*1 of Texas State NAACP AFFIRMED. The case Conference department HR Legisla- Branches; American further Mexican proceedings. is REMANDED Repre- Caucus, merits House of no view on ultimate tive Texas express We sentatives, Plaintiffs-Appellees court should or on what decisions rule on the make remand. We v. summary-judgment record basis of appeal. filed in this Secretary State; Cascos, of Carlos Texas McCraw, Capaci- in his Official
Steve ty Depart- the Texas as Director of Safety, ment of Public Defendants- Appellants Mendez, Jr.; Taylor; Lenard Eulalio VEASEY; Hamilton; Sergio Marc Jane Estrada; Espino Estela Garcia Lionel Burns; Carrier; Deleon; Floyd Anna Lara; sa; Margarito Martinez Maximi Montez; Penny Pope; Oscar Michael Lara; Del na La Union Martinez Ozias; Koby League Ortiz; of United Entero, Incorporated, Pueblo Plain Citizens; Mel American John Latin tiffs-Appellees lor-Crummey, Gandy; Ken Gordon Evelyn Brickner, Plain Benjamin, v.
tiffs-Appellees Cascos, Texas; of Texas Carlos State County Hispanic State; McCraw, Secretary of Texas Association of Steve County Commissioners, Judges Capacity as Director of his Official Plaintiffs-Appellees Intervenor Department Public of Safe Texas ty, Defendants-Appellants Greg ABBOTT, Capacity in his Official 14-41127 No. Texas; Cascos, of Carlos Governor of United Court Appeals, States Secretary State;
Texas State Fifth Circuit. McCraw, Texas; Official Steve his De Capacity as Director of the Texas July partment Safety, Public Defen dants-Appellants America,
United States
Plaintiff-Appellee Young League Ed
Texas Voters Fund; Clark, Imani In
ucation Plaintiffs-Appellees
tervenor Texas; Cascos, Texas
State of Carlos
Secretary State; McCraw, in Steve Capacity as Director
his Official Department of
the Texas Public Safe
ty, Defendants-Appellants
Plaintiff-Appellee United States of Amer- ica. Ifill,
Sherrilyn Ann Aden, Leah Camille Esq., Natasha Korgaonkar, Esq., M. Janai Nelson, Esq., Ross, S. Deuel Christina A. Swarns, NAACP, Legal Defense & Edu- Fund, Inc., York, NY, cational New Kelly Dunbar, Patrick Sonya Lebsack, Ludmilla WilmerHale, DC, Washington, for Interve- nor Plaintiffs-Appellees Imani Clark and League Young Texas Voters Education Fund. Rios, I,
Rolando Leo Esq., Law Office of Rios, Antonio, TX, Rolando L. San Intervenor Plaintiff-Appellee Texas Asso- ciation Hispanic County Judges and County Commissioners.
Ezra D. Rosenberg, Esq., Jon Marshall Greenbaum, Director, Esq., Lawyers’ Law, Committee for Rights Civil Under DC, Washington, Rudd, Amy Lynne Sen- Litigating ior Attorney, Lindsey Beth Co- han, Dechert, L.L.P., Austin, TX, Preston Henrichson, Esq., Edward Law Offices of Dunn, Esq., Chad Wilson Brazil & Henrichson, P.C., TX, Preston Edinburg, Dunn, Houston, TX, Baron, Neil G. Dickin- Perez, Myrna Director, Deputy NYU son, TX, Bone, Joshua James J. Gerald Law, School of Brennan Center for Jus- Hebert, Esq., Danielle Lang, Marie Cam- tice, York, NY, Rios, I, New Rolando Leo Center, paign Legal DC, Washington, Ar- Rios, Esq., Law Office of Rolando L. San Derfner, Altman, mand G. Esq., Derfner & Antonio, TX, for Plaintiff-Ap- Intervenor L.L.C., Charleston, SC, Hebert, J. Gerald pellee Mexican Legislative— American Alexandria, VA, Esq., Plaintiffs-Appel- Caucus, Representatives. Texas House of Hamilton, Marc Veasey, lees Jane Sergio Deleon, Carrier, Burns, Floyd Anna Mi- Rosenberg, Esq., Lawyers’ Ezra D. Montez, Ortiz, Penny Pope, chael Oscar Law, Rights Committee for Civil Under Ozias, Koby League of United Latin DC, Washington, Rudd, Amy Lynne Sen- Citizens, Gandy, American Ken Gordon Litigating Attorney, Lindsey ior Beth Co- Benjamin, and Mellor-Crummey. John han, Dechert, L.L.P., Austin, TX, Vishal Clark, Perez, Agraharkar, Myrna Jennifer Erin Flynn, Helene Esq., Anna Marks *8 Director, Deputy Law, NYU School of Baldwin, Diana Flynn, Katherine Robert Justice, York, Brennan Center for New Koch, Monta, Acheson Christine Anne NY, for Plaintiff-Appellee Texas State Justice, Department U.S. Rights Civil Conference of NAACP Branches. —Appellate Section, DC, Div. Washington, Smith, III, John Albert Assistant At- Wayne Doggett, U.S. Robert Texas RioG- torney, Attorney’s Office, Aid, Austin, Southern Legal Incorporated, rande Texas, Christi, TX, TX, Garza, District of Corpus Antonio, TX, for Jose San Marinda Law Office of Aid, Siegel, Martin Jonathan Dalen, Legal Texas RioGrande van Houston, TX, P.C., for Siegel. Martin J. Brownsville, TX, for Plain- Incorporated, White, Dana Debeau- Amici Mark Curiae Espinosa, Estela Garcia tiffs-Appellees Villarreal, Guidry. voir, Carolyn and Oscar Estrada, Del Pueblo La Union Lionel Martinez Entero, Margarito Incorporated, Lechner, Esq., Mountain Steven James Lara, Eulalio Lara, Martinez Foundation, Lakewood, CO, Marimina Legal States Mendez, Jr., Taylor. and Lenard Legal States Amicus Curiae Mountain for Foundation. Dunn, & Esq., Brazil
Chad Wilson Duncan, Duncan, Schaerr Kyle Stuart TX, Lang, Houston, Danielle Marie Dunn, DC, L.L.P., Amicus Washington, for Curi- DC, Center, Washington, Legal Campaign Rep- and Twenty-Seven U.S. Senators ae Evelyn Brickner. Plaintiff-Appellee for from Texas. resentatives Solicitor, Keller, Campbell J. A. Scott Fisher, Solicitor Gener- Thomas Molnar General, Mat- Barker, Solicitor Deputy for the al, Attorney General Office of the Frederick, Deputy Solicitor Hamilton thew IN, Indiana, for Indianapolis, State of Shah, Counsel, Of- General, Senior Prerak Alabama, Indiana, Amicus Curiae States for the State General of the Solicitor fice Kansas, Arkansas, Arizona, Georgia, Loui- TX, Texas, Austin, Defendants-Ap- for Oklahoma, Ohio, Nevada, siana, Michigan, Cascos, Abbott, State Greg Carlos pellants Carolina, Utah, and Virginia, West South Texas, and Steve McCraw. Wisconsin. Joseph, Washington, Lawrence John Director, Ho, Young, Sean Dale Edwin Eagle Forum Edu- DC, Amicus Curiae for Founda- American Civil Liberties Union Fund. Legal Defense cation and York, tion, Project, Voting Rights New Kirk, Cooper & Cooper, Charles Justin Robertson, Attorney, NY, Rebecca L. DC, P.L.L.C., Texas, for Amicus Cu- Washington, Liberties Union American Civil Houston, TX, ,for riae Lawrence Crews. Amici American Curiae and American Civil Civil Liberties Union Counsel, Wydra, Bonnie Chief Elizabeth of Texas. Liberties Center, Accountability Constitutional Butler, Rotenberg, Alan Caitriona Marc DC, Con- Amicus Curiae Washington, for Thomson, Electronic Aimee Fitzgerald, Accountability stitutional Center. (EPIC), Information Center Privacy Kohrman, Attorney, B. Senior Daniel DC, Elec- for Amicus Curiae Washington, Washington, Litigation, AARP Foundation Center. Privacy Information tronic DC, Associa- Amicus Curiae American for tion of Persons. Retired STEWART, Judge, and Chief Before SMITH, JONES, JOLLY, DAVIS, Consovoy McCarthy Consovoy, William OWEN, CLEMENT, PRADO, DENNIS, VA, Park, P.L.L.C., Amicus Arlington, HAYNES, ELROD, SOUTHWICK, Project Representation. on Fair Curiae COSTA, HIGGINSON, GRAVES, Milbank, Leblanc, Esq., Andrew M. Judges. Circuit L.L.P., Tweed, Hadley McCloy, & Wash- DC, HAYNES, joined by Amici Curiae LatinoJustice ington, Judge, Circuit DAVIS, PRLDEF, of Latino STEWART, Judge, Association National Chief GRAVES, SOUTHWICK, PRADO, Edu- Appointed Officials Elected and full; Federation, HIGGINSON, Judges, Fund, His- Circuit Hispanic cational COSTA, Judges, Association, Circuit Mi Familia DENNIS panic National Bar *9 Part II.A.1 and joining in all Fund, Latino. but Education Voto Vota concurring judgment.1 in the certificate by could cast a ballot signing an affidavit and presenting one of multiple (“the State”) In Texas passed Sen- (“ID”), forms of identification including a (“SB 14”), ate Bill 14 requires which indi- expired license, current or driver’s a photo present viduals to one of several forms of ID (including employee IDs), or student a photo identification in order to vote. See bill, utility statement, a bank paycheck, a a R.S., May Act of Leg., 82d ch. government showing document the voter’s 123, 2011 Tex. Gen. Laws 619. Plaintiffs address, name and or mail addressed to filed suit challenging constitutionality the voter from a government agency. Id. and legality of the law. The district court (West 2010). 63.001, §§ 63.0101 racially held SB was enacted with a discriminatory purpose, racially has a dis- implementation With the of SB Tex- effect, tax, criminatory poll is a and uncon- began requiring present voters to cer- stitutionally right burdens the to vote. See tain specific forms of identification at the Veasey Perry, 71 F.Supp.3d (1) polls. These include: a Texas driver’s (S.D. 2014). Tex. appealed The State personal license or identification card is- decision, a panel of our court by sued Department Safety Public in part, part, affirmed vacated in and re- (“DPS”) that has not expired been for findings. manded the case for further (2) days; more than 60 a military U.S. Abbott, (5th Veasey 796 F.3d identification card with a photograph that 2015), reh’g granted, Cir. en bane expired has not for been more than 60 2016). peti- The State filed a (3) days; a citizenship U.S. certificate with tion for this court to rehear the case en (4) photo; a a passport that has not banc, granted. which we (5) been expired days; for more than 60 a carry license to a handgun concealed is- Background
I. by sued expired DPS has not been (6) days; more than 60 an Election A. Senate Bill 14 (“EIC”) Identification Certificate issued implementation Prior to the of SB DPS that has not expired been for more Texas voter could in person cast ballot days.2 § than 60 63.0101 Tex. Elec. Code presenting registration certificate —a (West 2014).3 Supp. document upon registra- mailed to voters 63.001(b) 13.142, §§ tion. Tex. Elec. Code “may SB 14 states that DPS not collect (West 2010). [EIC],” appearing Voters without the a fee duplicate or a [EIC] represents opinion requires Part II.A.1 as written photo 3.SB 14 also the name on the However, plurality majori- of a of the court. "substantially ID to be similar” to the voter’s ty agrees of the court that there are infirmities 63.001(c) registered § name. Tex. Code Elec. opinion regarding in the district court’s Plain- (West 2014). Supp. If the names are not iden- claim, discriminatory purpose requiring tiffs’ similar, substantially tical but are the voter judgment reversal of the district court’s sign must an affidavit that the voter and the passed racially SB 14 was with a discrimina- registered are voter one and the same. Id. If tory purpose. majority A of the court also similar, substantially the names are not that, agrees given the court’s decision to re- provisional submit a ballot and judgment verse the district court’s as to this days go county regis- within six must to the claim, the court should remand to the district verify trar with additional ID to his or her reweigh court with instructions to the evi- 63.011, 65.0541(a) identity. 63.001(g), §§ Id. light opinion. dence in of this (West 2014). Supp. required 2. We refer to these forms of identifi- cation under SB 14 as “SB 14 ID.” *10 Transp. 521A.001(b) (West during § Bill the 2015 passed Senate
Tex. Code rules 2013), promulgate DPS to this and allows session and eliminated fee. legislative 521A.001(f); EIC, § an id. obtaining for disability who have a are ex- Persons EIC, rules § receive an DPS To 521.142. photo requirement from SB 14’s ID empt ei- present voter to require registered a they provide regis- if are able the voter (B) (A) ID, primary of two form ther: one disability their trar with documentation of (C) ID, form of secondary or one forms of Security Social Administra- from the U.S. supporting two of pieces ID and secondary Department of Affairs. tion or Veterans 37 Tex. Admin. Code identification. 13.002(f) (West § Supp. Tex. Elec. Code 15.182(1). Thus, any an application for § 2014). persons may by provi- Other vote either one Texas driver’s requires EIC they without a ID if photo ballot file sional card that identification personal or license religious a asserting either ob- affidavits years, than two expired less has been being or jection photographed asserting documents, following accom- or one of or destroyed that their SB ID was lost supporting forms of identifi- panied by two a occurring a result of natural disaster (1) of a original copy or certified cation: an days easting a ballot. Id. within appropriate from the state birth certificate who Additionally, § voters will be 65.054. (2) copy of original an or certified agency; or older as the date election Department of State Cer- a States United § early by mail. 82.003. Birth for a citizen born vote Id. U.S. tification (3) abroad; citizenship or naturaliza- is SB 14 ID provide If a voter unable to (4) an photo; a or tion without papers a poll, provisional the voter can cast at the a order copy of court or certified original executing stating after an affidavit ballot and date of person’s name containing eligible and registered that the voter indicating change an official birth and 63.001(a), (g). § The vote if Id. counts vote. 15.182(3).4 § gender. Id. name and/or county 14 ID to the produces the voter SB statutory provi- May Before days within six of the election. registrar SB 14 imposed from $2 sion distinct §Id. 65.0541. certifi- copy a certified of a birth fee for $3 county Safety to in- requires registrars cate.5 Health Code Tex. & ID voter applicants of the new re- (West 2010). form § Ás discussed be- 191.0045 registration issuing when judg- quirements issued its low, the district court after certificates, 15.005, § requires id. and both argu- oral panel and the conducted ment case, Secretary registrar Legislature State and voter in this the Texas ment 37 Tex. Among supporting identifica- Veteran’s Administration cards. the forms Admin. cards, 15.182(4). registration are: voter school rec- § tion Code ords, policies that are at least two insurance old, years li- identification cards or driver’s Department Health Services of State by another state that have not censes issued ("DSHS”) waived most of the fees obtain- expired years, for more than Texas been two EIC, but ing get a birth certificate registrations, military titles or or boat vehicle separately required provision the Bureau of forms, records, cards, Security W-2 Social Statistics, registrars, county Vital local licenses, government expired Texas driver’s issuance $2 to collect fee for the clerks cards, military depen- agency unexpired ID certificate, copy per- of a birth certified cards, pa- dent identification Texas or federal registrars county clerks to local mitted forms, mandatory federal in- role or release $1 impose an additional fee. Tex. & Health cards, cards, Medicare or Medicaid mate (e), (h) (West 191.0045(d), § Safety Code records, membership immunization tribal tribes, 2010). federally recognized cards *11 county post racially of each with a website to with a discriminatory purpose SB and 31.012(a). § requirements online. Id. 14’s racially has a discriminatory effect. Plain- requirements must placed The also be tiffs claim that photo also SB 14’s ID § prominently polling places. Id. 62.016. requirement places a substantial burden Additionally, Secretary of State must on the right fundamental to vote under the “conduct statewide effort to educate vot- Amendments, First and Fourteenth and ers regarding require- the identification poll constitutes a tax under the Fourteenth 31.012(b). voting.” § ments for Id. The dis- Twenty-Fourth and Amendments. The trict court found that SB allocated a State defends SB as a constitutional one-time expenditure of million for vot- $2 requirement imposed prevent in-person Veasey er education.6 v. Perry, 71 voter fraud and increase voter confidence F.Supp.3d at 649. and turnout. The district court nine-day conducted a History
B. Procedural
bench trial at which
expert
dozens of
began enforcing
The State
SB 14 on
lay
by
witnesses
deposition
testified
or in
25,
plaintiffs
June
The
2013.7
and interve-
trial,
person. Following that bench
the dis-
“Plaintiffs”)
(collectively,
nors8
filed suit
trict court
a lengthy
compre-
issued
against
enjoin
Defendants to
enforcement
opinion
hensive
holding:
14,
of SB
and their suits were consolidated
SB 14 creates an unconstitutional bur-
before one federal district court
in the
right
den on the
to vote [under the First
Veasey
Southern District
Texas. See
v.
Amendments],
and Fourteenth
has an
Perry, 71
F.Supp.3d
632. Plaintiffs claim
impermissible
effect
photo
require-
SB 14’s
identification
against Hispanics and African-Ameri-
ments violate the Fourteenth and Fif-
cans
Section
of the Voting
[under
teenth Amendments to the United States
Act],
Rights
Constitution and
2 of
and was
Voting
imposed
Section
with an
Rights Act because SB 14 was enacted
discriminatory purpose
unconstitutional
one-quar-
6. The
supplemental
district court also found that
time the
en banc briefs were
'$2
ter of the
million was earmarked to re-
filed in this case. "A claim becomes moot
type
search what
of voter education was need-
parties
legally cognizable
when
lack a
‘the
"
Veasey Perry,
F.Supp.3d
ed.
v.
at 649.
interest
the outcome.’ Nat’l
Ass'n of
Rifle
Am.,
McCraw,
Inc. v.
344 n.3
three-judge
7. A
district court declined to
2013)
McCormack,
(quoting
Powell v.
grant judicial preclearance to override the
89 S.Ct.
23 L.Ed.2d
Attorney
United States
General’s denial of
(1969)).
League argues
that it
Texas
Holder,
preclearance. See
Texas
standing
many
nonetheless has
because
(D.D.C. 2012),
144-45
vacated
inability
Texas voters whose
to obtain SB 14
remanded, - U.S. -,
gave
League's standing
rise to
Texas
(2013).
permanent and
the applicant
is re-
record] states
of
provi-
forcement
the voter identification
record for
questing
purpose
the
the
14],
1
and
through
sions
SB
Sections
[of
identification
obtaining an election
certifi-
&
22.”9id. at 707
Since
through
n.583.
25, 2015,
R.S.,
May
Leg.,
cate.” Act of
84th
it struck the State’s voter
law so close
130,
ch.
2015 Tex. Sess. Laws Serv. Ch.
election,
impending November 2014
to the
(codified
as an
to
amendment
Tex.
the
ordered
to
the district court
State
Safety
191.0046(e))
§
Code
Health &
enforcing
to
the voter identifica-
“return
983”).
(hereinafter “SB
SB 983 became
requirements
in-person voting
for
tion
(codified
immediately.
§§
Id.
effective
2-3
immediately prior to the enactment
effect
Safety
as note to
Tex. Health
&
Code
14.”
at 707.
implementation
and
of SB
Id.
Tex.,
191.0046);
§
see also S.J. of
84th
jurisdiction
retained
to
The district court
(2015)
R.S.,
Leg.,
(reporting
1449-50
unan-
any
legislation
to pre-
review
remedial
and
Senate);
passage
imous
out
the Texas
administrative
any
remedial meas-
approve
Tex.,
R.S.,
Leg.,
4478-79
H.J. of
84th
ures. Id. at 707-08.
(2015)
0,
(reporting passage by
2014,
appealed
In October
the State
the
House).
absent, in
one
the Texas
member
judgment,
panel
district court’s final
and a
that “a
provides
registrar
local
granted the State’s emergen-
of this court
county
issues a
record”
clerk who
birth
cy
stay
appeal, ground-
pending
motion
required for an EIC
would otherwise
ing
primarily
impor-
its decision
“the
be
to collect
fee for that record
entitled
quo
maintaining
tance of
the
on the
status
payment
“is
the amount
entitled
Veasey
Perry,
eve of an election.”
v.
Ser-
[Department
[of
State Health
2014).
890, 895
Plaintiffs
F.3d
25, 2015,
May
Leg.,
vices].” Act of
84th
emergency motions before
filed
the Su-
(codified
R.S.,
ch. 130
an amendment
Court,
to have
preme
seeking
this court’s
Safety
191.0046(f)).
§
Tex.
&
Code
stay
vacated. The
Court denied
Health
funds to
appropriate
SB 983 did
motions
stay
these
to vacate
the free
spread public awareness about
judgment.
Veasey
district court’s
See
—
-,
9,
parties
addressed
birth records.
Perry,
U.S.
(2014). Therefore,
claims
potential
effect of SB 983 on their
L.Ed.2d
this court’s
123,
R.S.,
23,
16,
enjoin
Leg.,
§§
ch.
2011 Tex.
9. The district court did not
enforce-
82d
623,
16, 23,
24 has
24 in
Gen.
Section
625].
ment of sections
and
accordance
Laws
expired,
purposes
severability
related
with SB 14’s
clause. Sections 16
but once
increasing
penalties
registrars
use certain
23 relate
which the voter
could
levels
funds
under the election code. See
offense
for election code violations. See
disbursed
16, 2011,
R.S.,
(West
May
Leg.,
82d
ch.
§
historical
Act
64.012
note
Tex. Elec. Code
2014)
May
§
Laws
Supp.
&
2011 Tex. Gen.
[Act
court,
if,
full
panel
by July
both the
and our
but noted that
before
passage.10
we have
for its
court
opinion
accounted
had “neither
an
issued
on the
merits of the case nor issued an order
appeal
Considering the State’s
from the
vacating or
modifying
stay
current
or-
judgment,
panel opinion
court’s
district
der,
aggrieved
party
seek
[could]
inter-
legal
held that the district court committed
im relief from
Supreme] Court by
th[e
its
conducting
errors
filing an appropriate application.” Veasey
therefore,
analysis;
purpose
vacated that
—
Abbott,
——,
opinion
court’s
portion
district
(2016).
cert.
(2015).
265,
Arlington Heights,
L.Ed.2d
However, “[r]acial
S.Ct. 555.
discrimination
framework articulated
apply the
We
purpose,
need
be one
and not even
Heights Metropoli
Village Arlington
primary
of an official action for
purpose,”
Housing Development Corp., 429 U.S.
tan
Brown,
violation to occur. United States v.
252, 265-68,
L.Ed.2d
S.Ct.
(5th
2009) (citation
420, 433
Cir.
561 F.3d
(1977),
SB 14
whether
determine
omitted). “Legislative motivation or intent
discriminatory purpose.
Al
passed with
question.” Prejean
is a
fact
paradigmatic
properly
court
cited the
though
district
2000)
Foster,
504, 509
framework,
we
Arlington Heights
conclude
infirm,”
(citing
Cromartie,
Hunt v.
526 U.S.
are
necessitat
“findings
that some
point.
a remand
Pullman-Stan
143 L.Ed.2d
ing
on this
(1999)).
dard,
292, 102
“Proving
the motivation behind of-
is evidence that could the district L.Ed.2d (1985). finding purpose, court’s reweighing
we must
remand
Arlington
evidence.11See
In
the Su
Heights,
id.
*14
preme
set out
Court
five nonexhaustive
Legal
District
Errors
factors
a particular
to determine whether
Analysis
Court’s
discriminatory
made with
decision was
a
racially
purpose,12
courts must
discriminatory
perform
“Proof of
a “sen
required
intent or
is
a
sitive
into such
purpose
inquiry
to show
circumstantial
See,
dissenting opinions suggests
post
challenge.
e.g.,
11. One of the
faces an ex
facto
Doe,
84, 92-93,
opinion
majority
that the
flouts the
of
Smith v.
538 U.S.
123 S.Ct.
canon
1140,
(2003);
by reaching
that disparate impact. Pers. Adm’r of
type
One
of evidence on which the
Feeney,
Mass. v.
district court relied in seeking to discern
(1979).
The State’s stated
in passing
heavily
relied too
on the evidence of State-
14 centered
protection
of the sancti-
sponsored discrimination dating back hun
ty
voting,
fraud,
of
avoiding voter
years,
Shelby
Holder,
dreds of
Cty. promoting public
voting
confidence in the
cf.
—
-,
2612, 2628,
process. No one
U.S.
133 S.Ct.
questions
legitimacy
(2013)
of these
(noting
“history
concerns as motives. The
L.Ed.2d 651
that
dis-
1965”).
agreement centers on whether SB 14 was
did not end in
Arlington Heights
quirement, Veasey
Neither
Perry,
F.Supp.3d
nor our decision
at
Price,
658, 701,
requires
in
945 F.2d
smoking
direct evi-
gun
so the lack of a
is not
dence. The
surprising.
point
district court here allowed exten-
The latter
makes it even
discovery
legislative
sive
important
of
materials which
more
that Price noted direct evi-
yield
"smoking gun.”
did
not
stronger
district
dence would be
than circumstantial
found,
evidence,
court
required
could have
but
was not
”[t]o
but
the extent that the
find,
smoking
that
gun sup-
justifications
this lack of a
[legislators’]
advanced in
testi-
ports
position
the State’s
here.
pretext
That was the
not
monies] do
demonstrate a
for
Price,
Price,
situation
we addressed in
intentionally discriminatory
and in
actions.”
herein,
that case we found no clear
in
error
We
that
Protection
Equal
tricts violated the
Clause
“long
and that
there
“history” was
ago”
Amendment
of the Fourteenth
because
examples
were
contemporary
some more
factor,
plans
the
predominant
race was the
by
Plain
of discrimination identified
the
criteria,
redistricting
ignored traditional
of
tiffs in the district court.
evidence
explained
their
could
shapes
by
relatively recent discrimination cited
product
as the
of unconstitutional racial
probative
the
more
district court is
of dis
See,
found
e.g., Veasey
gerrymandering.
The second case
criminatory intent.
limit,
particular
id. at 2625-27. Nor
"Relatively
does not
imme-
time
see
recent"
mean
time,
say
in
contemporaneous. Shelby County
we.
the closer
the
diately
em-
do
Suffice it to
relevance,
always recogniz-
"things
greater
while
phasized
changed”
have
that
since
the
Act,
(even "long-ago history”) pro-
Rights
ing
history
passage
Voting
the
of the
1965
2625,
modern-day events.
vides context to
133 S.Ct. at
but it did not articulate
Hunter,
in
affecting Hispanics
challenging.
the more
voter dilution
471 U.S. at
congressional
district.
redrawing
one
S.Ct.
As United States v.
Perry
League
explains:
Latin Am. Citizens v.
O’Brien
(LULAC),
399, 439-40, 126
548 U.S.
S.Ct.
Inquiries
congressional
into
motives or
(2006).
Although
165 L.Ed.2d
purposes are a
matter.
hazardous
When
citing
of the historic discrimi
discussions
the
is simply
interpretation
issue
the
Texas,
Hispanics in
'the
against
nation
legislation, the Court
look
will
to state-
its
conclu
Court did not base
decision on a
by legislators
guidance
ments
for
as to
intentionally
legislature
sion that the
dis
purpose
legislature,
because
upon ethnicity.
criminated based
Id. at
decision-making
benefit
sound
440-42,
Instead,
bill’s statements, of weight to such as those discriminatory purpose. passed legislators, individual made the bill in 637, 71 655- Perry, v. Veasey after law.”); has see also question become Ed- 57. 578, n.19, Aguillard, v. 596 wards 482 ... repeatedly Court has “The (1987) 510 107 S.Ct. 96 L.Ed.2d of analogous context cautioned—in (“The previously post- has found the Court too against placing statutory construction — meaning enactment elucidation of the of a contemporaneous emphasis on the much to be of little relevance deter- statute City v. opponents.”17Butts views of a bill’s legislature mining the intent of the con- (2d York, 779 147 Cir. New F.2d of of the temporaneous passage stat- 1985) alia, v. inter Ernst & Ernst (citing, ute.”). theory, probative in even While n.24, Hochfelder, (after-the-fact) stray those statements (1976)). too have 1375, L.Ed.2d 668 We by legislators voting a few made individual such statements are entitled held that not the best indicia of for SB be Corp. v. weight.” Mercantile Tex. “little Legislature’s Opera- the Texas intent. See Sys., 638 Fed. Reserve Bd. Governors of Push, (finding “isolat- tion F.2d at 408 (5th A Feb. Cir. Unit F.2d by ambiguous made ... ed statements 1981). such The Second Circuit considered compelling were evidence legislators” that “the speculation in Butts and held discriminatory purpose); law’s of that ... few [a] and accusations of speculations Lubbock, F.2d City Jones an infer- simply support do not opponents 1984) (5th “judge (refusing to in- n.3 Cir. the kind of racial animus discussed ence of by] from the ... a [made tent statements in, Heights.” example, Arlington single legislative body). member” of the (citation omitted). agree We F.2d at court relied upon Because district that the court erred and conclude district infirm, we the district evidence conclude is conjecture opponents in relying opinion court’s cannot stand as written. to the of those 14 as motivations then, question, The next is whether we supporting the law.18 legislators for the judgment reverse and render State in placed The district court also remand to district court with in- upon type post- reliance appropriate structions. testimony which courts routine enactment Re-Weighing Remand for 2.
ly disregard as unreliable.
