ID legislation if not passed during the regular session. The two-thirds rule
does not apply during special sessions because blocker bills cannot be filed, as
30 Additionally, legislation considered in the Committee of the Whole can be referred
to the entire Senate after just 24 hours, so it is important to ensure the entire Senate has all
important information it needs.
31 As if further evidence is necessary to show that the suspension of the two-thirds
rule was for political motivations, and not racially discriminatory ones, it is notable that the
Texas Senate (by majority vote) completely did away with the two-thirds rule in the 2015
session. It is now the three-fifths rule, which has the effect of reducing from 21 to 19 the
number of Senators necessary to move legislation past a blocker bill. Under the new
threshold in the 2015 session, the Texas Senate was able to pass Republican political
priorities such as open carry, campus carry, moving the public integrity unit from the Travis
County District Attorney’s Office to the Texas Rangers, and an A-F grading system for public
schools. All of these bills had been designated, as SB 14 was in 2011, priority legislation by
the Lt. Governor and assigned correspondingly low bill numbers. Ironically, Democrats also
passed a few bills out of the Senate under the new three-fifths rule that would have been
blocked under the old two-thirds rule, including one that would make it easier for some state
employees to work from home and have more flexible work hours. See Aman Batheja,
Without Two-Thirds Rule, Senate Moving Patrick’s Priorities, TEX. TRIB. (May 19, 2015),
https://www.texastribune.org/2015/05/19/loss-two-thirds-rule-senate/.
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was the case in the 2011 special session that considered redistricting
legislation. Voter ID was going to be considered without the two-thirds rule
one way or the other. 32
This history thoroughly explains why voter ID legislation as eventually
contained in SB 14—which the majority dismisses as not “a problem of great
magnitude”—was considered before what the majority believes are other
“pressing matters of great importance to Texas.” In addition, the 2011 bill that
eventually turned into SB 14 contained several notable provisions. First, in an
effort to combat multiple types of voter fraud, a provision was included that
would have addressed voter registration fraud, in addition to just in-person
fraud that voter ID laws combat. This provision was removed because the
Senate has a one-subject rule that prohibited it from addressing this other type
of fraud in SB 14. Next, several provisions in SB 14 were inserted into prior
voter ID legislation at the behest of members of the Democrat minority. For
example, Senators Gallegos and Shapleigh were concerned about voter ID’s
impact on the elderly, so proponents inserted age exemptions into the version
of SB 14 that passed the Senate. Additionally, opponents’ concern for the law’s
impact on the poor during prior iterations of the bill led soon afterwards to the
elimination of charges for ID and underlying documents. Thus, contrary to
what the majority asserts, SB 14 was neither unresponsive to the concerns of
legislative minorities nor was there a lack of motivation to address other types
of fraud besides in-person fraud.
32 Additionally, in order to pass a budget, the two-thirds rule was suspended in the
2011 session by a procedural move different from that used to suspend it for SB 14. See Ross
Ramsey, Failed Budget Vote Threatens Texas Senate Tradition, TEX. TRIB. (May 3, 2011),
https://www.texastribune.org/2011/05/03/failed-budget-vote-threatens-senate-tradition/.
The majority reads way too much into the suspension of the two-thirds rule.
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7. Second guessing legislative priorities and why Texas Legislature
prioritized remedy for voter fraud without compelling evidence
Ignoring the legislative history of voter ID during three previous
legislative sessions, the majority chides the 2011 Legislature for prioritizing
SB 14 in a busy session without—in the majority’s view—sufficient evidence
that there is a problem of in-person voter fraud in Texas to justify SB 14. The
court critiques that SB 14 did not single out mail-in ballots for a special degree
of scrutiny. Of course, as the majority itself rightly notes, “[t]he Legislature is
entitled to set whatever priorities it wishes.” These gratuitous observations
about legislative prioritization are therefore beside the point as the federal
courts lack the expertise or authority to question a legislature’s prioritization
of various issues. Recall too, that the Legislature also wanted to address other
types of fraud, such as registration fraud, but was prevented from doing so
because of one voter ID opponent’s objection based on one-subject rules for
legislation.
