Lead Opinion
joined by STEWART, Chief Judge, and DAVIS, PRADO, SOUTHWICK, GRAVES, and HIGGINSON, Circuit Judges, in full; DENNIS and COSTA, Circuit Judges, joining in all but Part II.A.1 and
In 2011, Texas (“the State”) passed Senate Bill 14 (“SB 14”), which requires individuals to present one of several forms of photo identification in order to vote. See Act of May 16, 2011, 82d Leg., R.S., ch. 123, 2011 Tex. Gen. Laws 619. Plaintiffs filed suit challenging the constitutionality and legality of the law. The district court held that SB 14 was enacted with a racially discriminatory purpose, has a racially discriminatory effect, is a poll tax, and unconstitutionally burdens the right to vote. See Veasey v. Perry,
I. Background
A. Senate Bill 14
Prior to the implementation of SB 14, a Texas voter could cast a ballot in person by presenting a registration certificate — a document mailed to voters upon registration. Tex. Elec. Code §§ 13.142, 63.001(b) (West 2010). Voters appearing without the certificate could cast a ballot by signing an affidavit and presenting one of multiple forms of identification (“ID”), including a current or expired driver’s license, a photo ID (including employee or student IDs), a utility bill, a bank statement, a paycheck, a government document showing the voter’s name and address, or mail addressed to the voter from a government agency. Id. §§ 63.001, 63.0101 (West 2010).
With the implementation of SB 14, Texas began requiring voters to present certain specific forms of identification at the polls. These include: (1) a Texas driver’s license or personal identification card issued by the Department of Public Safety (“DPS”) that has not been expired for more than 60 days; (2) a U.S. military identification card with a photograph that has not been expired for more than 60 days; (3) a U.S. citizenship certificate with a photo; (4) a U.S. passport that has not been expired for more than 60 days; (5) a license to carry a concealed handgun issued by DPS that has not been expired for more than 60 days; or (6) an Election Identification Certificate (“EIC”) issued by DPS that has not been expired for more than 60 days.
SB 14 states that DPS “may not collect a fee for an [EIC] or a duplicate [EIC],”
Before May 27, 2015, a statutory provision distinct from SB 14 imposed a $2 or $3 fee for a certified copy of a birth certificate.
Persons who have a disability are exempt from SB 14’s photo ID requirement if they are able to provide the voter registrar with documentation of their disability from the U.S. Social Security Administration or Department of Veterans Affairs. Tex. Elec. Code § 13.002(f) (West Supp. 2014). Other persons may vote by provisional ballot without a photo ID if they file affidavits either asserting a religious objection to being photographed or asserting that their SB 14 ID was lost or destroyed as a result of a natural disaster occurring within 45 days of easting a ballot. Id. § 65.054. Additionally, voters who will be 65 or older as of the date of the election may vote early by mail. Id. § 82.003.
If a voter is unable to provide SB 14 ID at the poll, the voter can cast a provisional ballot after executing an affidavit stating that the voter is registered and eligible to vote. Id. § 63.001(a), (g). The vote counts if the voter produces SB 14 ID to the county registrar within six days of the election. Id. § 65.0541.
SB 14 requires county registrars to inform applicants of the new voter ID requirements when issuing voter registration certificates, id. § 15.005, and requires both the Secretary of State and voter registrar
B. Procedural History
The State began enforcing SB 14 on June 25, 2013.
The district court conducted a nine-day bench trial at which dozens of expert and lay witnesses testified by deposition or in person. Following that bench trial, the district court issued a lengthy and comprehensive opinion holding:
SB 14 creates an unconstitutional burden on the right to vote [under the First and Fourteenth Amendments], has an impermissible discriminatory effect against Hispanics and African-Americans [under Section 2 of the Voting Rights Act], and was imposed with an unconstitutional discriminatory purpose[in violation of the Fourteenth and Fifteenth Amendments and Section 2], [Furthermore,] SB 14 constitutes an unconstitutional poll tax [under the Fourteenth and Twenty-Fourth Amendments].