Barber
See
Evidence
Thomas, 560 U.S.
(2010) (“And
in
analysis
whatever
court’s
177 L.Ed.2d
While
district
infirmities,
legislative
legal
one
some
the rec-
force
attaches to
terpretive
contained
legislators
appropriate
suppressing voting by
opposing
American
not an
are
in favor
purposeful
of color.
finding
citizens
for a
foundation
dis-
crimination.
Here,
problematic
spec-
evidence is the
opposing legis-
and conclusions of the
ulation
analogous
In
different but somewhat
suggesting
We are not
that the bill
lators.
discrimination,
employment
we
realm of
have
credibility
they
opponents lack
because
are
rejected
testimony
similarly
plaintiff's
legislators,
credibility
ques-
opposing
is
or she believed that the motivation of his
he
Testimony
found to
tion for the trier
fact.
employer
other
or her
was racial or
discrimi
opponents of the bill about
be credible from
News, Inc.,
Byers
Morning
v. Dall.
nation.
by proponents
statements
conduct and
would
2000).
426-27
simply
highly probative.
point
Our
speculation
conclusory accusations
*18
sup- mentary”
ord also contained evidence that could
principle and instructed that it is
port
finding
discriminatory
intent. See not
purview
produce
this court to
an
Meche, 777
(noting
F.3d
246-47
re-
“independent consideration of
totality
view of a district court’s findings following of the
291-92,
circumstances.” Id. at
trial
findings
bench
are
“[w]here
S.Ct. 1781.
infirm because of an erroneous view of the
Pursuant
guidance,
this clear
our in-
law, a
proper
remand is the
course unless
quiry is whether “the record permits of
permits only
the record
one resolution of
only one resolution of the factual issue.”
issue”). Therefore,
the factual
under Pull-
292,
Id. at
free
job
an at-will
If
were fired from
discrimination as
sons.
Jane
overtly state
they do not
once,
conclude that
they proffer
being
might
late
we
long
so
as
and
purpose
their
actions.
until
learned that
firing
legitimate,
reason for their
was
we
neutral
seemingly
Jane,
ignore
reality
Joe,
very
job
same
as
would
who has the
approach
This
penalty.
mask ra-
can and do
numerous times with no
reasons
was late
that neutral
intent,
recognized
Evans,
a fact we have
rate simply replied of SB he “I in your opinion, for the use of the poll am not advised.” Id. at 646-47. Another tax in Texas? deposition senator admitted at his that he A The stated rationale the State other proponents of SB 14 voted to was to prevent voter fraud.
table numerous amendments meant to ex- Q And how about the stated rationale IDs, pand types accepted expand the use Texas of re-registration operating hours of DPS stations issu- requirements purges? and voter IDs, ing voter delay implementation of SB A The stated rationale was voter fraud. 14 until an impact study had complet- been Burton, Q your Dr. expert opinion, ed, and other ameliorative measures. He did these devices actually respond to proponents and other large- SB have sincere concerns or incidents —inci- ly explain rejection refused to of those dences of voter fraud? amendments, both at the time and in sub- A No. sequent litigation. Id. The district court noted this attitude out “was of charac- Here, too, there is evidence that could sponsors major
ter for
bills.” Id. at 647.
support
finding
Legislature’s
race-neutral reason of
integrity
ballot
of-
The district court also heard evidence
fered
the State is pretextual. This bill
only
that SB 14 is
tenuously related to the
subjected
was
departures
radical
from
legislature’s
purpose
stated
of preventing
procedures.
normal
Consideration
pro-
example,
fraud. For
the record
cedural departures is a difficult inquiry,
shows that
history
Texas has a
justify-
hand,
because on the one
“[departures
ing voter suppression efforts such as the
procedural
the normal
sequence ...
tax
poll
literacy
tests with the race-
might afford evidence that improper pur-
neutral reason of promoting ballot integri-
poses are
playing
Arlington
role.”
ty. See id. at 636 & n.24. Dr. Vernon
Heights,
at
Texas fraud out person impersonation Legislature great population and the faces leading up million cast in the decade governing. Legis- The Texas votes challenges 14’s id. at regular passage.24 for less to SB 639. The lature meets for sessions dissenting opinions testifying personal knowledge into about their re- 22.One of the calls garding procedural sequence question behind maneu- the normal rationale these legislators interpretations passing opposing legislation and and draws different vers However, merely speculating the motives the evidence. it is about of SB inferences from proponents. province 14’s the exclusive of the court to district Pullman-Standard, finding. engage in this fact power 23. also has the U.S. at We ac- Texas Governor 1781. Legislature, special which knowledge multiple rea- call sessions of inferences could evidence, sonably topically are limited to the confines of the be drawn from the record' summoning Legislature. drawing proclamation but we must leave the of those infer- IV, § Additionally, 8. ences to the district court. one of art. Const, Tex. dissenting opinions disagrees with reli- Representative testified opposing legislators’ Fischer ance on factual testimo- 24. ny Legislature access to data from the 2008 procedural about the unusual nature of had considering when pass and 2010 elections SB maneuvers utilized to There is that "of the millions of votes opposing legislators between which showed clear difference (different) nothing against to combat mail-in ballot had upheld bill did been chal- fraud, although record shows that evidence Crawford, lenge in the proponents SBof reality of fraud is much potential 14 took out all the provisions ameliorative in the mail-in than greater ballot context See, law. e.g., Indiana id. at 651-52 in-person voting.25 Id. at (noting stripped the Texas House an indi- many pressing gency exception
In the context of the
that had
been added
great importance
Texas that
Senate);
matters
SB 14 in
Texas
Frank
cf.
legislative irregular-
result in these
did not
(Frank II),
Walker
386-87
ities,
say
we cannot
that the
leads
record
2016) (noting that
indigency
one factual
in this case.
conclusion
may be
exception
necessary for
who
voters
Pullman-Standard,
292, 456 U.S. at
“high
face
hurdles” to obtaining required
say
cannot
district
S.Ct. 1781. We
that the
photo identification and that
the Indiana
simply
legislators
had to
accept
court
law the
considered in
Court
con-
Crawford
*22
really
were
so concerned with this almost
indigency
tained
exception).26
such an
problem. Against
backdrop
nonexistent
This circumstantial evidence of discrimi-
warnings that
have a
SB would
dis-
natory
augmented
is
by contempo-
intent
parate impact on
and would
minorities
rary
examples
State-sponsored discrimi-
(then extant)
fail
likely
preclearance
the
nation in the record. For
example,
amendment
requirement,
after amendment
record
that as
shows
late as
Texas
rejected. Veasey
Perry,
was
suppress
attempted
minority voting
650-52, 698, 701-02,
at
F.Supp.3d
708-10.
rolls,
through purging the voter
its
cloaking themselves in
mantle of
after
While
law,
following Indiana’s
which
poll
re-registration
voter
former
tax and
require-
elections,
nursing
in both of
there were
exemption.
cast
those
tains a
home resident
Furthermore,
perhaps
person
generous
four referrals for in
Indiana
is more
"one,
impersonation"
acceptance
and that
two indi-
expired
if not
its
of certain
Of
ID.'
here,
charged
officially
particular
... had been
and
relevance
viduals
Indiana's accom-
accepted
imper-
indigents,
responsibility
requiring
an
.have
modation
while
trip
county
sonation.”
to the
additional
election office
exemption,
require an
tó claim an
does not
25. This statement is not intended as a criti-
obtain,
actually
indigent
pay any
or
fees
ballots,
allowing
mail-in
which are a
with,
cism
qualified photo
associated
ID. This
enabling voting
it
vital means
when would
significant,
is
as demonstrated in
case.
this
impossible
be difficult or
for some
otherwise
Crawford,
also a
to a
There was
reference in
people
right
per-
law,
exercise their
to vote in
“greater public awareness” of the
simply
acknowledgement
It is
an
that the
son.
prompt
quali-
which would
voters
secure
supporting
reform
evidence
the need for
was
ID,
opposed
fied
to a relative dearth of
as
in-person voting
on the
minimal
side.
publicity
instruction in
and
Texas.
(foot-
Perry,
Veasey
F.Supp.3d
dissenting opinions
claims that
26. One
omitted) (citing
§
*23
became sub-
objected
omitted).
the law when Texas
to
Veasey
generally
v.
ject
preclearance.
to
See
opinions quarrels
dissenting
F.Supp.3d at 635 & n.18.
of the
Perry, 71
29.One
issue,
findings on this
with the district court’s
LULAC,
noted
Court also
28.
In
the
reviewing
three-judge panel
Texas’s
a
but
history of dis-
“long, well-documented
Texas’s
con-
redistricting plan reached the same
1981
rights
upon
touched
the
crimination that has
clusion:
Hispanics
regis-
to
African-Americans
1975,
special pre-
Congress
the
extended
In
ter,
vote,
in the
participate
to
otherwise
to
Voting Rights
provisions
439,
LULAC,
clearance
process.”
548 U.S. at
electoral
Richards,
decision was
of 1965 to Texas. This
Act
(quoting
v.
861
Vera
those rationales preventing included non- finding that the cloak of ballot integrity voting, though citizens from even two hiding could be purpose. more invidious approved forms of identification under SB As we have explained, absence of di- Veasey are available to noncitizens. rect evidence such as a “let’s discriminate” Perry, It is likewise - email cannot be and is not dispositive. proponents relevant that SB 14’s refused Because we do not know how much the why they
to answer
not allow
would
evidence
infirm weighed
found
in the dis-
expected
amendments
to ameliorate the
calculus,
trict
disparate impact
simply,
of SB 14.
court’s
we cannot
af-
Id.
650-51.
However,
firm the decision.
not an
is
appellate
place
weigh
court’s
evidence.
supporting
Further
the district court’s
Price,
(“[T]he
We therefore
public
disrupt
...
so as not to
the elec-
pro-
wider
“reexamin[e]
district court to
Indeed,
findings
process.
among
Plaintiffs’
tion
underlying
dis-
bative evidence
weighed
made
the district court was
criminatory
purpose
claims
evidence,
14 at
campaign
for SB
contrary
public
accord
education
against the
“grossly
of trial
insufficient.”
legal standards we
time
appropriate
with”
Veasey
Perry,
at
at 649.
Veasey, 796 F.3d
503-
have described.
Richmond,
States,
necessary in the time left before
04;
Equally
v. United
City of
cf.
early
in late
is an
voting begins
October
(1975) (“[W]e
adequate campaign
explain
confi-
not
SB
L.Ed.2d 245
should be
evidentiary
and the
14 but also court-ordered amendments
of the
record
dent
mindful
voter identification rules. We are
of the lower court’s consideration
adequacy
it.”).
litigation
appeals
that future
to this
have not asked to offer
parties
evidence,
that,
possibilities.
and we
court are also distinct
conclude
additional
issue, the district court should
as to this
Additionally,
recognize
we
the burden
not take additional evidence. The district
majority opinion places
our
on the district
to,
required
entertain
may,
court
but is not
implement
remedy
court to
for the dis-
argument prior
issuing
additional oral
criminatory
so little
effect violation with
on
findings. The district court
re-
its new
Therefore,
time,
Part
II.B.
see infra
discriminatory pur-
make its
mand should
election,
disruption
upcoming
of the
avoid
have,
the record we
pose findings based on
rely
equitable principles
we
on
conclud-
and the instructions
guided by
opinion
this
focus
ing that the district court should first
court about the
given the district
we have
fashioning interim relief for the dis-
findings.
infirmities in its initial
legal
criminatory effect violation in the months
short,
general
November 2016
though.
Supreme
leading up
Time is
effect,
concern of this court
has,
July
primary
20 deadline
election. The
set
Court
to ensure
act,
and the district court should be
for this court to
after which will
discriminatory
ame-
14’s
effect is
Veasey
for relief.
v. Ab-
entertain motions
requires
as
time for
bott,
Time is also needed
liorated
Section
may very
agree
discriminatory
court
well
plaintiffs
the district
could sue
dissenting
points
precedent
made
impact after
Court
had
some
opinions,
of our role in
required
showing
pur-
we must be mindful
process. We are
the court to make
pose
Rep.
under Section 2. See S.
No.
instance,
(1982),
findings
reprinted
in the first
in 1982
factual
15-16
*25
177,
support
than one
Congress
evidence could
more
U.S.C.C.A.N.
192-93.
acted in
record
We
therefore remand for
precedent to make it easier
conclusion.
must
the face of this
evidence,
minority plaintiffs
discriminatory
reweighing
rather than con-
to combat
of
reweighing
Pull-
Congress
ducting
ourselves. See
laws—not to make it more difficult.
that
291,
man-Standard,
plaintiffs’ ability
243 election, respect Voting Act, 2 Rights pro- 2016 while which the November Legisla by choices made ing policy any “voting qualification scribes prereq- or Perez, v. passing Perry ture in SB voting standard, ór practice, uisite to or — U.S. -, 940-41, 934, 132 181 S.Ct. procedure ... which results in a denial or (2012) curiam). (per 900 L.Ed.2d of abridgement right any ... citizen to vote on account of race 52 or color.” take the We instruct district court to 10301(a). § U.S.C. Unlike discrimination time to reevaluate the evidence requisite pursuant brought claims to the Fourteenth Legisla and determine anew whether the Amendment, Congress has that clarified with a intent in discriminatory ture acted 2(a) by Section can proved violations of “be unnecessary 14. But enacting SB it is showing discriminatory effect alone.” court to this task the district undertake Gingles, Thornburg v. U.S. until after November 2016 election. See (1986); S.Ct. L.Ed.2d 25 also Gonzalez, see Purcell U.S. 10301(b).32 (2006) (election § In per proscribing 52 U.S.C. laws 166 L.Ed.2d effect, despite discriminatory Congress continue is that have a mitted to unresolved disenfranchisement); authority sues related to see Fif- pursuant exercised its to the Sims, Reynolds Amendment, also teenth which that states (not (1964) 12 L.Ed.2d right “[t]he of citizens of the United States ing that court immediate withhold not be abridged vote shall denied or forthcoming relief as not to disturb a so by any the United States or ac- state on election). If the concludes district court race, color, count or previous condition passed with a SB servitude,” discriminato gives Congress intent, ry the district court fashion should “power to enforce this article appropri- remedy in accord with its appropriate Const, ate legislation.” amend. XV. provided, however, any findings; rem not be after edy will made effective until Gingles 1. The Factors and Two-Part 2016 election. November Framework Discriminatory
B. Effect prove To that a law has a discrim under allege inatory
Plaintiffs has a effect Section Plaintiffs challenged effect in of Section violation must show (a) provides opportuni- 32. Section in full: in that its members have less ty (a) members voting qualification than other electorate prerequisite No or standard, voting proce- political process practice, participate or or in the imposed by any applied dure shall be or representatives elect of their choice. political State or a manner subdivision in protected which extent to members of a abridgement results in a which denial or been State class have elected to office in the right any citizen of the United States political or subdivision is one circumstance color, on account of race or in to vote Provided, may be That which considered: guarantees contravention of the forth in set right nothing this section establishes a 10303(f)(2) title, provided section protected of a have members class elected (b). in subsection equal proportion to their in the numbers *26 (b) (a) violation of is estab- A subsection population. if, totality based on the of circum- lished fully § 10301. We 52 U.S.C. address more stances, pro- political it is shown that the adopted by Su- below how factors leading cesses to nomination or election in Gingles preme and the stan- Court other political or are not State subdivision apply language of dards we effectuate the open equally participation by to members Section 2. protected by of a class of citizens subsection 244 (a) minorities, Framework The Two-Part on but burden a imposes
law
whether
white
torical conditions
regularly utilize
impact,
nation such
S.Ct.
cern whether
endorsed factors
current
enunciated
at
sentatives.”
Gingles,
also that
or structure
410-11,
opportunities
voters to elect
see,
or historical
478 U.S. at
such
“a certain electoral
(emphasis
e.g., Operation
Gingles,
interacts
a
statistical
law has
Congress
to cause
impact
(“the Gingles
it violates Section
enjoyed
44-45,
conditions of discrimi-
their
added).
with social
a
preferred repre-
Court
an
analyses to dis-
Push,
to determine
a
law, practice,
While
inequality
product
at
black
has
factors”)
and his-
47,
courts
2752.
F.2d
also
2,33
work
Circuits
claims.
ticipate
produce discrimination
tected class
tory
[and]
elect
class,
or
caused
other members
[2]
cal conditions
[1]
procedure
employed
[T]hat
[T]he
burden
The framework has two
meaning
We now
representatives
to evaluate Section
by or linked to social
in the
challenged
burden must
have less
on members of
must
by the Fourth
adopt
that members of the
that have or
political process
of the electorate
impose a discrimina
standard, practice,
opportunity
against members
of their
two-part
2 “results”
a
and histori
and Sixth
elements:
protected
currently
part
and to
choice,
frame
than
pro-,
par
be
class.
protected
of the
applied the
courts have often
Although
v. North
League Women Voters
analyze claims of vote
of N.C.
Gingles factors
2014)
(4th
Carolina, 769 F.3d
Cir.
dilution,34
past pre-
because
perhaps
(citations
quotation marks
and internal
there is little au
requirements,
clearance
—
denied,
U.S. -,
omitted),
cert.
test
to determine
thority
proper
on the
(2015);
see
191 L.Ed.2d
to vote has been denied
right
whether
Husted,
interacts with social and historical condi
subdivision bear the effects of discrimi-
tions to cause an
inequality
opportu
education,
nation in such areas as
em-
enjoyed by
nities
black and white voters to
health,
ployment and
which hinder their
preferred representatives.”).
elect their
ability
participate
effectively
political process;
(b)
Gingles
Factors
political campaigns
whether
have
As did the Fourth and Sixth Cir
been characterized
overt or subtle
cuits,
Gingles
we conclude that the
factors
racial appeals;
should be
help
used to
determine whether
the extent to which members of the
there
link
sufficient causal
between the
minority group have been elected to
disparate
imposed
burden
and social and
public
jurisdiction.
office
produced by
historical conditions
discrimin
words,
ation.35 In other
fac
Gingles
36-37,
(quoting
Id.
These factors include: significant whether there is a lack [8.] any history 1.the responsiveness part extent of official on the of elected discrimination in political particularized the state or officials to the needs of right subdivision that touched the minority group[; the members of the minority group regis- members of the and] Voters, Husted, tion); League (noting
35. See
Women
[9.] with the racial current discrimination subdivision’s use of and political state or challenged law. effects of the prerequisite ly disparate voting qualification, such standard, en practice proce Gingles factors involves Applying voting, or analysis, under gaging in a multi-factor dure is tenuous. has determinative which no one factor Id. 45, Gingles, 478 U.S. at weight. exclusive, and are not These factors fact Certainly, analysis depen this is any particu- requirement “there is no contexts, Yet, in we many similar dent. or that a proved, factors be lar number of multi-factor, totality-of- employ frequently way one or the point them majority of analyses highly that are the-circumstances 45, (quoting 2752 S. at other.” Id. See, v. Ba e.g., fact bound. United States 29). every Not factor Rep. No. (5th tamula, 237, F.3d 240-42 Cir. 823 every case. These fac- will be relevant (en banc) 2016) totality of (analyzing the guidance from Con- provide tors salient a to determine whether the circumstances Court on how to gress Supreme and the by a lack of prejudiced was defendant and past current effects of examine the plea during guilty advice competent and how those ef- discrimination current v. Catholic Diocese process); Cannata Id.; challenged a law. fects interact (5th Austin, 169, 175-76 Cir. 700 F.3d Voters, 769 F.3d League Women 2012) (adopting “totality-of-the-circum Husted, 245; F.3d at 554. 768 analysis to whether an stances” determine (c) Analysis Appropriate for This of the employee" purposes is a minister for Challenges 2 Effect
Section
abrogating the
exception
ministerial
employed by
three-part
previously
test
fac
Gingles
that the
argues
The State
court,
Court
because
context,
in this
inapposite
are
tors
rejected
rigid,
the use of a
specifically
two-part test as it was
apply the
we should
issue);
test for this
Stewart v.
bright-line
in Frank v.
Circuit
applied in the Seventh
Comm’n,
321, 330-
Transp.
Miss.
586 F.3d
(7th
Walker,
754-55
Cir.
2009)
—
(5th
multi-factor
(applying
Cir.
31
-,
2014),
denied,
135
cert.
analyze
supervisor
whether a
cre
tests to
(2015).
L.Ed.2d 638
191
or retali
ated a hostile work environment
apply
if
argues that
we
State also
against
employee
reporting
ated
test and find
two-part
Gingles factors
harassment,
analyzing
and in
sexual
case, all man
2
in this
a Section violation
factor of the hostile work environment
last
struck
laws
ner of neutral election
test,
totality
the circum
looking to the
Gingles
that the
disagree
down. We
.fac
to determine whether the harass
here,
stances
good
and we have
inapposite
tors are
sufficiently
pervasive
severe and
ment
gloomy
that the State’s
reasons
believe
conditions).36
employment
to alter
forecast is unsound.
frame-
two-part
conclude that
We
test and
Gin-
Use of the two-factor
together serve as
Gingles
factors
challenges to work
gles factors limits Section
Inc.,
whether
to search was
Refinery,
to determine
consent
In re Am. Int'l
36. See also
2012)
of Elmendorf,
(5th
voluntary);
City
(rejecting per
Clevelandv.
F.3d
Cir.
2004)
(5th
(employing
Cir.
“totality
F.3d
approach in favor of a
se
totality-of-the-circumstances analysis to deter
deciding
approach
whether
circumstances
workers were volunteers for
mine whether
third-party payment of a retainer creates
case);
purposes
Fair Labor Standards
bankruptcy
disqualifying
in a
interest”
NLRB,
Root,
Jenson,
Act);
F.3d
&
Inc. v.
F.3d
Brown
United States v.
(5th
2003)
totality-
2006)
(applying a
Cir.
(employing a
test
multi-factor
way
a sufficient and familiar
to limit
Voting Rights
tions of the
byAct
giving
*29
states a
pass
free
to enact needlessly
courts’ interference with “neutral” election
bur-
impermissible
densome laws with
racially
truly
laws to those that
have a discrimina-
discriminatory impacts. The Voting Rights
tory
2
impact
Voting
under Section
of the
Act was
prevent just
enacted to
such invid-
Rights Act. Just because a test
is fact
ious, subtle forms of discrimination. See
driven
multi-factored does
not make it
Roemer,
380,
Chisom v.
406,
111
dangerously
application.
limitless
2354,
(1991) (Scalia,
Id. and are likely therefore more rely The district court likewise concluded public transportation. Id. at 672-73. 14 disproportionately impacts the result, As a poor likely are less to have poor, who are disproportionately minori- a driver’s license and greater face obsta ties. Id. at expert 664-65. It credited testi-' cles in obtaining photo identification. Id. mony that eligible 21.4% of voters earning Even obtaining an poses EIC an obsta $20,000 year ID, less than per lack SB 14 *33 cle—the district court credited evidence compared to only 2.6% of earning voters that hundreds of thousands of voters face $100,000 $150,000 between year. per round-trip travel times of 90 minutes or Id. at 664. respondents Lower income more to the nearest issuing location EICs. were also likely more to lack the underly- Id. at eligible 672. Of voters without access ing get documents to an EIC. Id. Dr. Jane vehicle, Henrici, large to a percentage trips faced anthropologist professorial at George Washington lecturer of three hours or more University, to obtain an EIC.44 explained that: Id. panel,
44. Before the
the State
political process”
attacked the
view of
assessing
the
in
entirety
findings
claims,
of the district
n.15,
court's
on the
Section
478 U.S. at
grounds that the lower court did not distin-
itself,
S.Ct.
language
and Section 2’s
guish
statutory
between
provisions
SB 14’s
proscribes voting practices "imposed
which
Department
Safety's imple-
and the
of Public
applied”
they produce
or
such that
a discrimi-
menting regulations. Although an issue raised
result,
10301(a).
natory
§
52 U.S.C.
More-
one,
appeal,
for the first time on
like this
is
over,
previously
we have
affirmed a district
waived,
Co.,
Fruge v. Amerisure Mut. Ins.
finding
discriminatory impact
court's
2011),
argument
F.3d
this
where the district court found the law dele-
likewise
pro-
fails on the merits. The State’s
gated too much discretion to local officials.
posed rule of law would contradict both Gin-
Push,
Operation
trict
predictions
redistricting
in
a con-
implicated
cern that
not
here.
It is
is
Id.
dispute
does not
the
the State
Although
purview
court’s
well within the district
findings,
factual
identifies
underlying
minorities are
legal
dispropor-
dis-
assess whether
errors
the
purported
several
only the
trict
We address
tionately
by
change
court’s decision.
the law
affected
challenges
length here-
most
See,
relevant
analyses.
e.g., Op-
based on statistical
the
in.45
district court did
conclude
We
Push,
Using
F.2d at 410-11.
eration
determining
that SB
reversibly
not
err
methodologies
accepted statistical
to esti-
by2
im-
disparately
14 violates Section
composition
mate the
of Texas vot-
racial
minority voters.
pacting
type
does
the
require
ers
not
race-based
First,
predictions that
the Court referenced
disputes
pro
the
the State
Strickland,46 Instead,
using
analyses to de
this case is
priety of
statistical
more
composition of the No-
termine the racial
Push,
akin to
in which this
Operation
on
Relying
Match List.
Bartlett v. Strick
approved using surveys
court
and “inde-
land,
pendent
project
tests” to
the
statistical
(2009),
argues
the State
L.Ed.2d 173
newly
on
impact minorities of
enacted vot-
using
foreclosed
statis
Supreme Court
registration
er
Id.
procedures.
analysis to determine the racial com
tical
Second,
relies on
the State
Strickland
position
group
of voters. That is a
argue that
the canon of constitutional
cautions
mischaracterization. Strickland
against
avoidance militates
against
require
requiring
standards that
adopting
correct,
assuming
brought by
conveying
challenges
State in-
the State is
45. Other
analyses
disparities
way
suggests
argument that
re-
the State
does
clude its
court
upon
change
analysis.
the district
are unreliable
lied
The district court did
of data—the State’s voter
concluding
dispropor-
because one source
not err in
that SB
registration database —does not list the race
tionately impacts Hispanic and African-Amer-
State
ethnicity
voters. The
contends that
ican voters.
expert
have
on
should
relied instead
Plaintiffs'
Finally,
argues for the
the State
first time
Department
provided
of Public
data
appeal
disparate impact
that there is no
(“DPS”).
rightly
Safety
district court
re-
where,
here,
gross
Anglos
number of
jected
argument. The DPS
did
database
296,156 people
without SB 14 ID—
—almost
identify
registrants themselves as
not allow
African-American,
totals
number of
His-
May 2010. As
Di-
"Hispanic” until
the Texas
panic,
and "other” voters without
14 ID—
conceded,
number of
rector of Elections
312,314 people.
required
have never
Courts
registered
"exponentially
Hispanic
voters
minority
gross
number of affected
voters
suggest.
higher”
DPS records
than the
would
gross
Anglo
to exceed the
number of affected
*34
refusing
fault the district court for
We cannot
See,
Voters,
e.g., League
voters.
Women
769
of
data, particularly
rely
to
in
on inaccurate
Frank,
233;
768 F.3d
F.3d
see also
at 753-
light
to
the State’s failure maintain accu-
of
percentage
(comparing
minority
54
of
vot-
rate data.
qualifying
percentage
ers
ID to the
without
ID).
Anglos
We decline
without such
to ad-
suggests
Additionally,
convey-
State
that
argument
dress this
raised for the
possession
compara-
first time
ing
disparity in ID
Frank,
misleading.
appeal.
on
See Leverette v. Louisville Ladder
percentages
tive
768
Co.,
(5th
1999).
(stating
purveying
that
183
341-42
Cir.
F.3d at 755 n.3
data as
F.3d
comparative percentage
is a
"misuse”
46. These
predictions
problematic
included in-
“produces a number of little relevance to the
Instead,
quiries
types
like: "What
of candidates have
problem”).
State
believes a less
minority
supported together
white and
voters
Anglo,
deceptive
is to state that
method
2%
past
in the
and will those trends continue?”