More significant, however, in Crawford, the Supreme Court flatly
rejected the majority’s intimation that record evidence of voter fraud is
required to justify the State’s interest in preventing voter fraud. 553 U.S. at
195–97, 128 S. Ct. at 1619–20. Indeed, the Court upheld Indiana’s voter ID
law in Crawford although the record there contained “no evidence of any such
fraud actually occurring in Indiana at any time in its history.” Id. at 194. The
Court instead noted that “flagrant examples of such fraud in other parts of the
country,” occasional examples of more recent voter fraud, and Indiana’s
example of voter fraud in the 2003 Democratic primary perpetrated by
absentee ballots “demonstrate that not only is the risk of voter fraud real but
that it could affect the outcome of a close election.” Id. at 195–96. Crawford
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teaches that the prevention of in-person voter fraud is a valid legislative
purpose irrespective of the number of instances of voter fraud in the record.
Accordingly, neither the Legislature’s prioritization of SB 14 nor the majority’s
concern that there are few instances of proven in-person voter fraud in Texas
supports any reasonable inference that SB 14 was passed with racially
discriminatory intent.
8. “While cloaking themselves in the mantle of following Indiana's voter
ID law . . . the proponents of SB 14 took out all the ameliorative
provisions of the Indiana law”
The majority seeks to resist the import of Crawford by arguing that
Texas’s voter ID law is different because it lacks some ameliorative provisions
for indigents that were present in Indiana’s law. The majority takes issue,
generally, with the Legislature’s rejection of various amendments that would
have permitted additional forms of ID to be used and allowed the use of IDs
with irregularities. The majority also takes issue, specifically, with the House
of Representatives’ removal of Senator Duncan’s amendment, which would
have required a provisional ballot to be accepted if the person simultaneously
executes an affidavit stating that he or she is indigent and cannot obtain proof
of identification without paying the fee. See S.J. of Tex., 82nd Leg., R.S. 137–
38 (2011).
Setting aside the fact that the majority’s criticism amounts to second-
guessing the policy choices of the state legislature, the fact that the Legislature
did not adopt certain ameliorative amendments tells us nothing about why the
Legislature so acted. And it certainly provides no basis to infer that the
Legislature rejected these various amendments because it, collectively, was
motivated by racial animus; this remains true even if legislators knew that
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some of the proposed amendments would make it easier for indigents to obtain
ID. 33
Even if, notwithstanding Crawford, the presence or absence of an
indigency exception is a matter of constitutional significance, SB 14 does
contain ameliorative provisions for indigent persons. 34 Election identification
certificates, which may be properly used as a form of ID, TEX. ELEC. CODE
§ 63.0101 (West Supp. 2014), are available free of charge and have been since
the bill was signed into law, TEX. TRANSP. CODE § 521A.001(b) (West 2013).
The Legislature also passed SB 983, which eliminates the fee associated with
obtaining a certified copy of a birth certificate in order to obtain an EIC. TEX.
HEALTH & SAFETY CODE § 191.0046(e) (West 2015). These provisions eliminate
fees associated with obtaining the underlying documents necessary to obtain
the EIC. There is no showing whatsoever that the Legislature tried to
authorize EICs that in practice would not facilitate indigent voters. 35
33See Feeney,
442 U.S. at 279
,99 S. Ct. at 2296
(awareness of potential disparate impact is not enough to prove intent). Feeney also held that the legislature’s failure to pass a bill with less discriminatory impact cannot evidence invidious purpose: the courts are not empowered to disapprove laws under the Equal Protection clause for this reason.Id.
at 280–
81.
34To reiterate, the Indiana law and the Texas law really aren’t that different; and
many of the “ameliorative” provisions that were rejected were in fact contained in earlier
iterations of the bills introduced in 2005, 2007, and 2009, at the behest of Democrats, but the
Democrats opposed those bills anyway.
35Furthermore, while Texas may have a comparatively strict law in terms of what ID
may be presented, its election laws are quite permissive regarding encouraging voter turnout.
These provisions include: an approximately two week early voting period with no
restrictions, TEX. ELEC. CODE § 85.001(a), wide availability of voter registration applications,
see Request for Voter Registration Applications, TEX. SEC’Y OF ST., http://www.sos.state.tx.us/
elections/voter/reqvr.shtml (last visited June 28, 2016) (providing online voter registration
applications), and the flexibility of mail-in ballots without photo ID requirements for the
elderly and disabled, TEX. ELEC. CODE §§ 82.002–003. Taken in “context,” it is as easy, if not
easier, to register and vote in Texas than it is in many other states.