Veasey v. Perry,
In October 2014, the State appealed the district court’s final judgment, and a panel of this court granted the State’s emergency motion for stay pending appeal, grounding its decision primarily in “the importance of maintaining the status quo on the eve of an election.” Veasey v. Perry,
On May 27, 2015, after oral argument was heard by the panel that initially considered this appeal, Senate Bill 983 (“SB 983”) was signed into law, eliminating the fee “associated with searching for or providing a record, including a certified copy of a birth record, if the applicant [for the record] states that the applicant is requesting the record for the purpose of obtaining an election identification certificate.” Act of May 25, 2015, 84th Leg., R.S., ch. 130, 2015 Tex. Sess. Laws Serv. Ch. 130 (codified as an amendment to Tex. Health & Safety Code § 191.0046(e)) (hereinafter “SB 983”). SB 983 became effective immediately. Id. §§ 2-3 (codified as note to Tex. Health & Safety Code § 191.0046); see also S.J. of Tex., 84th Leg., R.S., 1449-50 (2015) (reporting unanimous passage out of the Texas Senate); H.J. of Tex., 84th Leg., R.S., 4478-79 (2015) (reporting passage by 142 to 0, with one member absent, in the Texas House). SB 983 provides that “a local registrar or county clerk who issues a birth record” required for an EIC that would otherwise be entitled to collect a fee for that record “is entitled to payment of the amount from the [Department [of State Health Services].” Act of May 25, 2015, 84th Leg., R.S., ch. 130 (codified as an amendment to Tex. Health & Safety Code § 191.0046(f)). SB 983 did not appropriate funds to spread public awareness about the free birth records. The parties addressed the potential effect of SB 983 on their claims
Considering the State’s appeal from the district court’s judgment, the panel opinion held that the district court committed legal errors in conducting its discriminatory purpose analysis; therefore, it vacated that portion of the district court’s opinion and remanded the case for further proceedings. See Veasey,
While this case was awaiting oral argument before our full court, in light of the upcoming elections in November 2016, the parties applied to the Supreme Court to vacate the stay of the district court’s injunction that a panel of this court originally entered in October 2014. The Supreme Court denied the motion to vacate the stay but noted that if, by July 20, 2016, this court had “neither issued an opinion on the merits of the case nor issued an order vacating or modifying the current stay order, an aggrieved party [could] seek interim relief from th[e Supreme] Court by filing an appropriate application.” Veasey v. Abbott, — U.S. ——,
II. Section 2 of the Voting Rights Act
A. Discriminatory Purpose
The State appeals the district court’s holding that SB 14 was passed with a discriminatory purpose in violation of the Fourteenth and Fifteenth Amendments and Section 2 of the Voting Rights Act. We review this determination for clear error. “If the district court’s findings are plausible in light of the record viewed in its entirety, we must accept them, even though we might have weighed the evidence differently if we had been sitting as a trier of fact.” Price v. Austin Indep. Sch. Dist.,
We apply the framework articulated in Village of Arlington Heights v. Metropolitan Housing Development Corp.,
1. Legal Errors in the District Court’s Analysis
“Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.” Arlington Heights,
In Arlington Heights, the Supreme Court set out five nonexhaustive factors to determine whether a particular decision was made with a discriminatory purpose,
The State’s stated purpose in passing SB 14 centered on protection of the sanctity of voting, avoiding voter fraud, and promoting public confidence in the voting process. No one questions the legitimacy of these concerns as motives. The disagreement centers on whether SB 14 was passed with impermissible motives as well. We recognize that evaluating motive, particularly the motive of dozens of people, is a difficult enterprise. We acknowledge the charged nature of accusations of racism, particularly against a legislative body, but we must also face the sad truth that racism continues to exist in our modern American society despite years of laws designed to eradicate it. We appreciate the district court’s efforts to address this difficult inquiry. Nonetheless, we hold that much of the evidence upon which the district court relied was “infirm.” See Pullman-Standard,
One type of evidence on which the district court relied in seeking to discern the Legislature’s intent was Texas’s history of enacting racially discriminatory voting measures. See Veasey v. Perry,
We also recognize that not all “history” was “long ago” and that there were some more contemporary examples of discrimination identified by the Plaintiffs in the district court. The evidence of relatively recent discrimination cited by the district court is more probative of discriminatory intent. See, e.g., Veasey v. Perry,
Additionally, the district court relied on contemporary examples of statewide discrimination evidenced by two redistricting cases that, taken alone, form a thin basis for drawing conclusions regarding contemporary State-sponsored discrimination. The first, Bush v. Vera,
The district court’s reliance on post-enactment speculation by opponents of SB 14 was also misplaced. Discerning the intent of a decisionmaking body is difficult and problematic. Hunter,
Inquiries into congressional motives or purposes are a hazardous matter. When the issue is simply the interpretation of legislation, the Court will look to statements by legislators for guidance as to the purpose of the legislature, because the benefit to sound decision-making in this circumstance is thought sufficient to risk the possibility of misreading Congress’ purpose. It is entirely a different matter when we are asked to void a statute that is, under well-settled criteria, constitutional on its face, on the basis of what fewer than a handful of Congressmen said about it. What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew guesswork.