Hispanic,
and
African-Ameri-
5.9%
8.1%
Strickland,
registered
lack SB
U.S. at
disparity. The district of-state, birth certificates due or amended supporting the evidence goes through ion on birth births and errors detail, to nontraditional and we will not findings great in its (4) certificates; long distances and other here for the that evidence repeat all of getting regis made to a travel issues that brevity. Veasey v. and clarity of sake many problematic for trar and DPS office at 667-77. How- F.Supp.3d Perry, 71 (5) Plaintiffs; disability exemption a strict ever, show that the district examples a few (6) 8; of a burdensome alternative 4 and regard- concrete evidence court relied on id. of the Plain voting absentee. See Some by Plain- burdens faced ing the excessive along multiple axes tiffs faced difficulties findings. This evidence making in its tiffs 14 ID and vote attempting get to SB analysis by credited expert personified person. regarding SB 14’s dis- court the district
criminatory effect. First, disproves the the record evidence have failed plaintiffs claim that “the State’s
(c) Imposed of the Burdens Evidence faces a identify single individual who Plaintiffs SB on voting obstacle to because substantial thing, 14.”49For one the district court SB Plaintiffs testified The individual turned multiple in at found that Plaintiffs were burdens many specific they faced vote, they attempted to and away when 14 ID or vote. to obtain SB tempting Plaintiffs were not offered Plaintiffs some of those that “[t]he court found district attempt to resolve provisional ballots [i]mpact” [d]emonstrate[d] (1) Plain- at 668. One of those axes, the diffi the issue. Id. including: along several Carrier, tiffs, Floyd “was well-known voting obtaining an EIC culty of polling place, at his the election workers poor of Texas’s ID because proper (2) ballot provisional but was not offered program; this implementation Id. permitted and was not to cast vote.” necessary to underlying documents cost of (3) ID; help of his son in Floyd Carrier had other SB an EIC or obtain Veasey Perry, persons as.” exempts disabled certain 48. SB 14 13.002(1)). requirements, they § photo (citing if submit This fact from its Tex. Elec. Code exempted with written application to be places the increased burden SB 14 evidences documentation, (1) including: "a statement List Plaintiffs and others on the No-Match secretary of state prescribed a form funding devoted to because of the lack not have a form of applicant does that the Although educating this is not an over voters. codi- acceptable” under SB 14's identification itself, whelming require burden in and of 63.0101, § provision, Tex. Elec. fied Code implementation provide poor one ment and (2) from either "the United documentation plaintiffs to clear obstacle for disabled more Security evi- Social Administration States person attempting vote in without SB 14 dencing applicant has been determined case, In this some of the Plaintiffs who ID. disability,” "from or documentation have exception were turned could have used Department Veterans Af- States the United polls aware away at the and were never made disability evidencing applicant has a fairs of it. percent.” rating least Tex. Elec. Code 13.002(1). § The district court found initially panel that heard this 49. Before the Mendez, Carrier, Tay- Espinosa, Plaintiffs case, claim— the State made an even bolder disability exemp- "may qualify SB 14's lor that SB 14 that the Plaintiffs "failed to show tion,” Plaintiffs were not "[t]hese but that single person voting.” prevented a This they exemption when made aware of this false, experi- demonstrably as the claim is DPS or other relevant offices” went to Floyd Carrier and Sammie of Plaintiffs ences January voters "[a]s show, disability exemption Tex- Louise Bates see granted a were infra. *36 ID, they rely to obtain SB but four Plaintiffs almost attempting exclusively on impossible public transportation. an almost bureaucratic One of Plain- faced these tiffs, they get required Gandy, an hour-long, morass when tried Ken faces one- underlying way trip documentation. Due to these to reach the nearest DPS office. and edu- training obstacles and the lack of See id. at 673. Plaintiffs Espi- Estrada and requirements, Floyd family SB 14’s nosa cation about use and friends for transporta- tion, completely prevented they Carrier was but each face “a 60-mile round- voting. (noting trip See id. at 668 & n.268 ride to the nearest DPS station.” Id. throughout underly- their efforts to obtain The State failed to any contest of this ID ing qualifying documentation and for evidence, except suggest these Carrier, Floyd no one informed the Carri- by Plaintiffs could vote mail. The district EIC). ers about clearly court did not in finding err
Plaintiff problem voting Bates faced a similar mail-in is not an acceptable substi- reported to the polls, in-person when she as she was tute for voting the circum- existing that her insuffi- presented by unaware stances this case.50We are attempted by cient until in person. criticizing she vote no means making Texas for point, available, At that an voting was too late to cast mail-in it represents an ballot, and important bridge many absentee she was not able to who would oth- 14 ID in provi- difficulty appearing obtain SB time to cure her erwise have in person. Instead, sional because could afford ballot she we conclude that it is not the her purchase Mississippi equivalent in-person voting birth certifi- for those cate at its cost on her fixed who are able and want in person. to vote $42 $321 n.115, monthly voting income. Id. at 649 & 665. Mail-in complex proce- involves a Benjamin Plaintiff Gordon was not able to dure that cannot be done at the last min- at the (describing obtain EIC DPS because he was ute. See id. at 688-90 the com- get his Louisiana plex process obtaining submitting unable birth certifi- ballot).51 hefty for the deprives cate fee online. Eventual- mail-in It also voters of $81 ly, get help they normally his sister was able to his birth would receive person certificate in a trip through filling polls, on out ballots at the which Plain- Louisiana, but he Eagleton why was unable to make that tiff Naomi cited as a reason trip before the 2013 Id. at she prefers person. elections. to vote Id. at 689. Benjamin provisional cast a ballot that Elderly plaintiffs also face difficul- Many went uncured. more stories like mailboxes, getting ties to their like Plain- proliferate pages these in the of the dis- Carrier, tiff who has to be driven to his opinion. trict court’s Id. at 667-77. post mailbox because it is at the local Traveling to DPS offices to obtain office. at 673. Plaintiffs EICs Id. Seven posed many they an additional obstacle further testified are reluctant to vote Plaintiffs. The district court found that mail due to the increased risk of fraud effect, opine signed application early voting 50. We do not under Sec- to the possible balloting tion of other absentee county clerk in the voter’s “on or before arrangements, only inadequacy on the day day,” 18th before election Tex. Elec. Code voting mail-in in these circumstances to miti- 86.008(a), plus receiving § an absentee ballot gate discriminatory impact or eliminate the mail, filling correctly, out the ballot SB 14. ensuring proper party state receives the day, ballot on or before id. election example, voting requires 51. For mail-in ob- 86.004-.007, 86.008(b). §§ taining submitting correctly filled-out *37 256 implementation pro- of the EIC mail-in bal- sufficient” who harvest people
because of not elderly. many Id. at 676-77. the fact that Plaintiffs did gram, lots from testimony expert required credited or voter court know about EIC district significant fraud is a away polls, at the that showing being mail-in until turned ballot voter fraud. Id. at in-person his certifi- paid threat —unlike one Plaintiff birth $22 voting, mail-in 689-41, Finally, with he was not told about the cate because for last- ability to account available, voters lose then reduced-cost alternative like candidates developments, minute implementation with the and other issues race, target- primary out of dropping 14). in the find no clear error of SB We information other dissemi- and ed-mailers finding district court’s State’s the election. Id. at 689. right before nated in efforts resulted lackluster educational in the district clear error no We discern See, on Texas voters.52 additional burdens voting spe- mail-in finding that court’s at 668. e.g., id. does not suffi- voters of Texas cific subsets that the district court did conclude We imposed by the burdens ciently mitigate impos- clearly finding err SB 14. burdens on the significant disparate and es 14 has no claims SB further The State to vote. right offers the State impact because disparate EICs, free under- and after SB “free” Gingles Factors Texas voters who to lying documentation court’s consider the district We next Yet, the record is in Texas. were born a discrimina- finding “produces that SB that the State devot- with evidence replete [it] that is actionable because tory result educating funding or attention ed little and historical ... with social interacts] require- voter ID the new about voters inequality to cause an conditions Texas ments, many lacking Plaintiffs resulting enjoyed opportunities in the electoral supposed accom- about these information Hispanic and voters.” African-Americans they informed about until were modations See, Gingles court found Id. at 698. The district during the course of this lawsuit. them 1, 2, 5, 6, 7, 8, probative. and 9 Id. 667-69, “in- factors (describing the e.g., id. at unduly Georgia’s ID law bur- whether con lackluster efforts stand stark 52. These voters, initially granted a court dened whose voter ID to those of other states trast injunction part lack of preliminary due to scrutiny. passed Section 2 laws have thus far education, finding See, that voters notice and e.g., the NAACPv. N.C. State Conference — -, ---, Georgia ran been educated after No. had since McCrory, F. 3d 1:13CV658, directly voters contacted advertisements WL at *19-20 inform (M.D.N.C. 2016) myr potentially lacked valid IDs to (cataloging who Apr. Carolina, get valid ID or vote absen- in them about how iad educational efforts of North tee), grounds, part other vacated in cluding: before at three elections education 2009). effect; Contrary having sign a F.3d 1340 voters the law went into ID; hyperbolic predictions, these different targeted ledger they required State’s if lacked importance fact- outcomes show mailings and to those voters outreach 200,000 analysis employ we here. It Section Carolina's no- bound over others on North list; approval laws less bur- in the obtain has resulted pre-paid return mailers to match ID; discriminatory in effect and less lacking required densome assistance for voters advertisement, it holds the State of Texas targeted than SB while updated mail further perhaps most the strictest and impedi accountable for ing, after a reasonable and outreach enacted); ID law in the coun- poorly implemented voter exception was Common ment Cause/ See, Veasey Perry, F.Supp.3d at e.g., try. 1378-79 Billups, Ga. v. (noting many problems with (N.D. 2007) (holding the state of Ga. 14). implementation of SB Georgia’s educational efforts were crucial Again, proper ago at 697. we conclude it was acts of official discrimination give con- *38 Gingles utilize the factors to analysis,53 determine text to the and the district court engendered by whether conditions current contemporary credited more examples of state-sponsored and former discrimination discrimination. Veasey v. state-sponsored sufficiently dispari- are linked to the racial Perry, 71 F.Supp.3d 700. One ty possession in ID under SB 14. contemporary example the district finding court’s every redistrict- “[i]n
(a) Gingles
History
Factor 1:
of Offi-
ing cycle since
Texas has been found
cial Discrimination
to have violated the
racially
VRA with
part of'
“searching prac
gerrymandered
As
districts.” Id.
636 &
at.
cases).
tical
past
present
evaluation of the
(collecting
The district court
n.23
reality,” Gingles,
that,
478 U.S. at
further noted
before it was vacated
(citation omitted),
the
along
district court
preclearance by Shelby County,
history
found that Texas’s
“a three-judge court had
discrimina
found that two of
voting
tion in
acted in
concert with SB
Texas’s 2011 redistricting plans violated
ability
to limit minorities’
in
VRA.” Id. at 636
participate
words,
In
n.23.
other
repeat Shelby
the political process.
We
Legislature
the 2011 Texas
was found to
County’s admonishment
that “history did have
Voting Rights
violated the
Act
1965,”
not end in
138 S.Ct. at
passing
redistricting
two
plans that were
emphasize that contemporary examples of
retrogressive
found to have a
racially
or
probative
discrimination are more
than
discriminatory impact in
legisla-
the same
examples. However,
long-
historical
even
tive session that resulted in SB 14.54
many
53. The
examples
sidering
Legislature
district court cited
whether the
acted with
long history
state-sponsored
intent,
Texas’s
dis-
discriminatory
ignored
it cannot be
in
Veasey
Perry,
crimination.
discriminatory
analysis,
effect
because
F.Supp.3d
examples
at 633-36. Less recent
seemingly
even these
remote instances of
primary
per-
include all-white
elections that
State-sponsored discrimination continue to
despite
sisted from 1895 to 1944
the Su-
produce socioeconomic conditions that
preme
attempting
practice
Court
to curb the
dispari-
court found caused the racial
district
1927, literacy
in
and secret ballot restrictions
possession
ties in
of SB 14 ID.
persisted
until struck down in
poll
eventually
taxes that were
struck down
course,
preclearance analysis
54. Of
differs
poll
in 1966. Id. at 633-35. When the
tax was
discriminatory
from the Section 2
anal
effect
made unconstitutional
in 1964
the Twen-
ysis. The
had
State
the burden to
show
Amendment,
ty-Fourth
attempted
Texas
preclearance
should receive
Texas Hold
ballots,
separate federal and state
so that the
er, whereas the
have
Plaintiffs
the burden to
impose
poll
State could still
tax for state
analysis
show a
effect
ballots. That effort never succeeded because
Holder,
employ
we
here.
Texas v.
Cf.
it was struck down as unconstitutional after
(D.D.C. 2012)
(noting
Voting Rights
passed
applied
Act was
preclearance analysis places
the burden
Eventually,
to Texas.
Texas ratified the Twen-
prove
on the State to
that a law does not have
ty-Fourth Amendment in 2009. In the wake
"
denying
abridging
right
‘the effect of
taxes,
inability
poll
of Texas’s
to retain
to vote on account of race’—i.e. ... a retro
passed
district court found that Texas
a voter
effect”),
gressive
vacated and remanded on
re-registration requirement
per-
grounds, - U.S. -,
other
purging
sisted
the form of
the voter rolls
(2013).
dissenting
because
that its discrimi-
justification
on the
Discrimination
relied
necessary to combat
were
natory measures
Next,
appraised
the district court
Legis-
The Texas
Id. at 686.
voter fraud.”
members of the
to which
extent
“[t]he
*39
in
justification
same
on that
lature relied
the effects of
group ... bear
minority
though the evidence
even
passing SB
education,
in areas such as
discrimination
very
fraud “is
voter
in-person
that
showed
health,
hinder
which
and
employment,
rare.” Id.
effectively in the
ability
participate
their
long-ago
that
evi-
acknowledging
Even
Perry, 71
Veasey v.
process.”
political
than
has less force
dence of discrimination
(citing Gingles, 478 U.S.
at 696
Shelby
under
contemporary evidence
more
2752).
disparity
The
sup-
and other factors
this factor
County,
education,
health out
employment, and
finding that SB
court’s
port the district
Americans,
African
Anglos,
comes between
discriminatory effect.
ahas
by the fact that
manifest
Hispanics
and 33% of
of African Americans
the 29%
Racially
(b) Gingles
Polar-
2:
Factor
poverty
in Texas live below
Hispanics
Voting
ized
Anglos.
of
Id. at 665.
compared
line
to 12%
Anglos is also
unemployment rate for
primarily
court relied
The district
trial,
court
Burden,
At
significantly
lower.
Barry
Dr.
testimony of
on the
unem
Anglos
of
were
found that 6.1%
George
and Mr.
professor,
political science
Hispanics
of
ployed compared
8.5%
Korbel,
voting rights, in con
expert on
at 666.
African Americans. Id.
exists
12.8% of
racially polarized voting
cluding that
Furthermore,
Anglo 25-year-olds
91.7%
Texas. The court stated
throughout
school,
graduated
high
have
in Texas
voting exists when
“[r]acially polarized
Americans,
to 85.4% of African
compared
a voter correlates with
ethnicity
race
Hispanics.
Anglos
Id.
only 58.6% of
Id. at
preference.”
candidate
the voter’s
likely
have
n.21, 106
more
significantly
are also
at 53
(citing Gingles, 478 U.S.
Anglos
hold a
2752).
college
completed
court
support, the district
For
—33.7%
compared to 19.2%
degree,
Anglo and bachelor’s
gap
between
noted
Hispanics.
African Americans and 11.4%
support is between
Republican
Latino
tes
Finally, the district court credited
Id.
points,
percentage
and 40
His
African Americans and
timony that
acknowledged the ex
previously
has
Court
to re
likely
Anglos
more
than
panics
in Tex
are
racially polarized voting
istence of
health, and to lack
being
poor
port
has
as,
litigation,
in other
Texas
and that
insurance. Id. at 666-67.
voting ex- health
racially polarized
conceded
arguments
generally
We
do not consider
finding of a
link.
based on the
discrimination
reply brief. See
three-judge
court.
the first time in a
federal
raised for
Lines,
1540, 1546
Sulpicio
932 F.2d
Baris v.
reply
before
the first time in its
brief
55. For
1991).
(5th
not renewed
Cir.
The State has
n.9
case,
initially
panel that
heard this
we
court and
argument before our full
argued
the district court erred
State
it.
will not consider
voting patterns
examining
race and
whether
causal,
correlated, rather
than
exhibited a
history
The district court found that
League
Citizens,
United Latin Am.
State-sponsored
discrimination led to
Clements,
Council No.
education,
disparities
employ-
these
1993) (en banc).
866-67
ment, housing,
transportation.
See id.
district court
affirmative,
concluded in the
example, according
at 636. For
to Dr.
and the State does not contest these un
Burton, a professor
exper-
Vernon
with an
derlying
findings
factual
appeal.
relations,
past
tise
race
State-sponsored
The district court ultimately found:
employment discrimination and Texas’s
SB 14’s
ID requirements
interact
“separate
equal”
maintenance of a
but
ed-
with social and historical conditions in
system
ucation
both contributed to the un-
Texas to cause an inequality in the elec-
equal
that presently
outcomes
exist. Id.
opportunities
toral
enjoyed by African-
Although
Education,
Brown v. Board of
Hispanic
Americans and
voters as com-
that “Hispanics and African-Americans Again, the State does not dispute the up disproportionate make a number of underlying methodologies. Instead, data or people living poverty, in and thus have objects the State the district court little real choice when it spend- comes to must have found some evidence that SB 14 ing money anything that is not a ne- directly caused a reduction in turnout. The (footnote omitted). cessity.” Id. at 636 State insists that the district court erred by failing to ask whether SB 14 causes Importantly, the district court also voting disparity, racial rather than a dis- found that socioeconomic dispari- “[t]hese parity possession. voter ID We have ability ties have hindered the of African- required showing. never such a 2 Section Hispanics Americans and effectively to standard, asks whether a practice, pro- or participate political process. An- Dr. cedure abridgement solabehere results “a denial or testified that these minorities of ... register right to vote.” 52 for at U.S.C. turn[]out elections 10301(a). § lag Abridgement rates that far behind is defined as Anglo voters.”56 significant Id. 697. This is reduction or “[t]he because the diminution of some- inquiry in 2 thing,” Abridgement, Section cases is whether the Black’s Law Dictio- vestiges 2014), of discrimination act in concert ed. while Voting naRY with the challenged impede Rights law to minority Act defines “vote” to include “all participation in political process. necessary See action to amake vote effective According Likewise, expert to Dr. Hispanic Ansolabehere’s re- voting age. citizens of port, Anglos voting age to of of 87% and 84 Anglos compared of voted in 2010 to 41.8% Anglo to voting age of citizens of 88% Hispanics. of Blacks and of 31.3% In 22% vote, registered compared Texas are to to 65 voted, registered Anglos 64.3% com- voting age to 77% Blacks of and 75 to 80% pared registered to 45% Blacks and 59.8% voting age, of Black citizens of and 50 to 55% registered Hispanics. Hispanics voting age and 75 to 80% to, election, by limited but in the registration not same turnout differ
including, but required pre- State law other action voters might ent increase for some other ballot, casting a requisite voting, reason. Veasey Perry, See counted.” having ballot 52 U.S.C. such (discussing the effect of President 10101(e). § court’s finding The district turnout). Obama’s candidacy on voter That right abridges SB 14 vote caus- kept does mean the voters away were in voter ID ing disparity posses- a racial any less Requiring disenfranchised. comfortably sion within this definition. falls showing presents of lower turnout also the same outcome. Our case law dictates problems pre-election challenges for Push, F.2d at Operation voting laws, yet when no such data is finding court’s that a the district (affirming fundamentally, available. More no authori law registration violated Section ty supports showing requiring of lower in a 25% in the when it resulted difference turnout, abridgement right since registration eligible rates between black prohibited along vote is with denial. U.S. voters); Chisom, see also white 10301(a). XV; § Const. amend. U.S.C. (Scalia, J., U.S. at Illuminating point this last State’s (“If, example, county dissenting) per- argument question answer at to a oral three registration mitted voter proposed about whether its Section 2 ef week, and day a that made hours one (if literacy prohibit fects test would tests than register more difficult for blacks they were specifically pro not otherwise whites, less opportunity have blacks would hibited) political process’ being imposed than as a participate ‘to condition *41 whites, 2 would therefore be voting.57 [Section] The State contended that lit ....”). violated eracy almost certainly” tests “would be proposed struck down under its Section 2 reason, we to re- For the same decline only plaintiffs effects if test —but could quire showing prove a of lower turnout to a resulting equal show “denial of opportu a 2 An Section violation. election law i.e., keep going polls, nity,” disparity.”58 from to the a “voter turnout some voters full, exchange systems place, legacy between a member of in and under those In argument systems, our en banc oral liability.” court at the would have been there follows: State’s counsel dissenting opinions 58. One of the re- would literacy sepa- tests "[I]f JUDGE: weren't quire showing pre- of decreased turnout to rately prohibited, literacy would a be test vail on a effect claim. This proposed by your equal treat- invalidated argument unsupported case is law and ment test?” First, ignores following points. an such literacy COUNSEL: as STATE'S "Insofar approach ability would foreclose to file tests, know, all, you first of would pre-enforcement challenges, partic- which are obviously separately banned under —" ularly important preclearance now that is not separate ban.” "Beside[s] JUDGE: required. concurring opinion As the acknowl- “I—I STATE'S COUNSEL: believe inso- edges, suggested Supreme Shelby Court you're putting separate aside the far ban- as County voting that courts could "block laws you're ning, putting and insofar aside through injunctive going into effect” re- claim, ask, you purpose I think would still Shelby Cty., lief under Section 2. See S.Ct. 133 equal opportunity?' a denial of And 'is this Second, at 2619. does turnout itself not an- you’d prima have to in that scenario show a particular being question swer the of a case, certainly, and it would facie almost people denied of certain access: turnout jurisdictions talking the relevant we’re about, might increase while turnout others de- able to turn- have been show a voter creases, same; ah, know, yet, leaving overall turnout the you disparity, particularly, out right are those denied the to vote still disen- Operation Push v. Mabus have been would Third, you argument legacy another case like this where had franchised. also con-
261 cripple Voting Rights pact, Gingles, see at decline U.S. We (and analysis. 2752, by using proposed highly it is not probative Act State’s here Voting Rights Doing appeals so would unmoor the racial seem to have been used history non-minorities). decades of well- Act from its both minorities and interpretations pro about its established appeals district court found that such still Allen, at tections. See exist Texas and cited anecdotal evidence (“The Voting Rights Act was S.Ct. 817 support finding. its Veasey Perry, See obvious, subtle, at the as well as the aimed F.Supp.3d at 638-39. While we do not regulations state which have the effect of overturn the factual underlying finding, we denying right citizens their vote because agree do not that such anecdotal evidence race.”); Chisom, of their U.S. of racial campaign appeals shows that SB (Scalia, J., dissenting) S.Ct. abridges right denies or to vote. (“This new ‘results’ criterion [from Rights Voting 1982 amendments to the (e) Gingles Mi- Factor 7 Factor 8: provides powerful, albeit sometimes
Act]
nority Public Officials and Re-
blunt,
to attack even
weapon with which
sponsiveness Minority
Needs
discrimination.”).
the most subtle forms
minority
extent to which
can
Instead,
to the
we will adhere
public
didates are elected to
office also
challenged
instruction to examine
Court’s
degree
vestiges
contextualizes the
to which
intensely
fact-
practices
laws and'
of discrimination continue to reduce minor
totality-of-the-circum
based and local
ity participation
political process.
in the
analysis.
Gingles,
stances
See
Gingles,
(d) Gingles Appeals Factor 6: Racial Legislature’s response to ameliorative Campaigns in Political amendments, lack re- demonstrated a ap sponsiveness minority the existence of racial needs elected While 45, at peals political campaigns Gingles, is a factor that officials. See 478 U.S. disparate supports indicative of a law’s im- S.Ct. 2752. The evidence the dis- voted, abridgement previous literacy but their flates and denial: in test and therefore times, people paid poll passed rights abridged. some tax or were still legislature that “the Court has made clear. See finding trict court’s 191, Crawford, be most affect- would knew that minorities Veasey Perry, Yet, a legitimate ID law.” the articulation of inter by the voter ed instance, Rep- magic For is not a incantation a state can at 657-58. est Smith, proponent finding im disparate Todd utter to avoid resentative it was “common legislation, pact. searching stated Even under the least stan disproportion- have employ types sense” the law would we for these dard of review at 657. minorities. See id. ate effect on challenges, there cannot be a total dis Hebert, Deputy General Similarly, Bryan announced in connect between State’s of the Lieutenant in the Office Counsel and the statute enacted. See St. terests provi- of some of the author Castille, Governor and Joseph Abbey F.3d that SB 14 was (5th 2013) warned sions of SB (holding 225-26 Cir. there was (the now-defunct) pre- unlikely to obtain impermissible “disconnect” between the Act Voting Rights clearance under expressed interests and the chal state’s ID. permissible without further forms noting that lenged regulations “[t]he Id. at 658. regula due state economic great deference judicial tion does not demand blindness to minority court noted
The district history challenged of a rule or the testified about and constituents legislators it re adoption!,] context of its nor does impact yet of SB likely disparate quire accept explana courts to nonsensical ameliorate that im- their amendments to state]”); tions Inclusive [from rejected explanation. without pact were cf. Dep’t Inc. v. Tex. Hous. Cmtys. Project, 658, 669, 698, 702. These id. at Cmty. Affairs, 747 F.3d & expand the forms included amendments 2014) (permitting plaintiff prevail IDs, to include student acceptable impact claim under the Fair disparate IDs, state-government employee federal “prov[es] Act where he that the Housing IDs, and train- measures to fund education substantial, legitimate, nondis law, [state’s] indigency ex- ing related to the criminatory supporting interests the chal 708-10. While ceptions.59Id. could be served another lenged practice improper intent necessarily prove does not effect”), has a less practice legislators, thosé nonethe- part on the — ——, 'd, lack of re- a conclusion of supports less aff (2015). L.Ed.2d 514 The Court Gin- sponsiveness.60 passed the 1982 gles and Senate (f) Gingles Factor 9: Tenuousness of Voting Rights Act ac Amendments to the Underlying the Law Policies by including as much tenuous knowledged *43 among ness the factors to be considered. district court concluded Gingles, 478 U.S. at underlying pas that the SB 14’s policies respon elected officials’lack of sage only tenuously Along related to the with were needs, a fit minority tenuous preventing interests in fraud and siveness State’s expressed policy pro and the in elections. between the increasing voter confidence law the conclusion visions of the bolsters deny do not that the State’s articulated We interests, equally that minorities are not able objectives legitimate are state as part is akin to the difference indigency exception was of SB 14 60. This distinction 59. Senate, passed stripped negligence when it but was between and intent. Veasey v. from the bill in the Texas House. Perry, F.Supp.3d at 652. political process. ny in the Other- participate that undocumented immigrants are un- wise, re- likely they try elected officials would be more to vote as to avoid contact impact of sponsive regarding disparate government agents with being for fear of law, not meaningfully deported. law related Id. at 654. At Repre- least one expressed purpose to its would be aban- who sentative voted for SB 14 conceded imposing doned or ameliorated to avoid that he had no evidence to substantiate his disparate impact, given preexisting so- fear of immigrants undocumented voting. political cioeconomic and disadvantages Additionally, Id. the district court found by past present caused discrimination. prevent SB would not noncitizens voting, from since legally noncitizens can The district court found that “the stated obtain a Texas driver’s license or con- policies behind only tenuously SB are handgun license, cealed two forms provisions.” Veasey Perry, related to its 14 ID. at Id. 654-55. at 698. The State is entitled policy to make choices about when and The district court also found “no credi- how it will priorities. address various But ble support evidence” to assertions that case, provisions in this 14 fail of SB to voter turnout was low due to a lack of correspond any way meaningful elections, to the confidence in SB would legitimate interests public elections, the State claims to increase confidence in advancing through have been SB 14. For that increased confidence would boost vot- example, Legislature claimed to model er turnout. Id. at 655. Two State Senators Indiana, Georgia, its law after those from and the Director of the Elections Division Wisconsin, and other states that included the Texas "Secretary of State’s office many acceptable more identifica- were all unaware anyone abstaining forms tion, plus indigency exceptions and far voting fraud, from out of concern for voter campaigns. more extensive educational and the Director implement- testified that Yet, Legislature rejected many amelio- ing provisional SB 14’s process ballot rative amendments might actually that would have undermine voter confidence. 14 in brought SB line with those states’ Id. voter ID laws. See id. 658. The Rather, the district court credited testi- option voting of mail-in also showcases mony that SB 14 would decrease voter dubious connection between the State’s in- turnout. Id. at 655-56. According to a well- provisions. terests and SB 14’s In order to employed by political established formula fraud, prevent voter pushed the State has scientists to assess individuals’ likelihood elderly more vulnerable away voters election, voting in an increasing the cost in-person voting voting form of —a of voting particu- decreases voter turnout — proven little incidence of fraud —and to- individuals, larly among low-income voting,
ward mail-in which the record they are most cost sensitive. Id. at 656. fraud, shows is far more vulnerable to Further, the district court dismissed the particularly among elderly. Id. at 639- argument during increased turnout fact, In SB 14 does nothing to presidential the 2008 election was demons- prevalent address the far more issue of trative of increased voter confidence two fraudulent absentee ballots. Id. at 641. recently states that had passed voter ID *44 Instead, The district court likewise found that laws. Id. at 655. it found that the Legislature’s expressed turnout, the concerns about increased which occurred nation- immigrants wide, undocumented and noncitizens was due to President Obama’s candi- voting were misplaced. dacy. It credited testimo- Finally, Id. the court that also found (2) of Texans high disproportionate lev- number found polls
public opinion —which requirements— are African-Americans photo living poverty support els (3) 14 itself that SB Hispanics; and African-Ameri- were not demonstrative confidence. Id. at 656. promote likely would than Hispanics cans and are more polls be- court discounted The district living poverty to be because Anglos whether voters they not evaluate cause did to bear the socioeconomic they continue than some itself rather SB 14 supported by of racial dis- effects caused decades weighed ID law when of voter other form crimination. exceedingly burdensome 14’s against SB at 664. Veasey Perry, effect on mi- attendant
requirements
thoroughly
The district court
evaluated
nority voters. Id.
circumstances,”
each
“totality
Discriminatory
(g)
Effect Conclusion
and the State
finding
well-supported,
underly-
many
to contest
has failed
findings regarding
light of its
In
Furthermore,
findings.
the dis-
ing factual
impact,
applica
and its
disparate
SB 14’s
analysis
comports
trict court’s
factors,
the district
Gingles
tion of the
“a
recent instruction that
Supreme Court’s
14 acted in concert with
that SB
court held
claim that relies on sta-
disparate-impact
conditions of dis
and historical
current
if
disparity
plaintiff
must fail
tistical
African Americans’
to diminish
crimination
or
point
policy
to a defendant’s
cannot
ability
in the
participate
Hispanics’
causing
disparity.”61
Inclusive
policies
con
Id. at 695-98. We
political process.