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9. “Contemporary examples of state-sponsored discrimination”
The majority asserts that “[t]he circumstantial evidence of
discriminatory intent is augmented by contemporary examples of State-
sponsored discrimination in the record.” It then goes on to cite several
examples, taken from the district court’s opinion, of alleged recent
discrimination by Texas against minorities. This recitation is riddled with
errors and on examination, disintegrates into forty-plus year old actions.
The majority first claims that “as late as 1975, Texas attempted to
suppress minority voting through purging the voter rolls, after its former poll
tax and re-registration requirements were ruled unconstitutional.” (citing
Veasey v. Perry,
71 F. Supp. 3d at 635
). Thus, the most “contemporary”
example that the majority or district court can cite was in 1975.
In its next attempt to find recent examples of intentional discrimination
on the part of Texas, the majority credits the district court’s statement that
“[i]n every redistricting cycle since 1970, Texas has been found to have violated
the VRA with racially gerrymandered districts.” (quoting Veasey v. Perry,
71 F. Supp. 3d at 636
& n.23). This assertion is just plain wrong. The district court cites five cases as support: LULAC v. Perry,548 U.S. 399
,126 S. Ct. 2594
(2006) (2000 census redistricting); Bush v. Vera,517 U.S. 952
,116 S. Ct. 1941
(1996) (1990 census redistricting); Upham v. Seamon,456 U.S. 37
,102 S. Ct. 1518
(1982) (1980 census redistricting); White v. Weiser,412 U.S. 783
,93 S. Ct. 2348
(1973) (1970 census federal redistricting); White v. Regester,412 U.S. 755
,93 S. Ct. 2332
(1973) (1970 census state redistricting). In LULAC v. Perry, the
Supreme Court applied Section 2 and upheld a majority-Black district but
struck down another district as dilutive against Latinos even though the Texas
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Legislature had drawn another majority-Latino district to remedy the dilution.
In Bush v. Vera, the Legislature’s plan received preclearance, yet the Court
found racial gerrymandering because the Legislature increased racial minority
voting power when it drew three new majority-minority districts and
reconfigured an existing one to make it a majority-Black district. In Upham v.
Seamon, the issues related to preclearance for two districts and a district
court’s power sua sponte to reject legislative choices. In White v. Weiser,
congressional districts drawn after the 1970 census were challenged on the
basis of the Constitution’s one-person-one-vote doctrine, see Reynolds v. Sims,
377 U.S. 533
,84 S. Ct. 1362
(1964), and the suit had nothing to do with race or
the Voting Rights Act. Only in White v. Regester, did the Court find that two
multi-member state legislative districts drawn in 1971 invidiously
discriminated against minorities. Thus, in its attempt to find that Texas is a
repeat violator of the Voting Rights Act in its decennial redistricting, the
majority and district court misstate cases.
The majority next faults Texas for the Department of Justice’s objection
under preclearance to at least one district in each of Texas’s redistricting plans
between 1980 and the present. To the extent this unattributed statement is
accurate, this is not probative of the legislature’s intent to discriminate against
minorities in 2011. Preclearance involved a “nonretrogression” standard, see
Beer v. United States,
425 U.S. 130
,96 S. Ct. 1357
(1976), that is far less
stringent than proving an intentional discrimination claim.
In short, the majority’s “contemporary examples” about Texas’s State-
sponsored discrimination are neither contemporary nor probative. 36
36 Both the majority and the district court, Veasey v. Perry,
71 F. Supp. 3d at 636
n.23, cite United States v. Texas,887 F. Supp.2d 133
(D.D.C. 2012) to say that two of the 2011
Texas redistricting plans (for the U.S. House and the Texas Senate) violated the Voting
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10. Many, “shifting” rationales for SB 14
The majority also criticizes the Texas Legislature because legislators
allegedly proffered various, “shifting” rationales for the law. Citing to the
district court’s opinion, the majority states that the reasons for the law “shifted
as they were challenged or disproven by opponents.” Of course, “legislators
and administrators are properly concerned with balancing numerous
competing considerations,” Arlington Heights,
429 U.S. at 266
,97 S. Ct. at 563
, so it would be unsurprising to hear legislators advancing different rationales for supporting a particular bill. In this case, however, the depositions of various legislators who voted in favor of SB 14 revealed a consistent purpose behind this voter ID law: to prevent voter fraud and thereby promote the integrity of the voting process; in the minds of some legislators this would improve public confidence and possibly increase voter turnout. 37 Preventing voter fraud and increasing public confidence are closely interrelated, Crawford,553 U.S. at 197
,128 S. Ct. at 1620
; to view the iteration of multiple Rights Act. Both note, however, that the D.C. District’s opinion in that case was vacated by the Supreme Court. Texas v. United States,133 S. Ct. 2885
(2013). Vacated opinions have no precedential or persuasive value. See Asgeirsson v. Abbott,696 F.3d 454, 459
(5th Cir. 2012). In any case, the Texas Senate redistricting plan was enjoined by a three-judge panel of the Western District of Texas and a substitute plan issued by the court in its place that fully corrected any legal infirmities in it. The 2013 Texas Legislature subsequently repealed its original plan and adopted the court’s interim plan in full. See generally Davis v. Abbott,781 F.3d 207, 209-13
(5th Cir. 2015), cert. denied,136 S. Ct. 534
(2015). The remediation
undertaken by the Texas Legislature undermines any inference of an intent to discriminate,
especially when its original plan could have been kept in place after the Supreme Court
vacated the D.C. District’s opinion.