To ascertain the Texas Legislature’s purpose in passing SB 14, the district court mistakenly relied in part on speculation by the bill’s opponents about proponents’ motives (rather than evidence of their statements and actions). For instance, it credited the following: Representative Hernandez-Luna’s simple assertion that two city council seats in Pasadena, Texas were made into at-large seats “in order to dilute the Hispanic vote' and representation”; repeated testimony that the 2011 session was imbued with anti-immigrant sentiment;
“The Supreme Court has ... repeatedly cautioned — in the analogous context of statutory construction — against placing too much emphasis on the contemporaneous views of a bill’s opponents.”
The district court also placed inappropriate reliance upon the type of post-enactment testimony which courts routinely disregard as unreliable. See Barber v. Thomas,
Because the district court relied upon evidence we conclude is infirm, the district court’s opinion cannot stand as written. The next question, then, is whether we reverse and render judgment for the State or remand to the district court with instructions.
2. Remand for Re-Weighing of the Evidence
While the district court’s analysis contained some legal infirmities, the rec
In Pullman-Standard, the Supreme Court reversed a panel of this court after the panel weighed the facts and rendered judgment, rather than remanding for further proceedings. Id. at 292-93,
Pursuant to this clear guidance, our inquiry is whether “the record permits of only one resolution of the factual issue.” Id. at 292,
First, although the record does not contain direct evidence that the Texas Legislature passed SB 14 with a racially invidious purpose, this does not mean there is no evidence that supports a finding of discriminatory intent. “[Discriminatory intent need not be proved by direct evidence.” Rogers v. Lodge,
In this day and age we rarely have legislators announcing an intent to discriminate based upon race, whether in public speeches or private correspondence.
For example, in employment discrimination cases, we do not automatically find for an employer who proffers a race-neutral reason for terminating an employee; instead, the employee can show that this reason is pretextual. See McDonnell Douglas Corp. v. Green,
The record shows that drafters and proponents of SB 14 were aware of the likely disproportionate' effect of the law on minorities, and that they nonetheless passed the bill without adopting a number of proposed ameliorative measures that might have lessened this impact. For instance, the Legislature was advised of the likely discriminatory impact by the Deputy General Counsel to the Lieutenant Governor and by many legislators, and such impact was acknowledged to be “common sense” by one of the chief proponents of the legislation.
Additionally, although he was careful with his comments about the legislation, one of the authors of SB 14, Senator Fraser, testified that he “believe[s] today the
The district court also heard evidence that SB 14 is only tenuously related to the legislature’s stated purpose of preventing voter fraud. For example, the record shows that Texas has a history of justifying voter suppression efforts such as the poll tax and literacy tests with the race-neutral reason of promoting ballot integrity. See id. at 636 & n.24. Dr. Vernon Burton, an expert in race relations, testified about the “history of official discrimination in Texas voting.” He identified some devices Texas has used to deny minorities the vote, including “the all[-]White primary, the secret ballot and the use of illiteracy[,] ... poll tax, re-registration and purging.” He testified as follows regarding “the stated rationale” for each of these devices:
Q What, in your opinion, was the stated rationale for the enactment of all[-]White primaries in Texas?
A The stated rationale was voter fraud.
Q What was the stated rationale, in your opinion, for the use of secret ballot provisions in Texas?
A The stated rationale was to prevent voter fraud.
Q And what was the stated rationale, in your opinion, for the use of the poll tax in Texas?
A The stated rationale by the State was to prevent voter fraud.
Q And how about the stated rationale for the use in Texas of re-registration requirements and voter purges?
A The stated rationale was voter fraud.
Q Dr. Burton, in your expert opinion, did these devices actually respond to sincere concerns or incidents — incidences of voter fraud?
A No.
Here, too, there is evidence that could support a finding that the Legislature’s race-neutral reason of ballot integrity offered by the State is pretextual. This bill was subjected to radical departures from normal procedures. Consideration of procedural departures is a difficult inquiry, because on the one hand, “[departures from the normal procedural sequence ... might afford evidence that improper purposes are playing a role.” Arlington Heights,
In this case, for example, the procedural maneuvers employed by the Texas Legislature and the State occurred, as the district court notes, only after repeated attempts to pass voter identification bills were blocked through countervailing pro
Texas is a huge state in land mass and population and the Legislature faces great challenges in governing. The Texas Legislature meets for regular sessions for less than five months out of every two years. Tex. Const, art. III, § 24; Tex. Gov’t Code § 301.001 (West 2013).
The Legislature is entitled to set whatever priorities it wishes. Yet, one might expect that when the Legislature places a bill on an expedited schedule and subjects it to such an extraordinary degree of procedural irregularities, as was the case with SB 14, such a bill would address a problem of great magnitude. Ballot integrity is undoubtedly a worthy goal. But the evidence before the Legislature was that in-person voting, the only concern addressed by SB 14, yielded only two convictions for in-person voter impersonation fraud out of 20 million votes cast in the decade leading up to SB 14’s passage.