Communities,
at 2523. The dis-
performed
court
that the district
clude
acknowledged
princi-
trict court here
by
appraisal” required
“intensely local
find-
holding
tethered its
to two
ple and
We note because the district Fourteenth Amendment claims. See Ket link findings state-spon- court’s Texas’s Byrne, chum v. 740 F.2d 1409-10 history sored of discrimination to the con- (7th 1984) (“There appears Cir. to be no affecting minority ditions voters in Texas practical difference result or in the today, we need not and do not decide remedy regardless available of how the proof state-sponsored whether of such dis- resulting discrimination is characterized. required crimination is under the second explicitly therefore shall not We decide the Frank, part analysis. of this 768 F.3d Cf. issue of a fourteenth amendment violation at 755 that (reasoning discrimination ”); .... Nw. Austin Mun. Util. Dist. affecting minorities should be linked cf. Holder, 193, 205-06, No. One v. 557 U.S. part two-part state under the second of the 2504, 174 (2009). Put L.Ed.2d analysis). The evidence in this record suf- way, another rights and remedies are higher fices to meet even this standard as intertwined. enunciated Frank. Id. Accordingly, it unnecessary en conclude that the
We district court did issue, banc court to address this and we clearly not err in determining that SB need not and do decide whether SB 14 has a effect on minorities’ violates the First and Fourteenth Amend- voting rights in violation of Section 2 of the by placing ments an unconstitutional below, bur- Voting Rights Act. As discussed we den on the right vote. See Merced v. remand for a appro- consideration of the Kasson, (5th 586-87 Cir. priate remedy light impending of the 2009); City Greenwood, Jordan v. general election. 1983) F.2d (quoting 668-70 III. First and Fourteenth Amendment Serv., Spector Motor Inc. v. McLaughlin, Right
Burden on the
to Vote
101, 105,
323 U.S.
89 L.Ed.
(1944)).
We therefore vacate the dis-
argue
Plaintiffs
that
SB
also
trict court’s determination on this issue
unconstitutionally burdens their right
and dismiss Plaintiffs’ First and Four-
vote,
as forbidden
the First and Four
teenth Amendment claims.
teenth Amendments. We decline to decide
question,
this
the “well
under
established
Poll Tax
IV.
principle governing
prudent
exercise
jurisdiction
normally
this
Veasey
originally
[c]ourt’s
Plaintiffs62
al-
,
leged
th[is c]ourt will not decide a constitutional
14 imposed
poll
tax in
question if there is some
ground
other
violation of the
and Twenty-
Fourteenth
upon
dispose
which to
passage
ease.” Escam
Fourth Amendments. After the
McMillan,
Cty.
bia
Veasey
104 SB
Plaintiffs filed a Rule
(1984).
28(j)
court,
To the extent the Plaintiffs now who own have flexible work schedules, attempt possess SB 14 983 to analogize already and SB the re- Harman, reject quired easily can more the scheme we documentation Harman, requirements In analogy. Virginia procedural the state of meet these than would in federal and others forced those who vote some of Plaintiffs who lack poll to choose between these resources. Plaintiffs others simi- paying elections taxes,” This Veas- not is somewhat tension with the tal burdens on voters are includ- briefing panel, ey initial before ing paying gas Plaintiffs' costs such as ''[incidental poll which claimed SB 14 was a tax based polls.” to the to drive the fee involved and conceded that "inciden- recently-enacted SB light In struggle gather larly often situated documentation, make travel ar- unconstitutional impose an SB does required time off from work obtain rangements Twenty- the Fourteenth or poll tax under regis- local county clerk or travel to the Amendments, impose did it nor Fourth DPS, trar, all to receive and then to Ac- enactment. tax before 983’s poll receive greater difficulties EIC. These the district court’s cordingly, we vacate in the Section discriminato- consideration Veasey Plaintiffs on their for the judgment ju- but Court analysis, ry effect in the judgment render poll tax claim and equated these difficul- has not risprudence State’s favor. *48 See, alone, poll e.g., a tax. ties, standing to In at 86 S.Ct. Harper, 383 U.S. Remedy V. Harman, noted: specifically the Court that the emphasize to important is [I]t 14 was enacted finding that SB After it is not whether presented question discriminatory purpose, the racially awith power to abol- within a State’s would be enjoined imple- 14’s fully court district require tax and all entirely poll the ish mentation, exception the of several with federal —to file annu- voters—state that do not relate to of the law sections Rather, of residence. ally a certificate Veasey Perry, See photo identification. is whether the State the issue here remedy That at 707 & n.583. 71 constitutionally confront Virginia than the one potentially is broader requirement a voter with the federal only if Plaintiffs would be entitled which customary poll pay either the that he claim were con- discriminatory effect the elections or required for state taxes as Crawford, 553 U.S. at Compare sidered. of residence. file a certificate (noting, 1610 the 128 S.Ct. 1177; see also at 85 S.Ct. context, have “petitioners 2 Section at 128 S.Ct. Crawford, 553 U.S. proper reme- not demonstrated unconstitutionality of (contrasting 1610 unjustified assuming an burden dy—even a “pay that voters a tax or requirement a to invalidate the voters—would be on some photo new identification” to obtain a fee Richmond, statute”), City entire that voters without requirement with a (holding, 2296 422 at U.S. clerk’s office the circuit court “travel to context, discriminatory purpose to execute days election] 10 [of within pur- ... taken for the official action “[a]n affidavit”). Additionally, required discriminating ... on account pose of a identification is qualifying whether the all”), and legitimacy ... no race has EIC, license, voters passport, driver’s 1,No. 458 v. Seattle Sch. Dist. Washington every elec- undergo process need 465-66, 471, 487, U.S. time frame six year during specific a tion (1982) (affirming per- L.Ed.2d 896 election, to the as was prior months a initiative injunction manent statewide Instead, the record indi- case in Harman. “effectively were provisions because its valid for six cates that an EIC remains purposes” racial violation drawn for sometime years and must be obtained Amendment).66 Fourteenth an election. before when some vi- legislative even suggest a full determinations We not mean to do found, remedy exam- injunction never available as a the district court must is olation is However, Perez, finding. given discriminatory effect potential range remedies. ine a full severability and the clause in this statute S.Ct. at 941. give deference to Supreme Court’s cautions to above, (and, islation, corre- policy we and those As discussed choices should be court) acting the district are spondingly, even when respected, aspect some short which the during within a timeframe Perez, underlying law unenforceable. court will have to fashion least district S.Ct. at 941. remedy relevant to the Novem- an interim sever- When statute contains a Thus,
ber 2016 election.
we consider
clause,
ability
courts
special
must
take
provide
guidance regard-
some
prudent
attempt
care
legislature’s
honor a
would
tai-
ing
properly
what
constitute
policy
choice
leave the
intact.
statute
remedy.
lored
Ayotte
Planned
N.
Parenthood of
remedy
devising
“When
to a
320, 330-31,
England,
New
violation,
court’s
district
[Section]
(2006)
(holding
L.Ed.2d 812
...
obligation
‘first and foremost
is to
that lower courts should not have invali
” Brown,
correct
Section
violation.’
statute,
dated the entire
but should have
(quoting
at 435
Shirt v.
561 F.3d
Bone
the legislature’s policy
accounted
Hazeltine,
severability
choices and
statute’s
2006)). Yet, any remedy
be suffi
“should
*49
clause).
case,
In this
severability
SB 14’s
giving
tailored to the
ciently
circumstances
clear
clause makes
the Legislature
id.,
violation,”
2
rise to the
and to
[Section]
photo
intended the
system
identification
possible,
respect
the extent
courts should
a
be left intact for all valid applications.68
policy objectives
craft
legislature’s
when
clearly underlying
Also
is the con
Perez,
ing remedy,
a
see
at 940-
present
cern that a voter
proper identifica
Communities,
44; see also Inclusive
easily
tion that cannot
be counterfeited or
(“Remedial
dispa
S.Ct. at
orders
used
another.
cases should
rate-impact
concentrate
give
There are times when a
might
court
offending practice
the elimination of the
an
‘arbitrarily]
legislature
opportunity
...
state
to cure
operate[s] invidiously
in the
permit-
infirmities
statute before
to discriminate on the basis of rac[e].’”
(citation omitted)).
court
ting
remedy.
In
the district
to fashion a
the context
redist
535, 540,
ricting,67
Lipscomb,
has instruct
See Wise v.
Court
(1978)
2493,
objectives
a legislature’s policy
ed that
Because Court’s “high but accepting hurdles for some election, impending would nec- we persons” “entitle might particular those essarily have to give only limited time for relief’). persons to parties Because the had any legislative legislature fix. Since opportunity present an the evidence year, not scheduled to be in this session they during desired the initial district doing so would require that Texas proceedings, court the district court’s de- call special Leg- Governor session should terminations be based on the cur- Accordingly, although legislative islature. record, supplemented rent occur, by legisla- may may intercession not feas- action, any, tive if that occurs ible, and we after this follow the Court’s any remand oral argument permit permitted court guidance the district court. the district enter order that 14’s dis- remedies SB criminatory Wise, effects. See 437 U.S. at Clearly, Legislature wished to re- 2493; Perez, 540, 98 S.Ct. see also duce of in-person the risk voter fraud at 939-41. strengthening forms of identification presented voting.
In the event that the calls a Simply Governor reverting system place session to issue or special address this before SB passage 14’s a later Legislature again fully respect should address would policy not these identification, any issue of voter new choices—it would allow voters to cast bal- present law would a new circumstance presenting lots after less secure forms here. addressed Such a new law cure utility bills, like identification bank state- opinion. deficiencies addressed ments, paychecks. See Tex. Elec. Code ruling any our ruling 63.001(b) (West 2010). Neither here nor of § The panel opinion pre- district court on remand should possibility noted that one would be to rein- *51 Legislature the vent to amelio- acting registration state voter cards as docu- Any rate the issues raised in opinion. this qualify acceptable ments that as identifica- concerns about a new bill be the would tion under the Texas Election Code subject of a appeal day. new for another those who individuals do not have and reasonably obtain cannot SB ID.72Dur- remand,
On the district court should ing argument, oral counsel for the State to the policies refer SB underlying suggested indigency that an exception, fashioning a remedy. acknowledge We exception the modeled after Indiana’s majori- record establishes the that the vast law, voter ID would be sufficient to cure ID, eligible ty possess voters SB and discriminatory the effect of SB 14. These we do disturb SB on those 14’s effect the district are solutions court consid- voters —those who have must SB Further, fashioning remedy remedy, to vote. The must be tai- er. show rectify only discriminatory should ne- lored district court also consider the registration person. 72. While the not con- It is sent in a card does another nondiscrimina- photo, fashion, it is a tain more secure document tory charge, registered free of to each and, a bank statement bill than or electric any voter and therefore avoids cost issues. presumably, easily one not as obtained discriminatory ef- its Rights through Act training efforts cessity of educational consideration of and workers REMAND for voters fects and that both to ensure making use capable are places remedy consistent polling appropriate court selects. remedy the district whatever The dis- possible. opinion this as soon remedy any must ensure that trict court election, we impending In light discriminatory ameliorates SB 14’s enacted order court to file its the district order effect, Legislature’s respecting while discriminatory effect proper regarding integrity objective safeguard parties stated remedy possible. as soon as coop- secure by requiring to work more willingness of elections expressed have provide the district court eratively with identification. forms of voter matter, and we resolution of prompt election eve to do so to avoid urge them Other Claims C. emergencies. uncertainties holding the district court’s We VACATE tax under the Four- poll that SB 14 is a VI. Conclusion Twenty-Fourth Amendments teenth and Discriminatory Purpose Claim A. on judgment RENDER State above, RE- stated we For the reasons do not address need not and this issue. We judgment court’s the district VERSE unconstitutionally burdens whether SB racially with a discrimi- passed 14 was SB Four- to vote under the First and right for the dis- natory and REMAND purpose Amendments; therefore, we VA- teenth light this claim trict court to consider judgment court’s CATE district provided in this guidance we have those claims. that issue DISMISS discussed, to avoid As we have opinion. election, upcoming disruption of the D. Interim Relief fashion- court should first focus on district discriminatory sum, for the immediate ing interim relief In the district court’s up to leading in the months implementa- effect violation is to ensure the responsibility The dis- general November election. remedy for SB 14’s tion of an interim then reevaluate the evi- trict court should discriminatory disrupts effect that discriminatory intent and relevant to dence election rules for the identification Legislature anew whether the determine yet possible, little as eliminates season as discriminatory intent in enact- acted with a effect viola- the Section encourage the district court ing 14. We will need to reex- tion. The district court 2016 elec- until after the November to wait discriminatory purpose claim amine the How- to make this new determination. tion legal standards proper with the accordance ever, court waits to whether the district described, bearing in mind the have we findings until after the November make its action taken any legislative interim effect *52 sooner, instruct or does so we election may 14 have. The dis- respect to SB that, prior time light of the limited may await respect in this trict court’s task election, 2016 the district the November 8, election. general 2016 the November remedy implement any aris- court shall not this No- ing from such reevaluation before HIGGINSON, A. Circuit STEPHEN election. vember’s COSTA, Circuit joined by GREGG Judge, concurring: Judge, Discriminatory Effect Claim B. reminded, has Supreme As the Court finding district court’s AFFIRM the We been, made, has though great progress Voting 14 2 of the
that SB violates Section
273
exists;
“voting
majority
shows,
discrimination still
no one
opinion
the district court’s
that,”
2
Voting
doubts
and Section
Section 2 finding
permissible
is a
view of a
Rights
operates
“perma
Act
as a crucial
voluminous record informed by extensive
nent,
ban,” Shelby County
nationwide
v.
join
I
testimony.
the majority opinion and
—
-,
Holder,
2612,
U.S.
133 S.Ct.
separately
write
to respond
arguments
2619, 2631,
(2013),
After a
trial that saw the testi-
practice’s disparate impact. Though
mony
witnesses,
some
forty
of over
half of them
of the factors
have less relevance in
experts, the district
court concluded
cases, others,
vote-denial
nearly
particularly
one-hundred-and-fifty-page opinion
one, three, five,
nine,”
“Senate factors
SB 14—stricter than other
applying
aid in
upheld,
including
laws
courts have
Court’s admo-
those after which
nition to discern the
Texas’s law was ostensi-
relevant social and
bly
discrimination,
modeled1—violates
historical effects of
Section
because
abridges
ability
participate
minorities’
their interaction with a challenged law.
equally
political process.
in the
As the Ohio State
NAACP v. Hust-
Conference of
Holder,
3d -, -,
1. See
McCrory, - F. Supp.
Texas v.
2016 WL
(D.D.C. 2012) ("SB
far
(M.D.N.C.
25, 2016)
stricter than
Apr.
at *156
laws.”),
*53
Georgia’s
either Indiana's or
voter ID
("[North
voter ID law]
Carolina's
is also less
-,
grounds,
vacated on other
- U.S.
133
requirement
burdensome than the Texas ID
2886,
(2013);
ed, 555 F.3d 768 claims”). “apply only 10384647 to ‘vote dilution’ 2014 WL tors grounds, ed on other Tokaji, join (6th 2014); Daniel P. do well to this near-consensus see also We Cir. Deni that the Re- recognizing the New Vote circuits in Senate 2 to Applying Section 439, 481-82 in the Gingles provide guidance L. Rev. al, port Harv. C.R.-C.L. 50 (2015) of the Senate (concluding that most context. vote-denial claims, to vote-denial are relevant factors II. so). law And case especially
the fifth factor
fac
that the Senate
argument
belies the
Today’s
is also not inconsistent
outcome
the vote-dilution
place outside
have no
tors
County
Marion
Election
v.
with Crawford
context.
1610,
Board,
128 S.Ct.
170
(2008).
did not even
L.Ed.2d 574
roots'
factors have
The Senate
Crawford
Act,
held
McKeithen,
Voting Rights
F.2d
discuss the
court,
Zimmer v.
see
1973) (en
“correctly con-
banc),
only
lower courts
(5th
that the
Cir.
evidence
the record
cluded that
them to vote-dilution
not limited
we have
a facial at-
support
not sufficient to
contrary,
[was]
a vote-denial
To the
cases.
of the entire statute”
validity
tack on the
finding
we affirmed
in which
case
constitutional Anderson-Burdick
vio under the
registration process
Mississippi’s voter
Fur-
test,
Id. at
276
rejected
plaintiffs
as unreliable the
attempt to stretch Clements
court
jects Texas’s
expert
analysis
until elec-
statistical
and
record
plaintiffs wait
require that
to
Hispanics
no
that
were
challenged
included
evidence
occurred under
tions have
likely
qualifying
on
to
ID.
impact
possess
even less
prove
then
a direct
law and
at
pre-
at 406-07 & n.33. The law issue was
impossible
make
Id.
turnout. That would
strict, requiring
much less
a voter to
challenges,
2
which also
Section
enforcement
(A) one of
polls
acknowl-
at the
either
a
recently
present
Supreme Court
(B)
range
photo
of
IDs or
two
County, 133 S.Ct. at broader
Shelby
edged. See
showing
the voter’s
ap- non-photo
available
documents
(“[I]njunctive relief is
address,
utility bill,
voting
and
as a
to block
name
such
2] cases
propriate [Section
effect.”).
statement,
registration
or
as mul-
card.
going into
And
bank
laws from
Arizona,
testified,
myriad
No. CV 06-1268-
given the
Gonzalez
tiple experts
(D.
*1,
PHX,
at
*6 Ariz.
extremely
it is
difficult to
2006 WL
play,
at
variables
2006).
so,
judges
Even
two
wrote
Sept.
new law on voter
the effect
a
isolate
to
court’s hold-
argument
plain-
separately
that the
stress that the
Texas’s
turnout.5
record,”
a
im-
was based on “the current
and
required
prove
ing
direct
tiffs- were
in a future case
that
different record
pact
“[a]
on turnout
unsound.
a
produce
different outcome.” Gon-
could
that the
suggest
It is also mistaken to
(Berzon, J.,
zalez,
at 442
concur-
677 F.3d
majority opinion conflicts with the Ninth
ring).6
Gonzalez,
Circuit’s decision
court,
said
citing the
The Ninth Circuit of course
that
That
after
Senate
383.
‘causal
between the
approval
emphasizing
“proof
and
connection
factors with
voting practice
prohibited
a
challenged
to a
factual
deference owed
district court’s
determinations,
a find-
result’ is crucial” to
affirmed
Section
Sec-.
(majority
challenge.
opin-
Id. at 405
ing
plaintiff
that the
had failed
establish
tion
595).
ion)
Smith,
F.3d at
impact
(quoting
of a voter ID law
But
disparate
where,
court
found that the rec-
among
things,
other
district
the district
here
("For
establishing
particular practice
documents/voterlDhajnaletal.pdf
Lati
the effect of a
nos, Blacks,
turnout,
Americans there
by particular
multi-racial
let alone
on
on turnout
strong signs
photo
that
are
strict
identifica
subgroups,
any degree
precision.”);
turnout.”);
Hobby, et
Issacharoff,
tion laws decrease
Bill
Bedlam, 64
Samuel
Ballot
Duke
ah,
Texas Voter ID Law and the' 2014
(2015) (“There
has not
L.J.
been
Study
Congression
A
Election:
Texas's 23rd
enough
against
time to test
observations
District,
2015), https://
(August
at 13
al
... and
normal fluctuations in turnout
other
bakerinstitute.org/media/files/files/e0029eb8/
factors.”);
confounding political
Michael J.
(conclud
PoIitics-VoterID-Jones-080615.pdf
Pitts,
Impact
Empirically Measuring the
ing
Hispanic
Texas
non-voters in one
Impact
Photo ID Over Time and Its
on Wom-
congressional
significantly
district
“were
en,
(2015) ("[I]t
48 Ind. L. Rev.
can
likely
Anglo
strongly
than
more
non-voters
the amount of actual
be difficult
determine
agree
agree
photo
lack of
ID was
by photo identifi-
disenfranchisement caused
they
did
a ballot in the
reason
not cast
laws.”); Gilbert,
("Gath-
supra, at 750
cation
Gilbert,
election”);
general
Michael D.
ering
designing
relevant data
conclusive
Fraud,
The Problem Voter
115 Colum. L.
many
presents
challenges.”).
tests
("Other
(2015)
& n.55
studies
Rev.
(col
suggest
depress
voter ID laws do
votes.”
case,
judge, contrastingly
The district
to this
studies)).
lecting
that the
not contain "ade-
noted
record did
quate
any
[the Senate]
evidence
factors
point.
5. Scholars have made the same
appropriate
evaluation.”
Tokaji, supra,
("Existing empirical
to enable
475-76
Gonza-
lez,
simply
WL
up
methods are
to the task of
at *8.
plaintiffs’
ord established
causal connection. The
challenge “because in Wisconsin
judge
voting
trial
found that SB 14 makes
everyone
opportunity
has the same
get
minorities,
relatively more difficult for
qualifying photo
ID.” Id. at
likely
without ameliorative measures will
*56
reasoning ignores
This
that Section 2
disproportionately suppress minority vot
prohibits voting procedures “imposed or
ing, by conditioning
right
to vote on applied ...
in a manner which
results
that,
possession
of documents
because
denial or abridgement of the
...
right
discrimination,
past
of the effects of
are
10301(a)
§
vote.” 52 U.S.C.
(emphasis add
minority
harder for
voters to obtain. Such ed). Indeed, the opinion does not mention
present-day
interaction between
law and
“abridgement”
single
aside from a
quota
past
the effects of
discrimination is what
tion of the statute. Judge Easterbrook’s
Congress intended to combat.
Gingles,
See
“equal-treatment” gloss
he did not
—which
U.S.C. that Section we should not right details, 2 does not inquiring to have into such or from judging ] “establishf protected contexts, of a class in operative merely members elected laws their equal numbers to their proportion pop require because it will courts to draw fact- ulation”). show, recent specific And as eases not and even close distinctions. States will, all ID simplis Supreme voter laws either. It is have reacted to the Court’s deci- lump together, tic to all such laws over Shelby County sions and Crawford looking that introducing range voting regulations details —such as which forms Tokaji, supra, implementing regu- § at 475. and Code 24.2-643 its simply requires lations. The statute that a (chart Veasey, F.Supp.3d 9. See 71 at 642 name, address, registrant provide her birth- that, showing types accept- in terms of of ID date, security sign and social number and ed, SB 14 is the strictest voter ID law in the registration swearing form that the informa- country). correct.”). provided tion is true and Compare Veasey, F.Supp.3d at 668-69 (explaining requires that SB 14 a birth certifi requirement, ID ex 11.North Carolina’s get qualify cate or similar document to a free rollout,” ample, two-year had a "soft and the - ID), ing McCrory, Supp. with F. 3d at more extensive educational in state's efforts -, (explaining 2016 WL at *26 mailings offering help cluded to voters whom that a North Carolinian can secure free voter might study qualifying indicated have by supplying Security ID a Social number and - McCrory, Supp. ID. See F. 3d at -- approximately twenty supporting two of ments, docu -, *19-26; 2016 WL see also records, ID, including prison medical Billups, Common Cause/Ga. stubs), paycheck and and Lee v. Va. State Bd. (N.D. 2007) (discussing 1378-79 Ga. Elections, - F. 3d -, -, Supp. efforts), (E.D. 19, 2016) Georgia’s "exceptional” WL educational May at *24 Va. (“[E]ligible present any part grounds, voters do not need to vacated in on other independent documentation to obtain a free 2009). Virginia voter form of identification under 683, 687-88, McCrory, Supp. 156 F. 3d previously had been what beyond go *2, *11 these initiatives to healthy for WL It is
upheld.
2016)
(M.D.N.C.
man-
congressional
(noting
against
Jan.
be assessed
can and should distin-
dates,
adopted
courts
a reasonable-im
North Carolina
nondiscriminatory
“materially
guish
exception
between
ones
indistin
pediment
integrity and those
voter
safeguard
during
which
from South Carolina’s”
guishable
intentions,
which,
interact
their
whatever'
litigation);
Milwaukee
course
past
the effects
Walker,
discrimination
the NAACP v.
Branch of
partici-
opportunities
abridge minorities’-
(2014)
469, 851
278-79
N.W.2d
Wis.2d
scrutiny
process. Such
political
in the
pate
as to avoid
so
(construing
law
judi-
heavy-handed
not as
should be seen
infirmity).12
constitutional
but as
legislative priorities,
rejection of
cial
may
that the
Court
Cognizant
harmonizing those
process
of a
part
light
refine Section law
itself choose to
right
fundamental
with the
priorities
Crawford,
Shelby County,
Gingles,
quarter
topic with which over
vote—a
topic
revisit the
Congress
or that
have dealt
amendments
Constitution’s
our
young peo-
groüps,
affected
such as
other
another,
an individual
way
in one
elderly
mo-
working poor,
ple,
compromised
because
right that cannot
bilize,
majority opinion,
I concur in the
relatively
few
impact falls
an adverse
respectful responses
these
having offered
Push,
many.
Operation
rather
than
arguments
made
dissent.
(noting
Mississip-
that the
F.2d at 404
finding of a
responded to a
pi legislature
JONES,
Judge,
EDITH H.
Circuit
by adopting
ameliora-
violation
Section
JOLLY,
E.
by E.
JERRY
joined
GRADY
court);
by a district
changes suggested
tive
CLEMENT,
SMITH, EDITH BROWN
*59
Carolina,
35-36
South
OWEN,
concurring
R.
and PRISCILLA
a
(explaining
adopted
that state officials
dissenting
part:
part and
of a voter ID law’s
interpretation
broad
verify
a voter to
Requiring
dissent.1
We
litiga-
reasonable-impediment exception
polling
ID at the
identity
photo
her
with a
J.,
(Bates,
con-
progressed);
tion
id. at
widely
requirement
is a
place
reasonable
(“An evolutionary process has
curring)
of all races and mem-
supported by Texans
South
produced
accomplishes
a law that
belonging
politi--
to both
public
bers
objectives
pro-
important
while
Carolina’s
however, today
majority,
parties.
cal
every
right to vote and
tecting
individual’s
voter ID
only
photo
that Texas’s
holds not
significant con-
a
that
law
addresses
law,
de-
violates the “results test”
potential
raised about [the law’s]
cerns
Rights
Voting
2 of the
clared in Section
group
agree
dispro-
that all
impact on
“more
Act,2
there is
African-American.”);
but concludes
see also
portionately
support
of evidence
than
scintilla”
N. Car. State
NAACP
Conference of
majority opinion
joinWe
Part IV of
disagree
opposite
criticism 1.