37 See supra note 17 (collecting statements of purpose from the deposition testimony
of legislators who were proponents of SB 14).
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related purposes as a cover for hiding a racially discriminatory intent, as the
majority asserts is a plausible inference, makes no sense.
The majority’s contention that the legislators shifted between these
purposes when the rationales were “challenged or disproven by opponents,”
similarly proves too much. By this statement, the majority, like the district
court, presumably means that the Legislature did not, in its view, provide
enough evidence to support its proffered interests in the face of opponents’
criticism. See Veasey v. Perry,
71 F. Supp. 3d at 653
(“Although these rationales are important legislative purposes, there is a significant factual disconnect between these goals and the new voter restrictions.”). This insistence upon concrete evidence of the effectiveness of legislation is, as previously noted, clearly contrary to Crawford.553 U.S. at 204
,128 S. Ct. at 1624
; cf. F.C.C. v. Beach Commcn’s, Inc.,508 U.S. 307, 315
,113 S. Ct. 2096, 2102
(1993) (“[A] legislative choice is not subject to courtroom fact-finding and
may be based on rational speculation unsupported by evidence or empirical
data . . . . Only by faithful adherence to this guiding principle of judicial review
of legislation is it possible to preserve to the legislative branch its rightful
independence and its ability to function.”). The “shifting rationales” theory,
then, offers no support for an inference that the Texas Legislature
intentionally discriminated against minorities in passing SB 14.
11. All legislative measures have conspired to work against African-
American voters
Dr. Burton opined that, no matter the party in power, political interests
have always worked to deny African-Americans the right to vote: “every time
that African-Americans have, in fact, been perceived to be increasing their
ability to vote and participate in the process there has been State legislation
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to either deny them the vote or at least dilute the vote or make it much more
difficult for them to participate on an equal basis as Whites in the State of
Texas.”
This conclusion is belied, however, by materials that Dr. Burton himself
cites. For instance, the Supreme Court found that Democratic-led redistricting
in the 1990s led to racial gerrymanders favoring African-American and
Hispanic Congressional candidates. See Bush v. Vera, 517 U.S. at 956–57, 116
S. Ct. at 1950–51. The Supreme Court rejected a claim that early 2000s
Congressional redistricting around the Dallas area diluted the African-
American vote. See LULAC v. Perry, 548 U.S. at 443–47, 126 S. Ct. at 2624–
26. In addition, an expert report credited by the district court showed African-
American and Hispanic representation among state legislators to generally
align with their proportion in the total population. See Veasey v. Perry,
71 F. Supp. 3d at 638
.
12. “Seismic demographic shift” spurred action by Republicans “currently
in power”
The legislative history recited above shows that the struggle over SB 14
centered on partisanship, not race. Partisanship, however, is not racism, nor
is it a proxy for racism on this record. The majority, however, connects
“extraordinary procedural measures accompanying the passage of SB 14 to a
‘seismic demographic shift,’” and suggests that the Republicans in power could
gain a partisan advantage through a voter ID law. But to repeat: even the
district court acknowledged that a photo voter ID requirement had wide
multiracial, bipartisan public support.
Indeed, the Supreme Court in Crawford specifically held that
partisanship in Indiana’s voter ID law, also passed on a straight party-line
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basis, could not defeat the law’s purposes in deterring fraud.
553 U.S. at 204
,128 S. Ct. at 1624
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