12. I also
with
on
judgment in favor of the State
that renders
engagement
that this interbranch
ameliorates
poll
claim.
tax
the Plaintiffs’
little, though
argument
is contributo
too
Hasen, Softening
ry.
L.
Voter ID
See Richard
holding
the law for that
invalidates
2. This
Enough?,
Through Litigation: Is it
Wisc.
Laws
subgroup
subgroup of the
small
4.5%
2016), http://
(forthcoming
L. Rev. Forward
voters,
allegedly
registered
those who
Texas
papers.ssrn.com/sol3/papers.cfm?abstract_
(drivers
approved ID
only the law’s
lack not
licenses,
.(with apologies to Professor Ha-
id=2743946
ID, etc.) but also lack the
veterans
version).
my
(birth certificates) necessary
citation of his draft
sen for
documentation
Identity
Election
Card
a free
to obtain
finding
Legislature passed
the Texas
legislative
has found a state
act motivated
ID law
photo
racially
by purposeful
racial discrimination. Even
By keeping
intent.
this lat- more telling, the
page
multi-thousand
rec-
alive,
claim
majority
yields
trace,
ter
fans the
ord
not a
much
a legiti-
less
perniciously irresponsible
inference,
flames of
racial mate
of racial
by
bias
the Texas
name-calling.3
Indeed,
Legislature.
why
racially
would a
biased legislature
provided
have
for a cost-
unwavering duty
No one doubts our
free election ID
poor
card to assist
regis-
enforce antidiscrimination
But in
law.
tered voters —of all
might
races —who
era,
hyperbolic
media-driven and
the dis-
have drivers’ licenses? Yet
the majority
charge of
duty requires
courage
emulates the clever capacity of Area 51
distinguish between invidious motivation
who,
alien enthusiasts
lacking any real evi-
ill-conceived,
and shadows. The
misguided,
dence, espied a vast but
gov-
clandestine
unsupported majority
opinion shuns
ernment conspiracy to conceal the “truth.”4
discernment.
Because
definitive Su-
preme
authority,
comparable
Court
no
fed-
inflammatory
Because
and unsupport-
eral court
precedent
forty years
over
charges
able
of racist motivation poison
(“EIC”)
by obtaining
and are inconvenienced
very
concern voiced
Dr. Flem-
the documentation
ming
EIC. As I shall
was illustrated
two recent deci-
demonstrate,
sions,
majority
gravely
Mobile,
Bolden,
offers a
in-
[City
v.]
Ala.
[446
interpretation
correct
of Section 2.
images Governor, licenses, sup- days past expiry) who driver’s Texas Lt. Governor cards, majority military IDs personal consider identification ported SB we critique then the ma- passports, with a United States photo, conclusion first. We holding and discuss con- jority’s citizenship Section 2 United States certificates majority opinion photo, carry handgun. stitutional tensions or licenses IDs, law fosters. For who lack such those offers a cost-free Election Identification Background I. (“EIC”) Card obtainable at state DMV (like highlighted at the must be offices the free points Three card available Indiana). outset, discussion to follow: required with further Photo voter IDs not are legislative process voters, they extent of the elderly the true and disabled law; photo of a voter ID leading passage may mail-in ballots. vote with Court’s catalytic effect trial, im- alleged At adverse racial IDs; im- these and the approving decision pact SB was derived from statistical on all races. requirements of the law’s pact Anglo, the relative estimates of numbers of First, enacted the 2011 SB 14 was Black, Hispanic not voters who “do legislative session after similar biennial possess SB14-compliant IDs.” That is ID voter had failed requiring photo bills say, qualifying the 4.5% who lack years, six op- For previous three sessions. IDs, a are Black disproportionate number successfully stalled had measures ponents Still, voters. Hispanic approximately proof identity, a voter’s requiring Anglo number of vot- registered same County from the just piece paper 296,000) (approx. ers as the total of Black a mere office or affidavit Registrar’s 128,000) (approx. and Hispanic (approx. every For shortcut “lost voter certificate.” 175,000) lack the IDs. Put requisite voters finally majority pass SB employed, otherwise, approximately Anglo, 2% of equal blocking tactic opposite Hispanic 5.9% of and 8.1% Black voters legislative ses- had succeeded in earlier comprise who lack 14 IDs but the 4.5% SB sions. EICs; could no poses vote with the law of minority obstacle for over 90% voters.
Second, campaign voter stronger encouraged by laws was Crawford Despite extraordinary to find efforts Board, County Marion Election voters “disenfranchised” 1610, 170 L.Ed.2d repre- any, DOJ could not uncover and no (2008), photo which Indiana’s upheld plaintiff organizations sentative of emphasized importance ID law and any found to vote of their members unable protecting the of election process- integrity plaintiffs 14. Three claimed because of SB rejected opinion Justice Stevens’s es. they person vote in could not under SB *61 claim that Indiana had to “proof’ advance qualified but two of those for ballots in in-person of actual voter fraud to order mail. ease turned on plaintiffs’ The thus justify passed the statute. Fourteen states the extent to which it could be estimated photo voter ID in wake laws of Craw- possess not 14 IDs those who do ford. It acquire would find it difficult EICs.
Third, range overwhelming- 14 was assumed that the 4.5% qualifying SB (of races). IDs, ly poor while than that in all There narrower some include laws, testimony, by any poses expert unsupported similar no obstacle to vot- was data, hard poor” likely “the are less My rate dissent. disagreements additional First, actual copies have or certified are birth two-fold. the majority fails to certificates, principal totality document follow the Supreme re- prece- Court quired Obtaining pertaining for an EIC. birth dents certifi- to the interpretation of legislative Second, cates was testified to be intent.5 challenging for the majority butchers, poor, especially those who when it does ignore, had moved not relevant original from their facts. birthplaces, but no esti-
mates of this
mobility
class’s
were offered.
Applicable Legal
A.
Principles
Finally,
if
poor
even
had birth certifi-
them,
cates or obtained
the district court
“[OJfficialaction will not be held uncon-
travelling
found that
to DMV offices to
solely
stitutional
because it
in
results
procure EICs could be time-consuming,
racially disproportionate impact .... Proof
burdensome and interfere
hourly
racially
purpose
intent or
work schedules.
required
to show a violation of the Equal
Protection Clause.” Vill.
Arlington
Majority’s
II. The
Erroneous Discus- Heights v. Metro. Hous. Dev. Corp., 429
Discriminatory
sion of
Intent
252, 264-65,
555, 563,
(1977).
L.Ed.2d 450
This is
ground,
shared
14 a facially
general
SB is
neutral
law
as it is that Arlington Heights sets out
applicability,
photo
whose
ID requirement
certain
factors that
be relevant
poses no
overwhelming
obstacle to the
ma-
proving the
legislature.
intent of the
jority of registered Texas voters. The law
has a racially disparate impact upon a
Arlington Heights’s
prov-
discourse on
subset of minority voters. But
ing
there is “no
discriminatory legislative intent does
smoking gun,” not even
There,
code words that
exist
a vacuum.
the Court
suggest discriminatory
intent
the thou- upheld
zoning
board decision that pre-
pages
sands of
of legislative documents vented the construction of a low-income
deposition transcripts
housing
the district
project
Chicago
suburb. The
compelled
court
produce.
the state to
facially
The
neutral zoning order had a discrim-
majority entirely ignores
inatory
the total absence
impact on minorities who were
and, moreover,
of direct evidence
has to
likely
more
to inhabit
project.
(by
exclude
force of precedent) the evi-
attempted
catalog
Court
a legisla-
how
heavily
decision,
dence most
relied on
it,
the district
tive
steps leading
and the
Still,
court.
majority
might display
finds “more than
an impermissible motive.
a scintilla of evidence” that could allow
Notably,
in each
exemplify
case cited to
its
factors,
district court on remand to condemn the
listed
discriminatory motive could
as,
law
at least in part, racially
easily
county
motivated.
inferred. A
public
closed
I fully agree with Judge
applica-
Clement’s
(heavily minority)
private
schools while
tion
Arlington Heights
segregated
factors and
schools
sup-
received financial
will not repeat the discussion in
sepa- port.6
her
A state constitutional amendment
majority
cases,
erroneously equates
ty
also
legislative
find-
which the
ing legislative
finding
intent with
plumbed
discrimina-
Court
in cases described above.
employment
tion in
cases. The intent of the
legislature
pastiche
Arlington
is a
Heights
of each individual
6. Vill.
v. Metro. Hous.
views,
representative’s
policies
Corp.,
mixed
Dev.
contrast,
employer,
(1977)
motives. An
(citing
is held to
the affected minority not the Third, rejected the Court plaintiffs’ the group. complaint excessively law was broad, unfair, and controversial with a firm
Significantly, the Court rebuffed three
reminder
that “the Fourteenth Amend-
arguments reminiscent of contentions ad
ment ‘cannot be made a
ill-
refuge from
in
support
finding
vanced
this case to
a
”
advised laws.’
Id. at
L.Ed.2d 1069 cannot be discrimination- perhaps could be drawn imposed government on other bodies not from a stark impact, sex-based but the Constitution). having been shown to violate Court cautioned that words, In exogenous past other effects inquiry this [i]n as it is under the —made impute discrimination cannot be used to Constitution —an inference is a working contemporary discriminatory purpose. tool, synonym When, not a proof. as here, impact essentially an un-
Second,
held,
the Court
consequence
avoidable
of a legislative
purpose:
policy that
always
has
itself
been
implies more than intent as volition or
when,
legitimate,
deemed to be
intent as awareness of consequences
here,
statutory
history and all of the
....
implies
It
that the decisionmaker
affirmatively
available evidence
demon-
...
particular
selected
reaffirmed a
opposite,
strate the
simply
inference
course of
part
action at least in
‘because
ripen
proof.
fails to
into
of,’
merely
of,’
‘in spite
its adverse
n.25,
Id.
because it would accomplish the collater-
comfortably
case before us falls
goal
keeping
al
in stereotyp-
women
line
Arlington Heights, Washington
ic
predefined place
Davis,
First,
the Massachu- v.
Feeney.11
facially
setts Civil Service.
neutral laws in each of those cases worked
pointed
Justice Stevens’s concurrence
primary holdings
out
It is true that
Washington
Feeney
adversely
that about 2.8
v. Davis and
worked
million women were
out
law,
relationship
disparate impact
between
affected
but so were over 1.8
clause,
Equal
and the
case,
Protection
men,
but in each
comparison
signifi-
million
he found
uphold
question,
the law in
the Court
cant "to refute the claim that the rule was
necessarily
purposeful
had to find no
discrim-
intended to benefit males as a class over fe-
legislature.
ination
This discussion re-
males as a class.” Id. at
B. Record evidence, stantial but the majority fails to mention following plaintiffs section tracks each of the unearthed no *65 alleged “facts” from which the direct majority evidence of discriminatory intent opinion draws inferences of discriminatory they even after granted were wide-ranging intent. and discovery invasive into potentially privileged14 correspondence internal
1. “the record does not contain direct Legislature.
Indeed, legislators,
staff,
their
evidence..
and even the Lt. Governor produced thou-
documents,
majority acknowledges,
As the
sands of
files,
the rec-
including office
any
books,
ord is barren of
“direct
personal
evidence that
bill
correspondence
con-
the
Legislature passed
Texas
SB14,
SB with a
cerning
personal
access to
and offi-
starting point”
assessing
for
Arlington
dis-
14. In
Heights,
Supreme
“different
the
Court
criminatory purpose
plain English,
claim. In
"judicial
cautioned
inquiries
legisla-
into
case,
argues
theory
he
litigated
never
in this
tive or executive
represent
motivation
a sub-
evidence,
unsupported by any
at odds with
stantial
workings
intrusion into the
of other
the
Feeney,
Court’s decision in
and
government”
branches of
"[p]lacing
and that
unsupported by
only
the
cases he relies on.
a decisionmaker on the stand is therefore
”
After his lament about the duration of the
‘usually to be avoided.’
cial email lawyers at indicative of errant statement legislators tongue or tions between Addition- Council.15 behind SB Legislative discriminatory motive racially the Texas of seven- took weeks plaintiffs ally, racially discrim- 14 tainted 14. Were SB dozen over two hour-long depositions from intent, to find at expect inatory one would witnesses, legislators including: eleven intent some hint of such invidious least and over a dozen their staff16 members deposi- and hours of thousands of files as the agencies such from state individuals aggregated were testimony, which tion Safety, the Office Department Public offi- of state a diverse cross-section State, the Office of Secretary of Instead, demonstrated evidence cials. General, Department Attorney passed 14 was just that SB opposite: also The record Services. Health State integ- promote ballot *66 voter fraud and deter legis- depositions of twenty-nine contained turnout.17 thereby increasing voter rity, staff, officials lators, agency and state their say circumstantial This is not preclearance the SB 14 taken that were not used in intent evidence of depositions were of these litigation; sixteen discrimination, Arling- proving Yet, intentional un- themselves. this legislators the at Heights, ton into inquisition probing and precedented However, rare case where of testimo- and hours of documents reams larger a See, process and result in the election (requesting from e.g., ROA 83316-17 turnout.”); Dep. related to Patrick at 106 documents Senator "[a]ll Senator Fraser voter between, among, ("To (ROA 62122) or protect integrity of the communications Governor, the office of you, the office of ma- pass a bill that the vast box—and ballot Governor, Secretary of the Lt. the office they people indicated wanted jority of had State, Safety, Department of Public pass.”); Senator passed and believed should General, any Leg- Attorney the Texas office of (ROA 61204-05) Dep. at Fraser agents, Legislators, or their staff islator purpose SB 14 was to (agreeing that the associations, organizations, lobbyists, groups, integrity “protect the fraud and to deter voter concerning the public or members of the box”); Dep. voting Duncan Senator of the require- of a State of consideration Texas’s 61091) ("The (ROA purpose of the bill 127-29 present identification to cast ment that voters prevent preserve integrity and to was to ballot ballot, through January No- a from basically harvesting people just voter 30, 2010). vember using registration cards and voter cards or general (ROA 60999); primary elec- them to influence Senator 16. Lt. Gov. Dewhurst Dap (ROA (ROA 620987); tions.”); Dep. Robert Williams at 115 Senator Senator Patrick (ROA 61062); Troy 62709) ("I Senator Fraser Duncan purpose of the bill was think the (ROA (ROA61168); Tommy Williams Senator That would prevent in-person voter fraud. in- 65509); (ROA 62692); Speaker Joe Straus Unit- people clude who citizens weren’t (ROA 62219); Rep. Rep. Debbie Riddle Patri- vote.”); Rep. Straus ed States who tried to Hebert, 61343); (ROA Bryan Gen- cia Harless 65521) ("I (ROA just general Dep. think at 49 (ROA the Lt. Governor eral Counsel 60999); security just to be certain voter ballot McCoy, Chief Staff to Sena- Janice doing casting votes were so who were those 64226); (ROA Colby Troy tor Fraser (ROA Dep. Rep. at 85 legitimately.”); Harless (ROA Beuck, Rep. Chief of Staff to Harless 61359) ("I of all the recall the answer can’t 60918). it, provide mainly to for the purposes of but showing in-person voting by integrity (ROA Dep. at 122 17. See Lt. Gov. Dewhurst (ROA ID.”); Dep. Rep. at 68 photo Riddle 61026) ("presenting the ID listed in Senate ("It 62228) critically important for us to is improvement towards Bill 14 is a substantial integrity box and of the ballot maintain the have, goals people and that is to that most percent confidence fraud, the voters to have fight because all of four these box.”). is, integrity of the ballot person divert in the points will show who the provide more confidence in voter fraud and to plaintiffs engaged searching inquiry record go would either to the Department legislative process, the circum into of Justice or a three-judge panel as a part would have to stantial evidence be over of the [Voting Rights Section Act] 5 review theory' whelming support borne process.” Because Senator Fraser was —-not by any out direct evidence—that there was “aware that everything that say- [he] was conspiracy pass but silent a ra vast ing part record,” of a public the ma- cially discriminatory law that permeated jority imply, unsurprising is that no Legislature, both houses of the the Lt. direct evidence of discrimination was found office, office, Governor’s the Governor’s unprecedented legislative discovery. agencies. and various state Price v. Cf. rely The district court did not on Fra- Dist., Indep. Austin Sch. ser’s statements to explain away the lack 1991) (upholding a district “smoking gun” of a legislative rec- no-discriminatory-intent court’s finding ord or discovery. Veasey v. Perry, 71 concerning adoption a school board’s of a (S.D. 2014). Tex. At assignment student plan noting most, testimony his simple reflects testify when decisionmakers without invok uncontroversial facts. ing privilege, logic Arlington “the Heights suggests that” such direct evi deposition Senator Fraser’s excerpts “stronger dence than the circumstantial *67 were read into the record the State proffered by plaintiffs”); evidence the see during Veasey majority the trial. The opin- Nestor, Flemming also 363 U.S. ion quotes plaintiffs from the “cross-exam- 1367, 1377, L.Ed.2d 1435 portion. ination” When asked if it was his (1960) (“[O]nly proof the clearest could public legislative belief “that the record unconstitutionality suffice to establish the go Department would either to the of Jus- a ground improper of statute on [the] [of tice or three-judge panel part a of the legislative inquiries motive]. Judicial into Section process,” 5 review Senator Fraser Congressional motives are at a best haz testified that he “did believe it would go matter, ardous and when that inquiry one of those places.” two Senator Fraser go objective seeks to behind manifesta if him was then asked this made consider indeed.”). tions it a affair becomes dubious “what sort of [he] statements made on the Senate Floor?” Senator Fraser did not Quoting Senator Fraser as “know- respond especially that he was careful ing subject that the law would be any- his floor statements about SB or preclearance” Hebert, and Mr. Lt. Instead, thing to that. simply even close he Counsel, Gov. Dewhurst’s General responded every- that he “was aware talking points senators, thing saying part was of [he] was the implication these could be construed public record.” as masks racist motives testimony Senator Fraser’s does not majority,
To the “[t]here is evidence support propo- the inference that SB proponents of SB 14 were careful unusually nents were careful about what they about what said and wrote about the they wrote and said. Senator Fraser’s purposes of knowing SB would be public legislative awareness that the rec- challenged during preclearance pro- by cess ord would be scrutinized Voting Rights under the Act.” For Justice they highlight Department three-judge court proposition, statement or under by Fraser, authors, preclearance process Senator one of is a SB 14’s statement of who public legislative testified that “the any change fact. Between 1975 and “ap attempt had to it as “an to—at best voting procedures be characterized in Texas in Washing might go.” authorities ... ... how by things federal outline proved Attorney ton, General D.C.—either Stressing the detection and deterrence of Shelby judges.” Cty. v. of three a court promoting public fraud confidence in — -, Holder, was listed as a “floor task” be- elections (2013). 2620, 186L.Ed.2d 651 cause, it, “that as Hebert understood goal the bill.” Fraser’s statement that he was Senator his Floor statements Senate aware probative statement not Hebert’s part public record is also would be why would be no turned up there evidence is a legislative record matter fact. discovery. in the private legislative He- under the Texas Constitu- public record merely bert’s the use of urges statement 12(a). Const, Ill, § art. tion. See Tex. speeches. talking points Senate Floor Staff Services office makes Texas Senate emphasize reemphasize Politicians all Floor recordings audio Senate effective, talking points they because are public'free to the available proceedings they seeking up not are to cover because charge. ulterior motives. See Citizens United FEC, 876, 912, however, facts importantly, Most (2010) (“[S]ound bites, L.Ed.2d are conveyed pro- Senator Fraser .. talking points, scripted messages (cid:127). why unprecedented about dis- bative 24-hour cycle.”). dominate the news He- private covery correspondence into support bert’s offers no statement up of SB 14 turned proponents documents proposition plaintiffs’ failure to intent. Sena- no evidence can uncover evidence discrimination testimony public Fraser’s deals with tor cover-up propo- ascribed to and floor It noth- says records statements. *68 nents. why proponents 14 would ing about SB Based 'privately.
have censored themselves have Arlington Heights, on no one could Legislators were “aware” racial of a federal court would order such predicted disparate impact unprecedented discovery from Senator The majority opinion also contends that or the Legislature. Fraser SB were aware of the dis- proponents majority a emphasizes piece also of proportionate impact it have on mi- would Hebert, by Bryan deposition testimony nority on majority voters. The relies three deputy general counsel for Lt. Gover- First, Repre- in his deposition, statements. nor, reminding that he sent an sena- email Smith, proponent Todd SB sentative emphasize de- tors to the “detection and Representatives, 14 in House the Texas protecting public terrence of fraud if recalled conclusions of was asked he goal as the of SB confidence elections about of voter he read the effect studies 14.” on minorities. testified that laws Smith conclusions, he did recall the but that not again, Once court did not the district study every for conclusion that “there’s rely on this of Mr. statement Hebert. See more you to reach.” Smith then want Veasey Perry, F.Supp.3d He- that, it opinion, less in his was volunteered bert’s statement made an email was people that “the do “common sense” sent to various staffers out laying Senate likely IDs plans photo for the on SB 14. He not have more [are] floor debate Second, minority.”18 n.25, Hebert testified that it 99 S.Ct. at that an “possible” indigency affidavit n.25; Lewis v. Ascension Parish Sch. provision would have reduced the burden Bd., 2011) (per poor voters and that suspected, he but curiam). know, did not that poor voters were dis-
proportionately minority. Contemporane- Voting Senator Fraser believes the L ous with SB 14’spassage, prepared Hebert Rights Act has outlived its useful a memo for other Senate staffers which life; Senator Fraser “not advised” opined he that it was doubtful SB 14 possible disparate impact; about precleared by would be the Justice De- Proponents “largely have refused partment without additional IDs. His explain rejection ‘ameliora- entirely opinion memo is predicated on amendments,” tive’ an attitude that comparison Georgia to a sponsors was “out character ID law that preclearance. pro- obtained It major bills” support vides some proposi- Senator Fraser indeed testified at his disparate tion that impact of SB 14 deposition that he believed the Voting was known among legislative staffers. Un- Rights Act had life”; “outlived its useful (or majority mentioned the district the district court did rely on this state- court) is Hebert’s opinion further ment, good reason, too, and with since it though he three-judge was “unclear” how a probative has no value. Nowhere in his rule, might they court “might be more deposition did Senator Fraser state that to preclearing favorable” the law.19 SB 14 sought defy Voting Rights These three statements were the uni- Act because of the perceived law’s obsoles- upon verse relied by the district court for cence. And it is odd up personal to hold his the proposition that it was “clear that the opinion of the Act’s obsolescence for an legislature knew that minorities would be inference of purposeful discrimination most affected the voter ID Veasey law.” is, part, when by majority shared Perry, at 657-58. Court. Shelby Cty., majority opinion uses the “common S.Ct. at 2628. opinion sense” of a member of the Texas Evidence that Senator Fraser answered Representatives House of “suspi- questions about SB 14’s disparate impact cions” of the Lt. deputy gener- Governor’s *69 “I am not advised” proba- is also not al counsel to leap to the conclusion that tive of intent. Senator Fra- “the proponents drafters and of SB 14 ser was asked on the Senate floor if the were of likely aware the disproportionate government “elimination of effect of documents as a the law on minorities.” Even if form- of ID disproportionately [will] these statements affect enough imply were African knowledge part Hispanics?” on the Americans and of the entire He re- Texas however, advised,” Legislature, sponded, “I am not awareness of the but he also disparate impact of a law prove does not testified that such an merely answer indi- legislature’s intent to Feeney, discriminate. cates that speaker the does “not have suf- Ellis, Representative Rodney Smith’s “common sense” opponent, Senator an SB 14 only partially nearly was mind, accurate because speculated my who that "[i]n I think lacking half of those SB 14 ID are White. they disparate ... knew the bill had a im- pact.” majority wisely 19. The rely does not the—as fleeting district court did—on the statement of ques- answer tor Ellis’s comment referred [the]
ficient information to.Sena- tor “I am not answers. Fraser’s advised” tion.” on a relied statement The district court 5. Dr. Burton excuse Vernon ties Ellis, opponent, Senator from the bill’s preventing voter to “Texas’s fraud am not “I advised” answering history suppression” racial voter sponsor the “out of character” majority notes that Dr. Vernon bill, indicated to him that major which preventing Burton ties the excuse of voter the straw.” See Fraser “drew Senator history fraud racial voter to Texas’s F.Supp.3d at It is Veasey v. Perry, suppression. report In both his and expert what Senator Ellis frankly difficult to tell on; (1) specifically he testimony, focused Fra- by Senator meant comment (2) (3) ballots; primaries; secret all-White in no way But does ser drew straw. (4) taxes; re-registration voter poll and and that Senator Fraser imply Ellis Senator instance, majority purges. In each discriminatory intent. Just the acted with notes, Burton testified that the laws’ stat- Ellis refers to opposite, fact. Senator prevent ed was to voter fraud. his “Mend.” rationale Fraser as Senator Senator this, majority From contends it would acknowledges that Senator Fraser Ellis possible infer the Legislature’s Floor that Texas stated on the he did Senate alleged discriminatory enacting disparate impact, have a intent intend SB century half a himself said on the later because and Senator Ellis Sen- stated also prevention not believe rationale was ate Floor that he did Senator voter to have a fraud. disparate Fraser intended SB lk
impact. This stands at odds with the .recitation majority’s opinion, rest of the which ex- majority “[a]nother states sen- pressly ator Dan admitted disavows district court’s reli- [then-Senator Patrick] deposition prima- that he and ance on use of propo- at his other “Texas’s all-[W]hite 1895-1944, literacy of SB 14 to table ries tests and nents voted numerous expand types poll amendments secret ballots from and meant IDs, taxes “the dis- accepted expand operating hours from 1902-1966” because IDs, issuing delay heavily voter trict relied too on the evi- of DPS stations court State-sponsored 14 until dence implementation impact of SB discrimination study dating had been hundreds As for completed, years.” other ame- back .of fact; Dr. re-registration purges, liorative measures.” This is there is in- expert report testimony no doubt that a number of amendments Burton’s rejected Legisla- that the bill’s dicate refer to Texas opponents were these generally rejections re-registration felt that these ture’s law passing were found inadequately explained. See id. at 646-47. that was unconstitutional a voter enacted rejection purge But is incorrect to connect and to law *70 preclearance in 1975 was denied amendments with Senator Ellis’s “out major immediately enjoined years ago.21 It character bills” comment. Sena- —41 Smith, (S.D. attorneys’ F.Supp. ry portion Beare the 20. See v. law in fees Briscoe, 1971), al., Texas, case); Tex. nom. Beare v. sub et Robert Brischetto in Quiet aff'd 1974). (5th 498 F.2d Cir. Impact the in the South: The Revolution 1965-1990, 233, (Chan- Voting Rights Act, (E.D. Wiley, 21. See Flowers v. S-75-103-CA eds., 1994) dler Davis & Bernard Grofman 1975); Wiley, Tex. v. see also Flowers 1982) (discussing 705-06 histo- majority’s in face of the conclu- stand Legis- flies actions taken lature. dispropor- that “the district court’s sion long-ago history
tionate reliance on was First, a background bit of in how the error,” smuggle very in the same now Texas Senate legislation considers is nec- prac- data and eradicated “decades-old essary. session, At the start of the finding in of a of intention- support tices” adopts by majority Senate vote rules that Shelby al Cty., discrimination. govern will its during business the session. 2627-29; Nw. see also Austin Mun. usually These rules are rolled over from Holder, Util. Dist. No. One prior session and then tweaked accord- 193, 201-04, 2504, 2511-12, 174 ingly. One rule that has consistently been (2009). L.Ed.2d 140 adopted since World II is the “two- War rules, ordinary
thirds rule.” Under departures only 6. “Radical normal Senate can legislation consider in the from legislative process” appears order which it on were “virtu- the calendar. ally unprecedented” However, present two-thirds senators and voting may suspend vote to the usual majority claims that “SB order of business and consider other busi- subject procedur- to numerous and radical out practice, ness of turn. In there is basi- departures” “virtually unprec- al that were cally a requirement two-thirds to consider majority edented.” The no support, has Senate, analogous bills the Texas to the except opinion, the district court’s for its cloture rule in the U.S. Senate. This occurs court, turn, conclusion. The district re- because of “blocker A bills.” blocker bill is only speculations opposition lies on the bill, a routine or non-controversial such as legislators, many plaintiffs of whom are dealing one landscaping Capitol at the case, procedural motivations Chamber, or the decorations in the Senate underlying passage. Veasey SB 14’s placed is first on the It agenda. Perry, major- 647-51. The intentionally passed. get almost never To ity expressly condemns the district court legis- around the blocker bill and consider “mistakenly part because relied in following agenda, lation it on the a two- speculation by opponents the bill’s about required suspend thirds vote is the usu- motives,” proponents’ yet pre- it condones receiving al order of After business. cisely speculation Sadly, such here. neither vote, required legislation two-thirds majority nor the district court tells the can In a passed by majority vote. legislative saga entire as contained in the senators, chamber with 31 11 can block record. under the two-thirds rule. As will be dis- cussed, ways there are various around the pre-2011 leg- Most of the district court’s rule, many two-thirds of which are com- history public islative citations are to web- monly employed. votes, sites that show the results of expert reports not to the record or Beginning before the 2005 session of the chronicle the drama behind those results. Legislature, opinion polls Texas showed See, e.g., id. at 645-46 nn.71-77. The entire majority supported that a of Texans large Further, story appears expert reports offered photo voter ID laws. Texas offi- (Drs. plaintiffs simply Lichtman and cials believed that some Texans did Davidson) testimony they and the of Lt. not vote because did not have confi- Gov. Dewhurst, necessary system which are dence or that their votes under-
(book history). expert report izing cited in Burton summar- this could important these related other measures and not be matter. To address would the ID law considered before the end of session. concerns, a voter proponents of negotiate opponents to began —almost ID was in the 2007 Voter reintroduced compro- a uniformly Democrats —about passed session and legislative Texas and pass could both houses mise bill that Senate, Regarding majority House. with the over- law accordance become says nothing says and the district court citizenry in opinion of the whelming public only that it was out of committee reported voicing support for Despite private Texas. “[wjhile initially rules were sus bill, language they a believed would adding to take of order pended up out concerns, gener- their some of address reading, second the vote was reconsidered to part proponents al efforts on and the measure failed. The rules were not opponents remained intransi- compromise, suspended, point which the bill died.” gent. concerns They private even voiced story The is far Id. true more 646.22 “upside op- in their they were down” than enthralling the district court’s sterile for a position despite strong support public recitation.
bill, pri- they held out feared but because opponents Eleven of the bill—all Demo- they a if in favor of mary opponents voted session, pledged going into the crats^—-had ID voter bill. prerogative, their legislative as was any voter ID bill under two-
Against
backdrop,
Legislature
block
though
rule even
Lt. Governor
ID thirds
De-
the first iteration of a voter
proposed
a
attempted
compro-
whurst had
to reach
it,
majority ignores
bill
them
mise with
before the session on the
bill,
says only
court
that “[t]he
the district
However, opposition
of the
substance
bill.
being reported
of the Elections
after
out
having
Mario Gallegos
compli-
Senator
Committee,
passed
died
the House but
a
transplant,
cations from
liver
which
Affairs.”
the Senate Committee on State
opponents
meant that Democrat
lacked
actually happened
Id.
645. What
.at
votes to block the bill
his absence.
House,
passed
after the bill
the Texas
doctors,
Against
Gallegos
advice of his
it to
proponents
the Senate attached
specifi-
returned to Austin for the session
another elections bill in order to avoid
cally
against
so he could
the voter ID
vote
Senate,
rule in the
is a
two-thirds
which
Deuell, Republican
Bob
bill. Senator
legislative
common
on related
maneuver
bill,
to have a
proponent
paid
medi-
Rodney
to fili-
bills. Senator
Ellis vowed
supply company put hospital
cal
bed in a
bill,
the combined
came to
buster
and even
adjacent to
chamber for
room
the Senate
wearing
Chamber
tennis shoes
Senate
Dewhurst,
Gallegos. Lt.
Gov. David
also
pro-
to comply
and a catheter
with Senate
agreed
Gallegos 24-
Republican,
give
against
sitting
hibitions
and restroom
notice
any
hour
before
vote on
during floor
his
speeches.
breaks
Before
ID bill would occur.
begin, however, opposition
filibuster could
Meanwhile,
Senator Leticia Van
Putte invoked a
de
Democrat Senator Carlos
germaneness rule and the
bill
flu
combined
became
with the
Uresti
bedridden
dur-
was withdrawn.
voter ID
was then
from the
ing
bill
the session. He was absent
15, sent
May
to House-Senate conference com-
when Senator Fra-
floor
mittee,
ser,
but it was
delayed
sponsor,
behind several
the voter
bill’s
moved
bill,
initially suspended"
past
...
a blocker
The "rules
that the
two-thirds move a bill
rule;
first under
district court refers
is the two-thirds
which would
considered
ordi-
thus, “suspending
getting
nary
the rules” refers to
rules.
*72
to
nor
suspend
again
order of business
Dewhurst
reached out to
regular
Demo-
bill,
opposed
crats in the Senate
required
legis-
which
the two-
who had
consider the
lation in 2005 and 2007. This was
testified that
is a
to no
thirds vote.' Dewhurst
avail,
opponents
remained
legislative
“try
to
entrenched.
“fairly
practice”
common
session,
beginning
At the
of the
to avoid
your
you
and move
bill when
have
the two-thirds rule that
leg-
had thwarted
happens
votes on the floor” and that it
adopted
islation in
the Senate
a rules
every
monthly
legislative
least
session.
change
legislation
that allowed voter ID
to
opponents
The
could not block the bill and
proceed
majority
under a simple
vote in-
it passed,
Gallegos voting
with Senator
change
stead.
rules
was made ma-
it,
(just
against
one more than two-
19-9
jority vote. Senator Shapleigh raised two
thirds).
Senator
was
Democrat
Whitmire
points
order
objecting
the rules
floor, and Lt.
also not on the
Governor
change,
Lt. Governor
but
Dewhurst over-
him
Dewhurst
on
times
called
numerous
ruled them
the rules of
“[b]ecause
him in
Mean-'
skipping
before
the vote.
majority of
permitted
Senate
the Sena-
Uresti,
while,
alerted
Senator
about
rules,
change
tors
Senate
so ...
.
senator,
hastily
vote
another
returned
change] was entirely
[this
within the tradi-
to the Senate chambers as the vote was
tion
rules of the
According
Senate.”
initially
occurring, but
missed it.
Davis,
Parliamentarian,
Karina
the Senate
After the
had been
vote
held and
has
designated
catego-
the Senate
two
fell,
gavel
Shapleigh
Senator
Democrat
special
ries of bills for such
treatment
verify
moved to
the vote on
grounds
redistricting
since 1981:
and voter ID. No-
actually
that Senator
had
been
Whitmire
tably,
categories
both of these
have to do
present
improperly
for the vote and was
sense,
with elections. This makes
as such
skipped. Lt.
testified
Governor Dewhurst
very
cut to the
heart of
matters
how a
request
he accommodated the
because
representative democracy will function and
important
he knew “that this
bill
[was]
“highly political judgments,”
concern the
Republicans,”
to the
and to the
Democrats
Strickland,
1, 17,
Bartlett v.
controversy.”
and he
want
He
“didn’t
(2009)
Before the where morning, which members conclusion, testify. hearing’s At the again agenda, would be on the Lt. Gover- could Senate) change provided rather than traditional committee The 2009 rules also legislation voter ID would be referred to the More on that to come. structures. (i.e. Senate Committee of the Whole the entire *73 time, upheld This after law had been how- Indiana’s the Senate. passed the bill and by Court in ever, be source the House would Crawford26 Georgia’s preclear- law that had received House leaders ex- ID’s demise. voter compromise, Department and ance from the of Justice. to willingness a pressed the district indict Texas majority ameliorative meas- and court many included so-called delay implementa- being oppo- to supposedly unresponsive for provision and to ures a introducing and for increas- passed. whatever sition needs until 2013 of tion ingly equally plausible in strict bills. At least parties, both opposition Thwarted perceived legislative that proponents moved the is a leaders instead bill House intransigence in the face of on necessity decided passed. opponents House Senate were strategy “chubbing” “wedge to kill the this issue the Democrats on a called successful, regardless to of the fact oppo- going agree not This was bill.24 House super majority ... a of Texas voters chubbed for 26 hours25 over five [that] nents in ID.” bills, all were favor of Voter days prevented [of races] and over includ- it, ID, put political court “the being passed. As district ing voter Governor considered, ultimately legislators upon” Perry depended lives of some but decided Perry, 71 Veasey ID on the for voter ID’s success. against, placing agenda special legislative session he later at 658. called. end, Perry designated To that Governor legislation emergency. as an He again
After the
session
with- voter ID
ended
February
put
in
2010: “I
being passed,
propo-
might
a bill’s
voter ID
said
as well
out
Legislature]
today:
decided that the 2011 session would
on notice
We’re
[the
nents
ID
can
repeatedly reaching
going
different. After
out
to do voter
We
2011.
opponents, incorporating
early,
some of their
either do it
or
can do it late. [The
we
desig-
amendments/suggestions,
Legislature’s]
emergency
call.”
repeatedly
being
by extraordinary
require,
rebuffed
nation
but did not
vot-
legislative
permitted,
during
to be
maneuvering, proponents
pass
legislation
decided to
er
considered
days of the
It
they
whatever law
could that was modeled the first 60
2011 session.27
Chubbing
analogous
Wendy
is
Senator
2013 fili-
24.
in the Texas House
former State
Davis’s
filibustering
against
legislation
just
the Texas
With a
buster
abortion
lasted
Senate.
chub,
filibuster,
filibuster,
single
speaks
topic
A 26
it a
senator
on a
hours.
hour
were
long
prevent
longest
filibuster
amount of
in order to
would be
for
sixth
good
time
longest
prevent
history
Texas
further consideration. House rules
fil-
in the
Senate and
(43 hours)
ibustering,
any representative
but
allow
since the record
was set
"
Legislative
ability
speak
any
Chubbing,
for 10 minutes on
he
See Filibusters and
bill
Ref-
chub, representatives
http://www.lrl.state.tx.
To
favors.
use their al-
Library
Texas,
erence
speak
any
lotted minutes to
in favor of
us/whatsNew/client/index.cfm/2011/5/23/
Filibusters-and-Chubbing
not,
(last
June
legislation,
visited
all
routine or
that is consid-
27, 2016).
target
multiple
ered before the
bill. When
representatives
speaking privi-
combine their
bills,
leges
they
multiple
across
Attorney
are able to
26. As demonstrated
General
case,
target legislation
the clock
run
out on
the Indiana
slated
of Indiana as amicus
meaningfully
to be
the session.
not
different.
considered later in
and Texas laws are
Indiana, et al. as
See Brief of the States of
Abbott,
Veasey
No.
Amici Curiae at
apparently
kept
25. There are
no records
on
29, 2016).
Apr.
14-41127
length
the historical
number
chubs in
House,
kept
the Texas
information
but
analogous
legislation, along with
length
the number
domain
filibus-
Eminent
put
couple
topics, were also
perhaps
ters in the
To
of other
Texas Senate.
the 26 hour
context,
designated emergencies
chub into
in this
the 2011 session.
witness
case and
Legislature
that the
could rea-
However,
also meant
committee structure.
this was
sonably
it would be called
into
believe
back
done
legislation
because the
was
going
legislation
session if voter ID
special
basis,
be considered on an expedited
during the
passed
regular
session.
commonly
this is a
used and
way
effective
legislation early
Considering
to disseminate information about such leg-
*74
session, however, had a tactical advantage
islation to the entire Senate.30 Far from
prevent
it would
opponents
because
“unusual,”
being
as the district court de-
chubbing
they
as
had
done
2009. Both
it, Veasey
scribed
v. Perry, 71 F.Supp.3d
Democrats and Republicans
thought
also
it had been used for issues such as
that passing
legislation early-
the
in the
school finance and redistricting within the
“get
session would
this issue behind them”
past decade before 2011.
so that
there “wouldn’t
spillover [be]
other issues” for which there was a chance
To
happened
avoid what
of bipartisan cooperation.28 Proponents
Senate rolled forward the rule from the
that opposition protestations
also noted
2009 session that allowed voter ID bills to
early
likely
consideration were
stall tactics
be considered
simple majority rather
employed
prior
similar to those
in the
than two-thirds vote. The majority faults
designated
three sessions. The bill29was
this,
Legislature
for
but the decision is
priority of the’ Lt. Governor and according-
easily explainable on political grounds—
number,
ly assigned a low bill
but this does
majority party
wanted to avoid the
“expedite
not
consideration of the bill in
two-thirds rule that had blocked similar
any way except
putting
for
members on
legislation
prior
Further,
in a
session.31
as
notice that it’s one of
Lt.
[the
Governor’s]
discussed,
just
Legislature
could rea-
priorities.”
majority
takes
with
issue
sonably believe that Governor Perry would
the Senate’s consideration
14 by
of SB
(i.e.
call an emergency session to
Committee of the Whole
the entire
consider vot-
Senate) rather than through its traditional
er ID legislation
passed
if not
during the
Further,
rule,
emergency legislation
28.
all of the
is now the three-fifths
which has the
early
was considered
reducing
in the 2011 session.
effect of
from 21 to 19 the number
necessary
legislation
past
Senators
to move
Actually,
photo
blocker bill. Under the new
29.
nine
ID
threshold in the
voter
bills were
session,
Senate,
filed
the Texas Senate
but Lt.
De-
was able to
Governor
pass Republican political priorities
whurst selected Senator Fraser’s and asked
such as
priority legislation.
open cariy, campus carry, moving
public
him to refile it as
Senator
integrity
sponsor
previ-
County
Fraser had been the Senate
unit from the
Travis
District
many
Attorney’s
Rangers,
ous bills that failed. That there were so
Office to the Texas
and an
just
politically
grading system
bills filed
public
demonstrates
how
A-F
for
schools. All of
important
legislation
voter ID
designated,
was.
these bills had been
as SB 14 was
2011, priority legislation by
the Lt. Gover-
assigned correspondingly
Additionally, legislation
nor and
low bill
considered in the
Ironically,
passed
numbers.
Committee of the
Democrats also
Whole can be referred to
hours,
just
the entire Senate
few bills out of the Senate under the new
after
so it is
important to ensure the entire Senate has all
three-fifths rule that would have been blocked
rule,
important
including
information it needs.
under the old two-thirds
one
that would make it easier for some state em-
ployees to work from home and have more
necessary
31. As if further evidence is
to show
Batheja,
work hours. See Aman
suspension
that the
With-
of the two-thirds rule was
.flexible
Rule,
motivations,
political
Moving
out
racially
Two-Thirds
Senate
Patrick’s
and not
dis-
ones,
Priorities,
19, 2015),
criminatory
(May
https://
is notable that the Texas
Tex. Trib.
vote)
(by majority
completely
Senate
away
www.texastribune.org/2015/05/19/loss-two-
did
two-thirds rule in the 2015 session. It
thirds-rule-senate/.
legislative priori-
guessing
two-thirds rule does
Second
regular session.
why
Legislature pri-
sessions because
during special
Texas
apply
ties
filed,
remedy
cannot be
as was
blocker bills
voter
oritized
fraud
session that con-
special
compelling
in the 2011
case
evidence
without
ID
legislation. Voter
redistricting
sidered
history of
Ignoring
legislative
voter
considered without the
going to be
previous legislative ses-
during
ID
three
way or the other.32
rule one
two-thirds
sions,
majority
Legis-
chides the 2011
explains why
history thoroughly
This
busy
14 in a
prioritizing
lature for
SB
eventually
con-
legislation
majority’s
session'without —in the
view—
majority dis-
14—which the
tained
problem
evidence that there is a
sufficient
great magni-
problem
not “a
misses as
justify
voter fraud in Texas to
in-person
before what
tude”—was considered
*75
critiques
14. The court
that SB
did
SB
“pressing
are other
mat-
majority believes
special
mail-in
a
single
not
out
ballots for
importance to Texas.” In
great
of
ters
course, as the ma-
degree
scrutiny.
Of
addition,
eventually
the 2011 bill
notes,
jority
rightly
Legisla-
itself
“[t]he
several nota-
into SB
contained
turned
priorities
to set whatever
ture is entitled
First, in an effort to combat
provisions.
ble
gratuitous
wishes.” These
observations
fraud,
provision
a
multiple types of voter
legislative prioritization are there-
about
that would have addressed
was included
point
the federal courts
fore beside the
fraud,
just
in addition to
registration
voter
expertise
authority
question
lack the
ID
fraud that voter
laws combat.
in-person
prioritization of various is-
legislature’s
the
was removed because
provision
This
too,
one-subject
Legislature
that the
also
prohib-
rule that
sues. Recall
Senate has
fraud,
addressing
type
this other
types
it from
to address other
ited
wanted
Next,
provisions
14.
fraud,
in SB
several
pre-
fraud
but was
registration
such as
prior
into
voter ID
14 were inserted
SB
one
doing
vented from
so because of
voter
the
at the behest of members of
legislation
objection
based on one-sub-
opponent’s
minority.
example,
For
Senators
Democrat
ject
legislation.
rules for
Shapleigh
were concerned
Gallegos
however, Crawford,
significant,
More
impact
elderly,
on the
so
about voter ID’s
flatly rejected the ma-
the
Court
age exemptions into
proponents inserted
intimation that record evidence of
jority’s
14 that passed
of SB
the Sen-
version
required
justify
-to
voter
fraud is
Additionally, opponents’
ate.
concern for
fraud.
preventing
interest
voter
State’s
impact
poor during prior
the law’s
on the
8. “While
themselves in the
presence or
an indigency
absence of
excep-
following
mantle
Indiana’s voter
of
tion is a matter of constitutional signifi-
'proponents
ID law ...
the
SBof
U
cance, SB 14
contain
does
provi-
ameliorative
took out all the ameliorative
provisions
indigent persons.34
Election
sions
the Indiana law”
of
certificates,
identification
which
be
The majority
import
seeks to resist the
ID,
properly used as a
of
form
Tex. Elec.
of
that
arguing
Texas’s voter
Crawford
(West
2014),
§
Supp.
63.0101
are
Code
ID law is
different because
lacks some
charge
available free of
and have been
provisions
indigents
ameliorative
law,
since
signed
the bill
into
Tex.
present
majori-
law.
were
Indiana’s
The
TRAnsp.
521A.001(b) (West 2013).
§
Code
issue,
takes
with
ty
generally,
Legisla-
the
Legislature
983,
The
passed
also
which
rejection
ture’s
of various amendments
eliminates the fee associated with obtain-
permitted
that would have
additional
ing a
a birth
copy
certified
of
certificate in
of ID
forms
to be used and allowed the use
order to
an EIC. Tex.
obtain
IDs with irregularities.
majority
of
Health &
Safety
191.0046(e) (West 2015).
§
issue,
also takes
with
Code
specifically,
the
provisions
These
fees
eliminate
associated
Representatives’
House of
removal of Sen-
amendment,
obtaining
underlying
ator Duncan’s
which
the
documents
would
required
necessary to
provisional
have
ballot to
obtain the EIC. There is no
accepted if
person simultaneously
showing
Legislature
the
exe-
whatsoever
279,
reiterate,
Feeney,
33. See
442
99
34. To
law
U.S.
S.Ct. at
the Indiana
and the Texas
(awareness
different;
potential disparate impact
2296
really
many
law
aren’t that
intent).
enough
prove
Feeney
is not
also
provisions
“ameliorative”
were re-
legislature’s
pass
held that the
failure to
a bill
jected were in fact contained in earlier itera-
discriminatory impact
with less
cannot evi-
tions of the
bills introduced
purpose:
dence
invidious
courts are not
2009,
Democrats,
at the behest
but the
empowered
disapprove
laws under
opposed
anyway.
Democrats
those bills
Equal Protection clause for this reason. Id. at
280-81,
tried to 1941, L.Ed.2d indigent voters.35 116 S.Ct. not facilitate U.S. would (1990 (1996) redistricting); Upham census examples “Contemporary state- Seamon, v. sponsored discrimination” (1982) (1980 census redistrict L.Ed.2d circum- “[t]he asserts that The'majority Weiser, v. 412 U.S. ing); White discriminatory intent is (1970 (1973) evidence stantial 2348, 37 L.Ed.2d examples by contemporary augmented v. redistricting); census federal White Re in the rec- discrimination State-sponsored gester, cite several exam- goes It then ord.” (1973) (1970 census state re L.Ed.2d opin- the district court’s ples, taken from In districting). Perry, v. LULAC Su ion, recent discrimination alleged applied upheld 2 and preme Court Section minorities. This recitation against Texas majority-Black but struck down district examination, and on with errors
riddled against district as Latinos another dilutive ac- forty-plus year into old disintegrates though Legislature had even Texas tions. majority-Latino another district to drawn Vera, first that “as late as majority claims In v. remedy dilution. Bush minori- attempted suppress Texas plan Legislature’s preclearance, received rolls, ty through purging the voting yet gerrymandering the Court found racial re-registration poll tax and after its former Legislature increased racial because unconstitutional.” requirements were ruled minority voting power when it drew three F.Supp.3d at Veasey Perry, (citing majority-minority districts and new recon 635). Thus, “contemporary” most ex- existing major to make it a figured one court majority or district ample that Seamon, ity-Black Upham district. In can cite was preclearance related to for two issues *77 power districts and district court’s sua attempt to find recent exam- In its next reject legislative choices. In sponte on the ples intentional discrimination Weiser, congressional v. districts White Texas, the part majority the credits after the were chal drawn 1970 census every that “[i]n court’s statement district lenged on the of the Constitution’s basis 1970, Texas has redistricting cycle since doctrine, Reynolds one-person-one-vote see to have violated the VRA been found Sims, 1362, 377 U.S. v. (quoting racially districts.” gerrymandered (1964), and the suit had L.Ed.2d noth Perry, 71 at 636 & Veasey v. Voting n.23). ing Rights to do with or the wrong. race just plain assertion is This in did Only Regester, Act. the sup- cases as White The district court cites five 399, 126 find that multi-member state port: Court two Perry, LULAC (2006) (2000 in 1971 invidi- legislative L.Ed.2d 609 districts drawn S.Ct. Furthermore, may http://www.sos.state.tx.us/ have a Sec’y while Texas St., Tex. (last what comparatively elections/voter/reqvr.shtml strict law in terms of ID visited June quite presented, its laws are 28, 2016) election registration (providing online voter regarding encouraging turn- permissive voter flexibility applications), and of mail-in bal- out. photo requirements for without lots approximately provisions These include: disabled, elderly and Tex. Elec. Code early voting period week with no restric- two tions, "context,” §§ it 82.002-003. Taken in is as 85.001(a), § wide avail- easier, Tex. Elec. Code register easy, and vote in if ability registration applications, see of voter many in than it is other states. Texas Request Registration Applications, Voter for ously against course, discriminated “legislators minorities. and administrators are Thus, attempt in its find Texas is a properly concerned with balancing numer- repeat violator of Voting Rights Act considerations,” ous competing Arlington its redistricting, majority decennial Heights, 429 U.S. at S.Ct. court misstate cases. district so would be unsurprising to hear legisla- tors majority advancing
The
next
for
different
sup-
faults Texas
rationales for
Department
objection
of Justice’s
under
porting
particular
case,
bill. In this
how-
preclearance to at
least one district
each
ever,
depositions
legislators
various
redistricting
of Texas’s
plans between 1980 who
voted
favor of SB 14
revealed
present.
and the
To the extent
unattri-
this
purpose
consistent
behind this voter ID
accurate,
buted statement
is
this is not
law: to prevent thereby
fraud and
probative
legislature’s
intent to dis- promote
integrity
voting pro-
against
criminate
minorities
2011. Pre-
cess; in the
legislators
minds of some
this
clearance
“nonretrogression”
involved a
improve public
would
confidence
possi-
standard,
States,
see Beer v. United
425 bly increase voter turnout.37 Preventing
U
lators
shifted
purposes
between these
when the rationales
“challenged or
were
majority
also criticizes the Texas
disproven by opponents,” similarly proves
Legislature
legislators allegedly
because
statement,
too
By
majority,
much.
various,
proffered
“shifting” rationales for
court, presumably
like the district
means
Citing
the law.
opin-
the district court’s
ion,
not,
view,
Legislature
that the
did
majority
its
states
the reasons
they
provide enough
support
the law “shifted as
chal-
evidence to
its
were
lenged or disproven by opponents.”
proffered
Of
interests in the face of oppo-
*78
court,
majority
36. Both the
any legal
and the district
corrected
infirmities in it. The 2013
n.23,
Veasey Perry,
F.Supp.3d
v.
71
at 636
cite
Legislature subsequently repealed
Texas
its
States,
F.Supp.2d
v. United
Texas
133
887
original plan
adopted
the court's interim
(D.D.C. 2012)
say
that two of the 2011
Abbott,
plan
generally
in full. See
Davis v.
(for
redistricting plans
Texas
the U.S. House
207,
(5th
2015),
F.3d
209-13
Cir.
cert. de
Senate)
Voting
and the Texas
violated the
-
nied,
-,
U.S.
136 S.Ct.
note, however,
Rights Act. Both
that the D.C.
(2015).
L.Ed.2d 427
The remediation under
opinion
by
District’s
in that case was vacated
by
Legislature
taken
the Texas
undermines
—States,
Supreme
Court.
v.
Texas United
discriminate,
any inference of an intent to
-,
U.S.
dence or by Republicans spurred action guiding principle ful to this adherence “currently power” in legislation possible is it judicial review legislative its to the branch preserve history legislative recited above ability to independence and its rightful struggle that the over SB cen- shows function.”). “shifting rationales” theo- not race. Partisan- partisanship, tered on then, support no inference ry, offers however, racism, is not nor is it a ship, Legislature intentionally the Texas on this record. The ma- proxy for racism passing in against minorities discriminated however, jority, “extraordinary connects accompanying the measures procedural 14 to a ‘seismic demo- passage of SB legislative ” have con- 11. All measures shift,’ suggests that the Re- graphic spired against to work African- gain partisan in could publicans power American voters But to advantage through law. that, court acknowl- repeat: no matter the even the district opined Dr. Burton photo requirement voter ID edged interests have al- party power, political multiracial, bipartisan public deny African-Americans had wide ways worked to support. right “every to vote: time that African-. have, fact, perceived been Americans Indeed, Court Crawford ability par- to vote and increasing their partisanship held that specifically process in the there has been ticipate law, passed voter ID also Indiana’s deny to either them the legislation State basis, party-line could not defeat straight the vote or make it vote or at least dilute purposes deterring the law’s fraud. 553 participate much more difficult for them to And al- *79 equal an as the State of basis Whites v. though Supreme Court LULAC Texas.” Legislature Perry found the Texas belied, however, Congressional 2 in by violated Section one This conclusion is census, after the 2000 Dr. himself cites. district drew materials that Burton of instance, Legislature did not accuse the Court found Court For racism, The partisanship. but at most of redistricting that Democratic-led un- demographic shift” has been favoring “seismic gerrymanders 1990s led to racial derway twenty years for at least upheld photo Re- voter ID against laws Section —as every publicans major took over statewide 2 challenges,38others upheld have them as office in Texas. The inference that matter,39 a constitutional but no circuit a sudden implies efflorescence of racial court yet has a photo invalidated voter ID by bias is contradicted v. Perry LULAC law under Section 2. majority’s errors a nonsequitur. and is depart lead it to text, the statute’s
resulting in
adoption
of non-textual
that,
and irrelevant
in practice,
“factors”
reasons,
weak,
For all these
or un
amount to little more than a naked dispa-
supported
by
inferences claimed
the ma
impact
rate
test. But
Tex. Dep’t
of.
of
jority
by
are contradicted
the overwhelm
Hous.
Cmty.
&
v.
Inclusive
Affairs
ing
complete
evidence from the
record that
—Inc.,
Project,
-,
Cmties.
U.S.
negated any racially discriminatory pur
(2015)
processes
leading to nomination
partic-
to
equally open
are not
minority
tion ...
whose effects often undermined
citizens
by members
of a class of
ipation
Clearly, the formula for a
representation.
(a)
that its
in
by subsection
protected
2
than in-
requires
violation
less
Section
less
than
opportunity
have
members
tent,
racially
far
mere
but
more than a
par-
to
the electorate
members
other
of
disparate impact.
and to
political process
ticipate in
and the
Contrary
Su
statute
choice.
The
representatives
their
elect
Court,
majority’s
preme
discussion be
a protected
to which members
extent
Supreme
gins
misquoting the
Court
...
office
is
elected to
class have been
rights
2
say
voting
that a Section
violation
may be consid-
circumstance which
one
showing discriminatory
“proved by
can be
Provided,
in
nothing
That
this sec-
ered:
Court,
alone.”
Supreme
effect
The
howev
right
a
members
to have
tion establishes
er,
misguided; quoted accurately,
not
was
class
in numbers
elected
protected
2
the Court stated that Section was re
proportion
popula-
in the
equal
their
make
a violation
vised “to
clear that
could
tion.
by showing discriminatory
proved
effect
added).
10301(b)
§
(emphasis
52 U.S.C.
legal
alone and to establish as the relevant
language
Congress
fashioned this
’
test,
applied
standard the ‘results
a then-recent
Court de-
overturn
Court in White v.
Thorn
Regester....”
voting
violations to
limiting
rights
cision
30, 35,
burg Gingles,
v.
478 U.S.
S.Ct.
dis-
state-sponsored
of intentional
cases
(hereaf
(1986)
2752, 2758,
305 generation new cal have or by Gingles, currently mized to the conditions that claims, courts abridgement” produce “vote have against discrimination members the 2 apply found it hard to Section results protected of the class. Nevertheless, majority adopts test.41 the a League Voters Women N.C. v.
two-part Gingles-heavy framework for
(4th
Carolina,
224,
North
769 F.3d
240
analysis
abridge-
of SB 14 and other vote
—
2014),
stayed,
U.S. -,
Cir.
mandate
initially
ment cases. The framework was
243,
190 L.Ed.2d
cert. de
articulated in a vacated Sixth Circuit deci-
—nied,
-,
sion and
the Fourth
by
followed
Circuit.
(2015);
L.Ed.2d 702
State
Ohio
Conference
The test is as follows:
Husted,
NAACP v.
768 F.3d
standard,
challenged
practice,
[1] [T]he
(6th
2014),
moot,
Cir.
as
vacated
2014 WL
impose
or
a
procedure must
discrimina
(6th
2014).
Cir.
tory
protected
burden on
of a
members
class, meaning
pro
that members of the
part
The first
test recapitulates
the
opportunity
tected
less
than
class have
requiring
racially
Section
discriminato-
other
electorate to par
members of the
ry
voting,
burden on
...
which “mean[s]
ticipate
process
in
political
the
and to
opportunity”
minority
less
citizens “to
choice,
representatives
elect
of their
and participate
process.”
political
the
[2]
[TJhat
burden must
.
in part
second
part
draws
“Gingles
fac-
by
caused
to social
tors”42
prove causality
or linked
and histori-
to
between “the
Gingles
politi-
41. The Seventh
found the
fac
3.
Circuit
extent to which the State or
voter-qualification
“unhelpful
unusually
tors
large
cases.”
cal
used
subdivision has
Walker,
districts,
majority
require-
Frank v.
Cir.
election
vote
2014).
ments,
prominent
anti-single
provisions,
Other courts and
election
shot
or
law commentators
also been unsettled
voting practices
have
other
or procedures
question
Gingles
opportunity
whether
factors
enhance
See,
apply beyond
should
vote dilution claims.
against
minority
discrimination
e.g., Ohio State
NAACPv. Hust
group;
Conference
ed,
(“A
768 F.3d at
clear test for
Section
slating process,
4.
if there is a candidate
yet
emerge.”);
vote denial
has
to
claims
minority
whether
of the
the members
Galvin,
(1st
Simmons v.
F.3d
n.24
group have
denied access to that
been
2009) ("
Gingles
progeny
'While
and its
process;
generated
have
standard
well-established
5.
the extent
members of the
to which
dilution,
satisfactory
for vote
test for vote
minority
political
group
the State or
yet
denial
Section 2
cases under
has
effects
subdivision bear the
of discrimi-
emerge
....
Court's semi
[and]
education,
nation
em-
in such areas
opinion
Gingles
nal
...
is of little use in
health,
ployment and
which hinder
"
Tokaji,
(quoting
vote denial
Daniel P.
cases.'
ability
participate effectively
their
The New
Where
Vote Denial:
Election
political process;
Reform
Act,
Voting Rights
Meets the
57 S.C. L. Rev.
political campaigns
6. whether
have been
(2006))).
or subtle
characterized
overt
racial
appeals;
Gingles
42. The nine
are:
factors
7.
the extent to which members of the
history
minority
any
group
1.
the extent of
of official
been elected to
dis-
have
jurisdiction^]
political
public
the State
crimination in
or
office in the
right
significant
8.
lack
subdivision that touched
whether there is
minority group
regis-
responsiveness
part
members of
of elected
ter,
vote,
participate
particularized
officials to the
needs of
or otherwise
process;
minority group[;]
in the democratic
the members of the
voting
underlying
policy
in the elec-
the State
extent to which
whether the
political
political
or
use of
tions of the State
subdivi-
subdivision's
such
racially polarized;
voting qualification, prerequisite
sion is
to vot-
*82
LULAC,
753;
Council
at
see also
fact that
tion. Id.
and the
voting rights
burden on
Clements,
disparately
999 F.2d
867
minorities
No.
affects
this burden
4434
1992) (en banc) (“[Sjocioeconomic
(5th
and histori-
with social
it interacts
because
Cir.
prevented
discrimination,
discrim-
that have
history
cal conditions
and a
disparities
currently, in the
minorities
against
more,”
ination
satisfy Section 2’s
do not
without
at
Gingles, 478 U.S.
(citing
past,
standard).
or both.”
legal
(“The
of a
essence
at 2764
talis-
Second,
not ascribe
Gingles did
law,
a certain electoral
§ 2 claim is that
Factors;
to the Senate
significance
manic
with social
interacts
practice, or structure
three-part
test to
prescribed
the Court
in-
to cause an
conditions
and historical
multimem-
impact of
gauge
disparate
enjoyed by
equality
opportunities
in the
reaching
legislative
ber
districts —before
pre-
to elect their
white voters
black and
analysis
2
the Senate
the Section
—with
representatives.”)).
ferred
Gingles,
liability.
to confirm
Factors used
error on
Gingles factors is
Using the
48-51, 106
at 2765-67.
at
S.Ct.
478 U.S.
First,
elaborated
as will be
several levels.
sufficiently de
later,
alone
on
the statute
fac-
Third,
extra-statutory Gingles
2 vote
of Section
scribes how violations
Report
ac-
originated
the Senate
tors
The
proved.
claims are to be
abridgement
principally
2
amended Section
companying
legal
claim the same
Report cannot
Senate
Reflective of
guide redistricting cases.43
law.
status,
any,
that of the enacted
if
Court,
adopt-
reality,
point
it suffices to
purposes,
present
For
an
to its
factors as
add-on
ing the Senate
step
two-part
the second
out that
dilution, specifically noted
for vote
test
test,
and historical conditions
linking social
non-comprehensive and non-man-
they are
burden, derives from
to the
datory. Gingles, 478 U.S.
im
language, quoted
Gingles’ descriptive
majority barely alludes to
The
at 2763.
above,
purport
did not
mediately
which
fac-
shortcomings
describes the
these
but
The second
freestanding rule of law.
be a
guidance.”
tors as “salient
not
“because
does
step is also flawed
inherently
two-part
flawed
Applying this
by the defen
discrimination
distinguish
test,
the district
majority approves
discrimination.”
persons’
dants from other
im-
“disparately
finding
court’s
SB
Walker,
F.3d
Frank
they
minority voters because
pacts” racial
2014),
equally
an
di
reh’g denied
—
Anglo peers to
likely than their
are “more
denied,
court,
cert.
vided
underlying
find-
qualifying
lack”
ID.
U.S. -,
The Gingles moves to the (unfortunately) reflect differences among proof disparate Whites, factors for that the impact Hispanics Blacks and sociolog- is a obtaining travelling birth certificates and part by repeatedly factors in mischaracteriz- DMV ing offices. distorting arguments. the State’s majority neglects 45. The to mention other ex- factors, Gingles 48.Two the existence of ra- emptions photo requirements to the cially polarized voting and the lack of racial religious accommodation and disaster loss. campaign appeals, plainly are irrelevant factor, history here. Another of state- 46. McDonald v. Bd. Election Comm’rs sponsored by discrimination recounted Chi., 22 L.Ed.2d majority already legally has been shown to be (1969) (upholding allowing a statute unsupported, supra, see discussion some, other, absentee). but not citizens to vote “long-ago.” Legislature passed The SB require Laws that voters to cast different virtually proportional 14 had minority repre- long kinds of ballots are valid so as there is sentation, factor, rendering Gingles another relationship legitimate “some rational to a minority the extent of elected officials 1408; state end.” Id. at 89 S.Ct. at see state, throughout point. beside the Final- Calio, (3d also Biener v. ly, showing Legislature "unresponsive” 2004). Oregon requires The State of all solely to minorities with reference to the Moreover, greatest ballots be cast mail. preceding passage 2011 events of SB 14 fun- fraud persons risk exists when unauthorized damentally Gingles misunderstands this fac- elderly, direct an immobile voter's choices on tor, which to the relates overall conduct of a get mail-in ballot. That the ballots could lost representative government applies as it or stolen from the mail is no more of a risk moreover, legislative districting; as has been than the Security loss of a Social check. shown, majority and district did court not elaboration, Space permit legislative does not past but the read the record over the four majority application Gingles years. defends its sessions and six Indeed, no major- voter turnout. evidence in the as elsewhere. The
ical in Texas fact requiring link between to, successfully supports not record ity does attempts but turn- voting SB and diminished findings contemporary IDs connect these Despite testimony out. from handful of by the state Texas.49The discrimination voters, however, way, plaintiff organiza- one of the of its majority goes out testimony tions case offered not decide” whether assert that it “does had single pre- one of their members been by legacy be satisfied this factor can voting by vented SB The DOJ majori- of official state discrimination. the state Texas again. thoroughly canvassed ty wrong yet Court “disenfranchised” state entities search voters recently reaffirmed legal responsibility “for 14 and none. The State’s witness— should not bear found Ingram, Keith the director of Elections they did not create.” In- disparities racial *84 Communities, 2523; Secretary of Division the Texas State— 135 S.Ct. at of clusive voters Feeney, Mass. stated that the number of who have see Pers. Adm’r v. also of 2295, ID 256, 278, 2282, present qualifying been 442 60 unable (1979) small,” even three (refusing “vanishingly hold state were after L.Ed.2d 870 elections, elections, special mili- six liable discrimination in U.S. statewide for sex n and 717, Bradley, local elections that have tary); v. 418 U.S. numerous Milliken 745, 3127, 3112, place taken the law.50 L.Ed.2d 1069 under S.Ct. (1974) imposed be on other (remedy cannot Gingles factor the “tenu- Regarding having government not been shown bodies law,” underlying the policies ousness of Constitution).
to violate majority approves of district court’s adopts finding empirical analysis
The of SB and finds “a majority also an- disproportionately lower total disconnect between State’s minorities’ partic- “hinders their nounced interests and statute enact- socioeconomic status But v. Lee ipation process.” Optical But while ed.” the electoral Williamson cf. hand, Inc., majority on an ex- Okla. one credits (“The (1955) day pert minority prob- gone voters are L.Ed. 563 is opinion laws, ID ... strike down state ably by requirement the voter when [courts] inhibited ballots, and industrial con- casting majority regulatory forceful- of business hand, ditions, unwise, disclaims, they may be im- ly on the other that Crin- because harmony any provident, partic- or out of gles require- factor 5 embodies actual majority The thought.”).51 of the effect on ular ment for evidence law’s school however, reality, prove. The is majority the district court’s too difficult to The references opinion, Veasey Perry, simply that such effects have been found general socioeconomic data which adverts to by investigated researchers who have employment specifically and recites discrimi- Issacharoff, See, e.g., law. Ballot Bed Samuel past years in the twelve nation cases settled lam, (2015); 1377-86 Mi L.J. Duke entities, by municipal and two two state Fraud, Gilbert, chael D. The Problem Voter (which disparate discipline procedures school 739, 746-50, 749 n.53 L. Rev. Colum. State). can’t attributed to the The court (2015); Pitts, Empirically J. Measur Michael schools, desegregation of references Texas ing Impact Id over Its Photo Time and sum, forty years ago. In which occurred over Women, Impact 48 Ind. 605-07 on L. Rev. majority no evidence current dis- has (2015). by housing, criminatory practices the state in education, employment. Abbey majority’s Joseph St. 51.The citation to Castilla, 225-26 necessity majority of a disclaims 2013), inapt it is a proven allegedly because one-of-a-kind effect because it is turnout it, pays lip Crawford, service to which ruled get it; not otherwise need (2) actual in-person evidence of Indiana voter a disproportionate number of Texans upholding fraud irrelevant a voter- ID living poverty are African-Americans Amendment, law under the Fourteenth but (3) Hispanics; African-Ameri- pivots and concludes that this Gingles ex- Hispanics cans and likely are more than tra-statutory permits judi- factor intrusive Anglos to be living poverty because cial second-guessing legislation. they continue to bear the socioeconomic majority hardly any avers there is effects caused decades racial dis- of in-person evidence voter fraud in Tex- crimination. as—the Senatorial election of “Landslide (citing Veasey v. Perry, 71 F.Supp.3d at Lyndon” Johnson in 1948 seems to have 664). As a finding result of dispari- racial forgotten been proof there is no —and ty among possess those who or have access voter confidence in the integrity of the to SB 14 IDs and using the Gingles fac- ballot is enhanced requiring voters to tors, the majority affirms a Section viola- prove their ID at polls despite — turns, tion. Liability therefore under the opinion- polls showing the overwhelming majority’s approach, essentially three popularity photo ID requirements.52 First, conclusions. a particular regulation Even if the findings district court’s are “disparate has a impact” because it creates value, however, taken at face this conclu- an additional voting upon burden poor, *85 sion proves too much. If requiring photo disproportionately Second, minority voters. basis, voter ID no has rational as the history Texas has a of official discrimina- concludes, majority law, the entire not sim- persist tion whose effects present to the voters, ply application its minority to Third, day. the law in question could have would be indicted. been written more narrowly.53 majority’s The sum of the reasoning, despite emphasis its on “an These conclusions are intensely incredibly open- local appraisal” and its incantation of seven ended. The first can conclusion be met factors, Gingles boils down to propo- here, these though, even as the in question law sitions: disadvantages only a percentage small
(1)
specifically
SB 14
voters and contains
provisions
burdens Texans
ameliorative
living in poverty,
likely
exemptions.
who are less
and
The second conclusion is
ID,
possess qualified photo
basically
are less able
society,
condition of American
ruling
contrary,
the
requiring
and it
plaintiffs
prove
concerns eco-
that SB 14 itself
regulation.
nomic
("resulted in”)
abridgement
caused
the
of vot-
ing rights
apparently accepting the
—while
Moreover,
actually
52.
some studies
show that
majority’s legally upside-down view that the
voter ID laws increase voter turnout. See Gil
prove
efficacy
pre-
state must
the statute's
bert,
supra
accompa
note
at 749 n.56 and
venting
Finally, Judge Higgin-
voter fraud.
nying
(collecting
discussing
text
studies and
disparate impact
son’s
focus would create
rationales).
tension,
least,
say
constitutional
Judge Higginson’s special
forcing
opinion
states to become
em-
race-conscious in
majority’s position
braces and
avoiding disparate impact
embroiders
they
whenever
en-
adopting
Gingles
interpret
factors to
Sec-
voting regulations.
act
This result is not a
Judge Higginson
principally
tion 2.
focuses
benign "evolutionary” process to "harmon-
disparities
on racial socioeconomic
as the
legislative priorities
right
ize”
with the
liability,
touchstone for Section 2
thus over-
vote;
judicial micromanagement
it is
of race-
looking
Supreme
warning
Court’s
voting regulations consigned
neutral
to the
responsible
states cannot be held
to fix dis-
states.
parities they
disparages
did not create. He
have;
ty
registering
at a DMV
majority opinion,
must
voters
although contrary to
law);
conditions
be
socioeconomic
cannot
federal
(required by
current
Motor Voter
any
state-
explained
terms
recent
holding
Tuesday.
on
chal-
elections
Such
The third con-
sponsored discrimination.
lenges
occurring at
time.54
present
are
Court’s
clusion is war with
rationale, however,
majority’s
pub-
the State’s and
acknowledgement of
but
already explained,
flawed not
as
integrity
well as
lic’s interest
in ballot
it does
simply because
not correlate
photo
public’s approval
voter
the Texas
the statute itself. Section
as the Seventh
IDs.
Frank,
F.3d at
recognized,
Circuit
regulation
dis-
Virtually any voter
guidance”
enunciating
is “the
for
salient
minority voters can
proportionately affects
violations.
successfully under the ma-
challenged
locations; days
jority’s
polling
rationale:
Analysis
Proper
B. The
early voting;
allowed and
for
reasons
mail-
simple
The correct answer is
and consis-
ballots;
registra-
limits for voter
time
disparate
poor
tion;
ballots;
Showing
impact
tent.
on
language
absentee
vote-counting
minority
necessary
a coun-
and
voters is
but not
number of
machines
See,
(E.D.
2016)
May
e.g.,
2016 WL
Va.
Ne. Ohio Coal.
Homeless
Husted,
(S.D.
(Section
ID),
challenge
appeal
June
to voter
dock
WL 3166251
Ohio
eted,
2016);
2016)
May
(enjoining
Equal
under Section
No. 16-1605
requires
N.C.
Protection Clause a law that:
full and
State
NAACPv. McCro-
Conference of
-
-,
ry,
completion
of absentee
identi
WL 1650774
accurate
ballot
25, 2016)
counted;
(M.D.N.C.
(Section
envelopes
Apr.
vote is
re
2 chal
fication
before
reductions;
ID;
lenges
early
period
voting
duces
for correction
absentee ballot
to: voter
envelopes
days
days; requires
same-day
registration
to 7
from 10
elimination
voting;
provisional
counting
ballot affirmation forms are
elimination of
ballots cast
accurately;
peri
wrong
pre-registration
completed fully
precinct;
reduces
*86
18),
docketed,
appeal
provisional
age
those
16-
od for correction of
ballot affirma
under
No.
(4th
2016);
days;
days
pro
May
7
tion forms from 10
to
and
Cir.
First Amended
70-74,
poll
assisting
Complaint
Birmingham
completing
at
Greater
Min
hibits
workers
Alabama,
forms;
(N.D.
provisional
ballot
chal
istries
No.
or absentee
v.
2:15-cv-02193
3, 2016),
(Section
part
lenges
May
laws
Ala.
ECF
to other election
of case as
No. 43
docketed,
well),
16-3603,
appeal
challenge
positive
provi
ID and
Nos.
16-3691
to voter
ID
23, 2016);
along
request
2016 and June
sions
with a
to "bail-in” the
June
-
Husted,
Voting
Org.
preclearance
v.
State
Ohio
into
under the
Collaborative
41-44,
(S.D.
Act);
Rights
F.Supp.3d -,
Complaint
WL 3248030
Ohio
Amended
at
State,
2016)
(Section
May
challenges
Sec’y
to: re
Feldman v.
No. 2:16-cv-
Ariz.
of
(D.
19, 2016),
days
Apr.
early-in-person
Ariz.
No.
duction of number of
01065-DLR
ECF
28;
(Section
voting period
challenge
poll
to:
35 to
elimination of
allocation of
from
same-day
early-in-
ing places
registration;
county; prohibition
limitation
within a
on
of
person
per county;
counting
precinct;
location
number of vote
ballots cast out of
and
counting
signed
required
collecting
counties are
and
machines
criminalization
maintain;
collect,
ballots);
ability
pay
Complaint
De
reductions in
sealed absentee
38-40,
for,
Injunctive
claratory
ballots
and
at
mail absentee
on behalf of
Relief
others;
(D.N.D.
required
Jaeger, No.
addition of
Brakebill
1:16-cv-08
information
v.
20, 2016),
(Section
envelopes
provisional
Jan.
No.
2 chal
absentee ballot
bal
ECF
forms;
peri
lenge
reduction in
ID and
of ameliora
lot affirmation
cure
to voter
elimination
prohibition
provisions);
provisional
Complaint
tive
also
at
od on
ballots and
see
Cascos,
(W.D.
provisional
Stringer
completing
election
ballot
No.
officials
5:16-cv-00257
behalf;
14, 2016),
(challenge
Tex.
ECF
affirmation form on voter’s
failure to
Mar.
No. 1
Equal
require county
of elections
under
Protection
and Motor
boards
to consoli
Clause
books);
multi-precinct poll
registration sys
Voter
date
Lee v. Va.
law to Texas's voter
Elections,
-,
tem).
- F.Supp.3d
State Bd. of
sufficient condition to
substantiate
Sec
tions. Finally, as the Supreme Court has
clear,
abridgement
tion
vote denial or
claim. made
may
no citizen
complain of
Abridgement is
than
“the usual
outright
less
denial of
burdens of voting.” Crawford,
198, 128
the vote. It is the
challenged regulation,
here
rather
than
“socioeconomic
Using the
approach
textualist
to Section
“history
conditions” or a
of discrimina
2, a
abridgement
vote
claim should be
tion,” that must
disparate
cause the
im
(absent
analyzed
proof of intentional dis
Moreover,
pact.
2(b),
Section
the “results”
crimination)
First,
as follows:
consider the
2(a)
provision, “tells us that
does
[Section]
total impact of
challenged
regulation
voting practice just
condemn a
because
on the voting public. If
regulation
dis
(If
it
a disparate
has
effect on minorities.
parately
voters,
affects minority
proceed to
things were that simple, there wouldn’t determine whether
particular
burden
Gingles
have been a need for
to list nine
imposed by
regulation,
examined un
non-exclusive
factors
in vote-dilution
totality
circumstances,
der the
deprives
,
cases.).” Frank,
312 challenged voting practice vot- minority citizens’ between or minimize
neuter
is
prohibited
2
result’
cru
is
a
question under Section
ing rights. The
Gonzalez,
analysis.
2
cial” to Section
677
“needlessly” burdens
regulation
whether
(quoting
at 405
Smith
Salt River
F.3d
Justice Scalia’s
Id.
rights.
those
Dist.,
Agric.
Power
109
Project
Imp. &
posed an
v. Roemer
Chisom
dissent
(9th
1997));
586, 589
see
F.3d
Cir.
also
violation,
2
in which a
Section
inarguable
(voter
Frank,
ID
As the Ninth Circuit
“a
[Section]
discounting the
public’s
State’s and the
challenge
purely
showing
‘based
on a
interest
enforcing
14.
SB
The State’s
disparity
some relevant statistical
between
interests
weighty, they
are
are to be treat-
whites,’
minorities and
any
without
evi-
law,
ed as a matter of
not fact as the
dence that
challenged voting qualifica-
does,
majority
they outweigh
in-
tion
disparity,
reject-
causes that
will be
proof
substantial
minority
diminished
(citation
Gonzalez,
ed.”
practice just
disparate
because it has a
Crawford,
In
Supreme
Court held
minorities”).
effect on
majority’s
opin-
that the
legitimate
pre-
State’s
interest in
fundamentally
ion
turns on a statistical
venting voter fraud
“sufficiently strong”
‘
disparity
possession
in ID
among different
justify
a voter ID law
any
even without
races, but
showing
instead of
this
evidence of voter fraud in the record. 553
disparity
majori-
was caused
SB
1623;
U.S. at
128 S.Ct. at
see also
ty relies on socioeconomic and historical
Steen,
Voting Am. v.
732 F.3d
conditions as the causes of
disparity.
2013).
approved,
also
Crawford
This finding
conflicts with the
requiring
independent
without
proof,
Court’s recent
dispa-
instruction that “a
argument
that voter ID
Indiana’s
laws
rate-impact claim that relies on a statisti-
legitimate
serve the State’s
of in-
interest
disparity
cal
fail if
plaintiff
must
can-
creasing
by safeguarding
turnout
point
policy
to a defendant’s
or policies voter confidence in the
process.
election
causing that disparity.” Inclusive Commu-
Crawford, 553 U.S. at
nities,
tion
a full
after
debatable,
the voters’ difficulties
fraud
carefully
propriety
balanced
well be
clear.”).
ID under
Indiana law
major-
voter
obtaining
doing
perfectly
so is
The
interests,
conclud-
against
and
the State’s
ity
require
was
record evidence
wrong
them,
who
voters
need
ed: “For most
in elections
of lack of confidence
without
making a
trip
inconvenience
voter ID.
id. at
Supreme Court
C.
Considerations
Constitutional
confidence,
requirements promote
majority
claims to exercise “consti-
cannot
‘fact’
single
judge
say as a
district
by electing
tutional
not to rule
avoidance”
not,
political
if 20
they
do
even
scien-
Court.”).
plaintiffs’
on the
that SB 14
assertion
bur-
disagree
tists
right
contrary
dened
to vote
to the
their
majority wrongly second-guesses
But the majority
Fourteenth Amendment.
subjects
preventing
interest in
the State’s
keeping
qualms
has no
about
alive the
in-person
fraud to
factual
routine
claim that
Crawford,
preposterous
and divisive
see
examination. But
(“While
passed
the most was
with unconstitutional discrimi-
315
natory
majority’s
intent.57 And the
explained,
extra- Court
“[t]his allocation of au-
interpretation
textual
of
2
Section
runs a
thority sprang from the Framers’ aversion
risk of unconstitutionality.
severe
So much to
power,” because,
concentrated
as James
judicial
restraint.
observed,
Madison presciently
“[a] Con-
gress empowered
regulate
to
qualifica-
here,
applied
As
majority’s two-part
tions of its own electorate ...
‘by
could
2
judicial
Section
test authorizes
mischief
”
degrees subvert
the Constitution.’
Id.
in micromanaging
facially
neutral state
(quoting Records of the Federal Conven-
law
implementing
Supreme Court-ap-
1787,
(M.
tion of
p. 250
Farrand rev.
proved purpose in order to eliminate dis-
1966)). It is thus “obvious that the whole
(in
IDs)
parate impact
types
qualified
Constitution reserves to the States by
not caused
the law itself. This result
power to set
qualifications
in state
with the
assign-
interferes
Constitution’s
”
and local
Oregon
elections....
v. Mitch-
ment of the conduct of elections to the
ell,
112, 125,
260, 265,
U.S.
91 S.Ct.
congruent
States and is not
propor-
(1970) (Black,
L.Ed.2d 272
J. for a five
tional as a remedy for violation of voting
majority
member
on
point);
see also
rights protected by the Fourteenth and
Lassiter v. Northampton Cty. Bd. Elec-
Fifteenth Amendments.
tions,
985,
989,
U.S.
79 S.Ct.
The Constitution’s “Elections Clause
(1959) (“The
L.Ed.2d 1072
States have
empowers Congress
regulate
how feder
long been held
powers
to have broad
held,
al elections are
but not who
vote
determine the conditions under which the
in them.” Arizona v. Inter Tribal Council
right
exercised....”).
suffrage may
—
Ariz., Inc.,
-,
U.S.
133 S.Ct.
The
2247, 2257, 186
primacy
States’
(2013)
regulating elec-
(empha
L.Ed.2d 239
limited, however,
tions is
original);
I,
4,
sis
see
Four-
§
U.S.
art.
CONST,
Amendments,
teenth and
cl. 1.
Fifteenth
“Prescribing
which
voting qualifications,
therefore,
protect
rights.
different
The
part
‘forms no
Fifteenth
power
Amendment
right
be conferred
secures the
upon the national
vote from
govern
denial or
Clause,
abridgment by
ment’
the Elections
intentional dis-
which is
‘expressly
crimination on
restricted to the
account of race or
regulation of
color.
times,
Bolden,
places,
City
55,
and the
Mobile
manner of
61-
” Arizona,
1490, 1496-98,
elections.’
100 S.Ct.
out reasons, For these we dissent. one thousands
not even document SMITH, Judge, Circuit JERRY E. betrayed such internal communications joined by EDITH H. and EDITH JONES a dis- Equally perversely, such purposes. CLEMENT, Judges, Circuit BROWN by leg- can be bolstered crimination claim dissenting: forty sixty years islative actions a Democrat-con-
ago, when Texas respectfully We dissent for the reasons state, repu- legacy has been trolled whose JONES, Judges ably explained by CLEM- Republican dominance. diated current ENT, and ELROD. (Not matters, but party designation gravely The en banc court is fractured pro- can be any legislature’s actions is no and without consensus. There ma- *93 the actions when bative of decades-later jority opinion, opinion but a plurality opposing the legislature is controlled separate dissenting opinions that draws six bizarre.) Similarly, a Section party is special concurrence.1 marginal racially dis- can rest on a claim Despite questions, deep key divisions on in- sadly from parate impact estimated however, the en banc court is unanimous in cou- disparities
transigent socioeconomic roundly the repudiating district court for “long-ago history” of with a state’s pled signifi- error legal on some issues. Most rights is Voting litigation discrimination. cantly, judge the attempted district any “results” caused decoupled thus entirely the ID wipe Texas voter law off state. the remedy majority the books—a the rightly potentially observes “is broader majority believes that fed- No doubt the than the one to which Plaintiffs would be the judges regulate suited to eral are well ” 77.) (Page .... entitled The en banc judge- process. many As with electoral require- the court instead leaves however, “solutions,” today’s results made reversing, intact. essentially ment In all spawn decisions will will backfire. Judicial that, judges agree fifteen in words the uncertainty, lead- results and inconsistent “the plurality opinion, majority the vast judges’ impar- ing public question ID, eligible possess voters SB 14 and we cyni- will foster tiality. This decision thus 14’s do not disturb SB effect on those and more rather cism about the courts have 14 ID voters —those who SB must at ev- tension. Lawmakers than less racial 82.) (Page global it to That show vote.” is forced race-con- ery level will be to be change from what the district court ruled. scious, race-neutral, in protecting not sanctity integrity The en banc court is of the ballot likewise unanimous Finally, judge’s unautho- in the district political processes. reversing these bizarre (Part extra-legislative 14 is a tax. poll rized and transfers declaration IV.) working judiciary That is a frivolous claim that power to disable never light day. its which for all should have seen the Her process, of the democratic began apt games early well- 1. This case candidate for the 1900s. "He also saying, players phrase with "You can’t tell the with- sell scorecards to fans worn [‘]Yom Harry players credited can't tell the without a scorecard.['Y' out scorecard.” Stevens is https://en. Stevens, coming Harry M. up with these words. Sometimes Wikipedia, wikipedia.org/wiki/Harry_M._Stevens (last thought dog, he to be the inventor the hot 5, 2016). Major League July sold refreshments at Baseball modified judge’s holding apparent opin- reveals this abridges SB denies or the right to 64.) legislators (Page ion Texas and state offi- vote.” hayseed bigots cials are determined to re- sum, In majority vast judges minority turn voters the back of the on the en banc court have declared the bus. judge district to have substantially erred in myriad legal The clips unanimous court likewise conclusions and use of evidence, judge’s wings by vacating district her and the court gra- is unanimous in holding tuitous several of those violation of the rule of reversals. The district —in constitutional court is avoidance—-that SB 14 bur- well-advised to avoid such regret- table right dens the to vote violation of the misadventure on remand. (Part First and Fourteenth Amendments. DENNIS, JAMES L. Circuit Judge, III.) plurality opinion properly dis- concurring part, dissenting part, claims, criticizing
misses those the district concurring in judgment: ignoring court for the “well established principle governing prudent exercise of I concur in part all but II.A.1 of the ... jurisdiction that [federal will courts] majority’s I opinion. respectfully dissent question decide constitutional if there from the majority’s reversal of the district 71.) ground is some other ....” (Page finding court’s that SB 14 was enacted racially with a discriminatory purpose be- plurality opinion, although charita- cause, view, my we are bound to affirm bly allowing judge the district a second *94 finding. factual The majority opinion evidence, existing chance to review also erroneously assigns legal errors to the dis- roundly repeatedly and her for scolds mis- and, trict court in disturbing the district handling making that evidence and errone- finding discriminatory court’s of purpose, findings ous therefrom. For example, the fails to proper adhere to the standard of plurality aptly declares that “some [of the] review engages in improper reweigh- 10.) findings (Page are infirm.” Some ing of the evidence. “findings are infirm because of an errone- 10.) ous view of the (Page law.” hold “[W]e The district court’s determination that that much of the upon evidence which the 14 SB was enacted with a racially discrimi- 13.)
district court relied
(Page
natory
was infirm.”
purpose or intent
is a finding of
“Because the district court
upon
Rogers
613,
relied
evi-
fact.
Lodge,
v.
458 U.S.
infirm,
623,
3272,
dence we conclude is
the district
102 S.Ct.
unless
measures,
voting
citing
that a mistake
discriminatory
firm conviction
‘definite and
—
Holder,
U.S.-,
accept
the Shelby Cty.,
has
must
Ala. v.
been committed/
(2013)
Id.
102
findings.”
trial court’s
S.Ct.
L.Ed.2d
133 S.Ct.
186
651
v.
States
United
(quoting
McCleskey
Kemp,
United
U.S.
364, 395,
(1987).
U.S.
68 S.Ct.
Gypsum,
Maj. Op.
States
In McClesky,
petitioner argued
legislature’s
whether
current
intent
Georgia’s modern death sentencing pro-
discriminatory.
“history
While
did not
cess was unconstitutional. 481
at
1965,”
end in
Shelby Cty., 133 S.Ct. at
Determining
323 implies enough more than intent tory purpose’ impugn ... evidence to the inten- as volition or intent as awareness of conse the in Legislature tions of entire passing decisionmaker, quences. It that the implies SB 14. n Second, legislature,
in
this case a state
selected
plurality
the
fails
address the
particular
reaffirmed a
course of action
“specific sequence of
leading up
events
[to]
of,’
merely
‘in
part
least
‘because
not
decision,”
challenged
the
Arlington
of,’
spite
upon
its
effects
an identi
adverse
Heights, 429 U.S. at
but
group.”
fiable
Pers. Adm’r Mass.
of
analysis
of this
makes
factor
clear that
256, 279,
442
Feeney,
99
U.S.
S.Ct.
the
court
In Arlington
district
erred.
(1979) (citation
60 L.Ed.2d
and foot
870
Heights,
explained
the
Court
that
omitted);
note
see also Hunter v. Under
whether,
courts should look to
for example,
wood, 471
85
legislative
decision
precipitated by
was
(1985) (explaining
L.Ed.2d 222
racial
change in
sudden
circumstances. See id. at
“
must be a
discrimination
‘substantial’ or
n.16,
(collecting
&
S.Ct. 555
cases
of
‘motivating’ factor behind enactment
the
and providing example
change
of sudden
law”).
zoning
learning
plans
laws after
of
to erect
First,
court disproportion
the district
Here,
integrated housing).
the district
ately
long-ago
relied on
historical back
court relied on
evidence that SB
be-
ground
unrelated
14 to
evidence
to SB
“increasingly
came
harsh” in each succes-
by
discriminatory purpose
discern a
the
Veasey,
F.Supp.3d
sive draft.
at 700.
Legislature.
Veasey
Perry,
type
That is not the
specific-sequence
of
(S.D.
627, 632-39,
Tex.
evidence, however,
by
envisioned
the
2014).
pernicious
of
meas
most
the
Arlington
Court
Heights. The events
by
ures cited
district court
the
predate
up to the
leading
enactment of SB 14
Voting
of
passage
Rights
Act in 1965.
demonstrate
lawmakers were con-
fact,
history
In
despite
bygone
some
of
integrity
cerned about
protecting
of
discrimination,
voting prac
official
Texas’s
elections,
by
surveys
concern backed
by
tices had so
improved
1965 that was
of all
showing
Texas voters
races
original
not included in the
preclearance
agreed
goal
supported
with this
re-
requirements
Voting
Act.
Rights
As
quiring
IDs to
There is no
photo
vote.
admit,
plurality
must
district
circumstances;
changed
evidence
sudden
heavy
court’s
reliance on such outdated
fact,
the district court noted that
historical evidence was error.
at 230-
Op.
six-year
over a lengthy
peri-
debated
32;
McCleskey
see
v. Kemp, 481 U.S.
od. Id.
n.20,
had
defeated voter
bills
Fifth, the district court identified no re-
words,
political
the
past
In
sessions.
other
legislative history or contemporary
liable
opponents precip-
of SB 14’s
effectiveness
discriminatory pur-
statements
reveal
Legislature’s procedural depar-
itated the
legislative
pose. “The
or administrative
tures.
relevant,
history may
highly
especially
be
are contemporary
where there
statements
the Legis-
much of
plurality
makes
by
body,
decisionmaking
members
the
14 in the
lature’s
of SB
midst of
passage
Ar-
meetings,
reports.”
minutes of its
or
great
impor-
matters of
“pressing
other
lington Heights, 429
at
U.S.
97 S.Ct.
so,
In
Op.
at 239.
doing
tance
Texas.”
extraordinary
555. “In some
instances the
plurality only feigns
the
deference to the
might
testify
...
members
be called
by claiming
legislative process
the
concerning
purpose
of the
ac-
official
Legislature
entitled to set whatever
“is
tion
As
....” Id.
has
Court
at
priorities it wishes.” Id.
238. We are not
however,
long recognized,
“[placing
de-
policy prefer-
our
supplement
entitled to
‘usually
cisionmaker on
stand is ...
Legislature,
ences
that of the
”
“judicial
be
inquiries
avoided’ because
“one
speculation
might
such as what
ex-
into
or
legislative
rep-
executive motivation
do,
pect”
legislature to
id
not evi-
resent a substantial
intrusion into the
It
discriminatory purpose.
dence of
would
workings
govern-
of other branches of
court
improper
district
to infer
n.18,
at
ment.” Id.
extensive
ELROD,
JENNIFER WALKER
materials,
brought forth no
plaintiffs have
SMITH,
Judge, joined by
Circuit
Circuit
discriminatory
intent.
direct evidence
concurring in
Judge,
part
dissenting
remains,
accounting
after
What evidence
part:
errors,
not
court’s
does
the district
14
enacted
conclude
SB was
suffice to
“
Judge
I dissent
all but Part IV of
”of,’
of,’
merely
spite
not
‘in
‘because
Haynes’s opinion.1
agree
Judge
I
Feeney,
impact on minorities.
disparate
that,
opinion
despite wide-reach-
Jones’s
279,
442
A robust
ensures
responsibility.”),
else bears
cert. de
not,
that racial imbalance does
without
—nied,
-,
1551,
U.S.
135 S.Ct.
more,
prima
establish a
facie case of
(2015).
L.Ed.2d 638
disparate impact
protects
and thus
de-
Moreover,
§
Plaintiffs’ 2 claim fails even
being
fendants from
held liable for racial
if
Gingles
we consider the
disparities they did not create.
factors. SB
has
many
been tested
times and there is
Dep’t
Cmty.
Texas
Hous. &
v.
of
Affairs
—
no
any
evidence
this record that
Inc.,
Cmtys. Project,
Inclusive
U.S.
has been
right
denied the
to vote on the
-,
2507, 2523, 192
135 S.Ct.
L.Ed.2d 514
(2015)
(internal
alterations,
basis of his or her
quotation
race because of its voter
omitted).
marks,
agree
and citation
I
ID requirements.5
with
Plaintiffs’ claim rests
Judge
opinion
dependent
Costa's
blurs the line be-
on
socioeconomic factors
his-
voting practices),
tween
intent and
toric
discriminato-
vacated as moot
1,
(6th
2014),
ry
legislature
effect. Even when a
justified by
rejecting
current needs” and
identifying
all
carefully
partici-
voters
“decades-old data
eradicat-
reliance on
and
pating
process.”).
in the election
practices”).
ed
Nor does
existence of
Simply
Plaintiffs have
put,
not shown
disparities
societal economic
render SB
turnout,
any
that SB 14 had
effect on voter
Frank, 768
at 753
unlawful. See
F.3d
any
possession among
in ID
disparity
(“Section 2(a)
by
forbids discrimination
by
groups
racial
was caused
SB
or that
‘race
not require
or color’ but does
states
single
from
prevented
voting
Texan is
effects of private
overcome societal
dis-
I
Accordingly,
SB
would vacate the
that affect
crimination
income or
voters.”).
judg-
opinion
district court’s
render
potential
wealth of
ment for the State.
contrary approach
by Judge
The
taken
Haynes’s opinion improperly
permit
would
COSTA,
Judge,
GREGG
Circuit
virtually all
challenges
aspects
11(A)(1):
Part
dissenting from
voting process simply
poverty
because
years
The six
the Texas
everyday
adds
the burdens of
debate
activities
passed
Legislature
distribution is
across
before voter
dera-
unequal
wealth
Texas,
search,
entire
Plaintiffs
three in-
tion ID card. Out of the
state of
statewide
identified
anyone
produced
who could not vote at
time
have not
who can-
dividuals
one
Plaintiffs
they
qualifying
today
require-
lacked
ID. None is
not vote
because of
14's
because
voting.
prove discriminatory
prevented
now
three
ments.
burden to
Two of the
eligible
effect
Plaintiffs. Without a denial or
individuals are
to vote mail and the
lies with
abridgement,
§ 2
subsequently
third
elec-
no
claim can stand.
has
obtained a free
(1977).
political
onstrates that
controversial
may not reverse
even
fact,
heavily
trier of
court
on
sitting
it been
as the
the district
relied “too
that had
weighed
State-sponsored
the evidence differ
discrimination
have
evidence
would
years”
v.
and “on
ently.”
dating
Bank Nat. Ass’n Verizon
back hundreds
U.S.
(5th
Commc’ns, Inc.,
speculation by opponents
Cir. post-enactment
761 F.3d
2014)
Maj.
232. As
(affirming
Op.
court’s valuation
14.”
district
case)
below, however,
(quot
virtually none of
finding in fraudulent transfer
discussed
cri-
City
City,
majority opinion
ing Anderson v.
Bessemer
this evidence
564, 573-74,
analy-
tiques appears
the district court’s
U.S.
(1985)).
claim.
discriminatory purpose
sis of the
L.Ed.2d
v.
Veasey
Perry,
public
recent
law
But it is easier
find
(S.D.
2014).
Tex.
698-703
upheld
we
factual
in which
have not
cases
standard
findings, despite the deferential
I
history,
respect
With
the use of
Shaw,
Project v.
See Aransas
of review.8
opinion
read not
district court’s
(5th
2014) (Prado,
324, 326
Cir.
774 F.3d
differently.
legal
case
As
but also the
law
J.,
rehearing
en
dissenting
denial of
the view
the district court
support for
banc)
Parenthood
(citing Planned
weight
“long-ago
too much
histo
gave
Ab
Surgical Health Servs. v.
Tex.
Greater
majority opinion
principally
ry,” the
relies
2014)
(5th
bott,
F.3d
Cir.
—
Holder,
County
Shelby
v.
(Dennis, J.,
from denial of re
dissenting
-,
L.Ed.2d 651
banc)).
adds to the
hearing en
This case
(2013). Maj. Op
Shelby
n.14.
231 &
“[l]eg
despite the rule that
list. That is so
County
Congress
held that
exceeded its
a paradig
motivation or intent is
islative
under the Fifteenth Amendment
power
Foster,
question.”9 Prejean
fact
matic
subjecting nine
to the “extraordi
states
2000)
(citing
Cir.
preclear
ev
nary
having
measure[ ]’’
Cromartie,
Hunt
change in
Id. at 2619. It
ery
voting laws.
(1999)).
1545, 143
L.Ed.2d 731
*104
Congress’s
selecting
found
formula
why
majori-
unconstitutional
it re
what are the reasons
these states
because
So
despite
significant evi-
on “decades-old data and eradicated
ty opinion,
noting
lied
literacy
finding
practices,”
particular
could
a
of dis-
the use
support
dence “that
intent,”
had
criminatory
Maj. Op.
long
at
does
tests which
been abolished
sig-
judge
being
by single
a
decided
as most
8. Because these
often have such
now
a
cases
(the
are,
impact
a
case involves
altering
nificant
instant
there is no basis for
others
setting voting requirements
state
law
subject
deference
matter
level of
based on the
people),
than 25
be natu-
more
million
of the case.
single
giving
about
district
ral to be hesitant
deciding
judge
the fate
so much discretion in
suits,
private
VII
In the context
Title
Indeed, it
to be the case that
a law.
used
discriminatory
disputed issue
intent was the
challenging
constitutionality of a
lawsuits
leading Supreme
Court cases
in two
law
three-
or federal
had to be heard
state
emphasizing the deference that district courts
(re-
§§
judge panels. 28
U.S.C.
Anderson,
questions
are owed on
of fact.
worse,
1976).
Congress
pealed
For better or
574-75,
(intent
U.S. at
Shelby County
not a
was
case about
purposeful discrimination under the Four
type
That
of pattern-or-practice
evi-
teenth Amendment or Section 2 of the
dence exists here. As
majority opinion
Voting Rights Act. It makes no mention of
recognizes, most of the discriminatory
Arlington Heights. For
those reasons
laws the district court
recounted —all-
alone, Shelby County should not be used to white
primaries;
tests;
Democratic
literacy
curtail
Arlington
taxes;
the use of an
Heights
poll
and the annual re-registration
Rodriguez
Quijas
factor. See
de
requirement
v. Shear-
imposed
Texas
after the
Inc.,
Express,
Am.
tax
poll
justified
son/
abolished —were
(1989) (“If
key (dis- (1987) practices. put To the current events into 95 L.Ed.2d Heights, Arlington through under histori- counting, going Texas was perspective, only “Georgia on laws focused demographic cal evidence at the seismic shift time just after the Civil during and force considering began the voter legislature reasonably it not con- was War” because ID African-Ameri- Hispanics laws. and of the chal- with enactment temporaneous cans for 78.7% of Texas’s total accounted law). see just But I don’t that the lenged population growth between discriminatory finding of court’s district addition, during this 2010. In time all, history at let purpose relied such majority-mi- that first became a Texas significant degree. alone to a state, longer nority Anglos with no com- majority popula- prising a the state’s majority contrary opinion’s view discussed, tion. this Court previously As scrutiny flow its seems to findings gives great weight the Dr. any ref- opinion district court entire ‘[t]he Lichtman that combination of pro- not to evidence that be erences demographic polarized these trends discriminatory intent. But the bative ... voting patterns it not demonstrate that just court the district had before inevitably involving Republicans claims in Texas are fac- question, but purpose effects, discriminatory impact ing declining gain on First voter and can base interests under the partisan advantage by suppressing Amendment the balancing test, overwhelmingly votes of Af- Democratic Anderson/Burdick imposed poll tax. whether rican-Americans and Latinos.’ customary rulings, trial As is with bench (alterations origi- at 700 court first summarized the the district omitted). nal) (footnotes natural read- testimony from the trial. and facts entire that ing single paragraph this is discussion, Only after that which was sentence back- general providing first is record, given pro- did it lengthy the vast only demographic it is ground, and analyze particular ceed to claims changes citing the court identify supported its evidence Arlington Heights context for “the current In reviewing for each. legal conclusions majority opinion only events.” The sufficiency finding the factual conclusion, finds with latter no error our purpose, review should Maj. Op. at but endorses its relevance. analysis court’s focus on district 239-41.- claim. particular looking at that section of the dis- One reads at Even if one the footnote reading today’s trict court’s decision after fully incorpo- end of first sentence as opinions history with their focus on would opinion rating opening section of the surprised that this is mention history chronicles “Texas’s re- of it: disparity voting rights,”11 spect to racial 633-39), (citing I id. 700 n.535 id. Background. amply As dem-
Historical *106 onstrated, as er- Legislature the Texas has a don’t see that historical overview opinion para- testimony the involve the opening Because the sentence the in dis- just Legislature's graph refers to the Texas voting single criminatory county acts of a voting history laws, enacting discriminatory (Waller County), majority item the another reading plausible there is no that would opinion criticizes. incorporate prior allow it to summaries of long ago, ror.12 Not the Supreme so Court provide dence or reasons for their deci- history voting rights recited the same in sions.
Texas: improper This focus on the district court’s summary of the evidence rather Texas a long, has well-documented histo- than analysis its later of the discriminatory ry of discrimination that has touched purpose claim just pronounced is when upon rights the of African-Americans it comes to the statements of oppo- bill vote, Hispanics register, or to nents with which majority opinion also participate in otherwise the electoral Maj. finds fault. Op. at 232-33. Those com- process. tax, poll Devices such as the appear ments in nowhere one-para- primary system, all-white and restrictive graph discussion of “Contemporaneous registration periods time are an Statements,” F.Supp.3d any- or part unfortunate of this minority State’s where else the discriminatory purpose voting rights history. history The of offi- analysis. Instead, they appear in a section cial discrimination in the Texas election (from sides) recounting testimony both process stretching back to Reconstruc- — about the “Method and Result of Passing tion—led to the inclusion of the State as SB 14.” Id. at 655-57. The discussion of jurisdiction a covered under Section 5 “Contemporaneous Statements” that does the 1975 amendments to Voting appear in purpose analysis balanced, Rights Act. Since Texas became a cov- noting that “there are no ‘smoking guns’ in jurisdiction, ered Department the form of sponsor an SB 14 making an Justice frequently interposed objec- has anti-African-American anti-Hispanic against tions the State and its subdivi- statement.” Id. at 702. only legislator sions. quoted opponent, is not an sup- but bill 399, 439-40,126 porter Todd Smith Perry, LULAC who admitted it was (2006) “common sense” that voter ID 165 L.Ed.2d would have (quot disproportionate effects on Richards, racial minori- ing Vera v. F.Supp. (S.D. majority ties. Id. The 1994)). opinion cites that Tex. Deeming a similar testimony as pur- relevant evidence for the discussion here to legal error risks pose Maj. claim. at 236. That Op. leaves making rhetoric a basis for reversal. The only the district court’s conclusion that the natural starting point any historical dis legislative 2011 , racially session was beginning. Maj. cussion is the Op. at 232 charged light of pending legisla- other (even n.14 (recognizing “history ‘long- tion, id. at which seems like an infer- ago history’) provides context to modern- ence a factfinder should be entitled to events”). day bigger problem And the draw. locating error sections of the district opinion
court’s analyze that do not even not, But if even with that factual finding claim at issue is that it results being specifically one mentioned finding judges fact being much more in the district court’s discussion of discrim- susceptible to than juries, reversal those of inatory purpose with which majority which fault, do not have to opinion summarize the evi- finds it does not seem like a only parts that, 12. of that poll literacy owing section that refer to tax and tests "dating years” events back duty accuracy, hundreds of are a of historical list the entire benign introductory ("1905-1970: they statement that "On the period were in existence Reconstruction, Restrictions”; heels of Literacy freed slaves and oth- and ‘Secret Ballot’ minority just Taxes”). gaining er men were access to "1902-1966: Poll vote,” right headings topics like *107 purpose. “a and I would therefore that reaching for definite conclude sufficient basis a has firm that mistake been was sufficient evidence from which conviction there finding. the ultimate Ca reasonably committed” as to the court have district could Inc., 220 at 375. That is Barge nal F.3d Co. that the law was with a concluded enacted majority especially opinion if, so when the discriminatory even is usu- purpose, as on endorses the district court’s reliance trials, ally hotly case in contested there the actually it just about all the other evidence support opposite is evidence also the assessing Arlington Heights did cite in the view. Op. In Maj. light factors. at 235-41. See discriminatory the Vacating finding of opin that district court discussion purpose not is at odds with the defer- ion, repeating no value in there is factfinder, ence owed the but also causes only thing is evidence here. add delay in the ultimate resolution of this case correctly recognized
that the
court
district
impose significant
that could
costs. Voter
discriminatory
impact
that the
the law
ago.
ID
passed
years
Litigation
five
(for
majority opinion
which the
finds suffi
concerning
ongoing
its lawfulness has been
support
evidentiary
cient
on the “effects”
years.13
for more than four
more
Even
Judge
claim
even
dis
and which
Jones’s
however,
concerning
delay,
than
is
mere
at
dispute,
sent does not
see Jones Dissent
being
of Texas
possibility
elections
5)
evaluating
can
considered in
also be
ever-changing
conducted under
rules.
discriminatory purpose.
Arlington
enactment,
14’s
have
Since SB
elections
Heights, 429 U.S.
S.Ct. 555
up-
its
been conducted under
terms. The
(noting that
impact
“[t]he
official
likely
November
is now
to be
coming
heavily
action whether
‘bears more
remedy
conducted under a
effects
another,’
provide
one race than
im-
discriminatory
violation
limits the
important starting point” in the “sensitive
pact
the law but that leaves
it in
some of
inquiry into
[] circumstantial
direct
intent”)
place.
Depending on how
discriminato-
(quoting Washington
evidence of
ry
remand,
Davis,
purpose claim is decided on
v.
next
be
(1976));
cycle
might
elections
conducted
* * *
acted on the ba
racism”);
sis of
Maj. Op.
see also
at 230-31
legislature
Reluctance to hold that a
(also indicating that such
finding
a
re
a
a
passed
discriminatory purpose
law with
“racism”).
quires a showing of
Judge
As
(“We
Maj.
is
Op.
understandable.
231
ac-
explained
Kozinski
in a
upholding
decision
knowledge
charged
nature of accusa-
a district court determination
racism,
that a dis
particularly
tions of
a
against
legis-
”).
criminatory purpose
body
lative
....
Yet
motivated a
courts are called
Los An
upon
geles county
all the time to decide difficult ques-
reapportionment plan, noth
tions
legislatures
about whether state
or
ing in an opinion finding discriminatory
Congress have violated
important
other
purpose needs
“suggest[j”
to even
that
like,
constitutional
taking
values
the First
any
lawmakers “harbored
ethnic or racial
just
example,
right
Amendment as
one
animus.”
Cnty.
Garza v.
Los Angeles,
speech
religion.
to free
or free exercise of
(9th
763,
1990)
918
(Kozinski,
F.2d
778
Cir.
so,
they
When we find that
have done
it
J., concurring) (explaining that “there is no
exactly
doesn’t
east those lawmakers in the
indication that what
the district court
light.
best of
found to be intentional discrimination was
dislike,
important
any
mistrust,
It is also
to
based on
note that affirm
or
hatred
ing
finding
discriminatory
bigotry against
purpose14
Hispanics
any
other mi
would not be the inflammatory
nority
“racial
group”).15
discriminatory
pur
again emphasizing
requirements
It’s also worth
that un-
preclearance
was for the
findings
like the
of constitutional violations
public entity enacting
change
disprove
to
usually
present
we
purely
make in cases that
voting change
that the
discriminatory
had a
legal questions, affirming the district court
purpose or effects.
v.
Reno
Bossier Parish
ruling
here would not
abe
direct
from this
Bd.,
471, 477-78,
School
520 U.S.
117 S.Ct.
passed
court
the law was
with a discrimi-
(1997) (citing
pose
can instead
(“No
single-minded
in the
at 246
purpose. Jones Dissent
doubt
engaging]
officials
Id.)
incumbency.”
Ketchum v.
pressed
have
pursuit
Republicans
of
not
for
would
(7th
1984)
1398, 1408
Cir.
Byrne,
F.2d
740
ID
en-
they
largely
if
felt would
“many devices
employed
(observing
(“The
that'
voting.”); id. at
hance Democrat
303
necessarily
are
ra
preserve incumbencies
not
party politics,
law
racism
reflects
discriminatory”). That
cially
most basic
”).
partisan advantage
...
If
for
that desire
self-preservation—can
human
(or
motivation)
any
underlying
instincts —
leads
other
enacting
for
explanation
an
provide
thus
“course of
at
legislature
to select a
action
because it will have
part
law least in
of,’
not
‘in
part
merely
least
‘because
protected groups
on
disparate impact
of,’
upon spite
its adverse effects
identi-
out-of-power party.
71
favor the
Garza,
enough.
group,”17
fiable
that is
Walker,
F.3d
700;
Frank v.
773
see also
(Kozinski, J., concurring).
racial lines exit election, 72% of gubernatorial last
whites, Latinos, percent 44% and 7% of Republi
African-Americans voted winner16) depressing minority
can makes strong proxy suppressing
turnout a
Democratic turnout.
A judge agrees Judge who Jones’s race,” is a “partisanship,
dissent that
likely why Legislature reason the Texas 14 can thus still
'enacted SB
conclude
660,
Dist.,
(9th
(1982);
by Campbell
Sch.
733 F.2d
Cir.
N.A.A.C.P.
v. Gadsden
fied
Bd„
978,
1984)
Clarkton,
(11th
(school);
Cir.
v. Town
Cnty. Sch.
691 F.2d
Smith
Ark.,
N.C.,
Helena,
1055,
(4th
1982)
1982);
City
1066-67
Cir.
Perkins
F.2d
of W.
(8th
1982),.aff'd
(housing);
Agency,
Ed.
F.2d
Cir.
sub nom.
United States v. Texas
Helena,
Perkins,
1979)
(school);
City W.
Ark. v.
U.S.
600 F.2d
(1982) (all
Rizzo,
Advisory
L.Ed.2d 47
Resident
Bd. v.
564 F.2d
system
(3d
1977)
finding
at-large electoral
cre
(housing).
Cir.
144-45
discriminatory pur
ated
maintained for
(Abbott
Davis)
pose).
vs.
16. Governor: Texas
—Exit
(2014),
Polls
CNN: 2014
Election
Center,
voting
context
effects
Outside
where
http://www.cnn.com/election/2014/results/
claim,
challengers’ preferred
there
became
state/TX/governor/.
examples
finding
are
of courts
discrimi
more
mostly
natory purpose,
in the area of school
See,
Feeney,
housing.
e.g.,
17. Pers. Adm'r Massachusetts
desegregation and
United
Yonkers,