In the context of the many pressing matters of great importance to Texas that did not result in these legislative irregularities, we cannot say that the record leads to only one factual conclusion in this case. Pullman-Standard,
This circumstantial evidence of discriminatory intent is augmented by contemporary examples of State-sponsored discrimination in the record. For example, the record shows that as late as 1975, Texas attempted to suppress minority voting through purging the voter rolls, after its former poll tax and re-registration require
It is also probative that many rationales were given for a voter identification law, which shifted as they were challenged or
Further supporting the district court’s finding is the fact that the extraordinary measures accompanying the passage of SB 14 occurred in the wake of a “seismic demographic shift,” as minority populations rapidly increased in Texas, such that the district court found that the party currently in power is “facing a declining voter base and can gain partisan advantage” through a strict voter ID law.
In sum, although some of the evidence on which the district court relied was infirm, there remains evidence to support a finding that the cloak of ballot integrity could be hiding a more invidious purpose. As we have explained, the absence of direct evidence such as a “let’s discriminate” email cannot - be and is not dispositive. Because we do not know how much the evidence found infirm weighed in the district court’s calculus, we cannot simply, affirm the decision. However, it is not an appellate court’s place to weigh evidence. See Price,
Time is short, though. The Supreme Court has, in effect, set a July 20 deadline for this court to act, after which it will entertain motions for relief. Veasey v. Abbott,
Additionally, we recognize the burden our majority opinion places on the district court to implement a remedy for the discriminatory effect violation with so little time, see infra Part II.B. Therefore, to avoid disruption of the upcoming election, we rely on equitable principles in concluding that the district court should first focus on fashioning interim relief for the discriminatory effect violation in the months leading up to the November 2016 general election. The primary concern of this court and the district court should be to ensure that SB 14’s discriminatory effect is ameliorated as Section 2 requires in time for
We instruct the district court to take the requisite time to reevaluate the evidence and determine anew whether the Legislature acted with a discriminatory intent in enacting SB 14. But it is unnecessary for the district court to undertake this task until after the November 2016 election. See Purcell v. Gonzalez,
B. Discriminatory Effect
Plaintiffs allege that SB 14 has a discriminatory effect in violation of Section 2 of the Voting Rights Act, which proscribes any “voting qualification or prerequisite to voting ór standard, practice, or procedure ... which results in a denial or abridgement of the right of any citizen ... to vote on account of race or color.” 52 U.S.C. § 10301(a). Unlike discrimination claims brought pursuant to the Fourteenth Amendment, Congress has clarified that violations of Section 2(a) can “be proved by showing discriminatory effect alone.” Thornburg v. Gingles,
1. The Gingles Factors and Two-Part Framework
To prove that a law has a discriminatory effect under Section 2, Plaintiffs must show not only that the challenged
Although courts have often applied the Gingles factors to analyze claims of vote dilution,
(a) The Two-Part Framework
We now adopt the two-part framework employed by the Fourth and Sixth Circuits to evaluate Section 2 “results” claims. The framework has two elements:
[1] [T]he challenged standard, practice, or procedure must impose a discriminatory burden on members of a protected class, meaning that members of the pro-, tected class have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice, [and]
[2] [T]hat burden must in part be caused by or linked to social and historical conditions that have or currently produce discrimination against members of the protected class.
League of Women Voters of N.C. v. North Carolina,
The first part of this two-part framework inquires about the nature of the burden imposed and whether it creates a disparate effect in that “members of the protected class have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice” — this encompasses Section 2’s definition of what kinds of burdens deny or abridge the right to vote. Compare 52 U.S.C. § 10301 (proscribing denial or abridgement of the right to vote and defining how a violation of Section 2 may be established), with League of Women Voters,
The second part of the two-part framework draws on the Supreme Court’s guidance in Gingles. See League of Women Voters,
(b) The Gingles Factors
As did the Fourth and Sixth Circuits, we conclude that the Gingles factors should be used to help determine whether there is a sufficient causal link between the disparate burden imposed and social and historical conditions produced by discrimination.
These factors include:
1.the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process;
2. the extent to which voting in the elections of the state or political subdivision is racially polarized;
3. the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;
4. if there is a candidate slating process, whether the members of the minority group have been denied access to that process;
5. the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process;
6. whether political campaigns have been characterized by overt or subtle racial appeals;
7. the extent to which members of the minority group have been elected to public office in the jurisdiction.
Id. at 36-37,
[8.] whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group[; and]
[9.] whether the policy underlying the state or political subdivision’s use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.
Id.
These factors are not exclusive, and “there is no requirement that any particular number of factors be proved, or that a majority of them point one way or the other.” Id. at 45,
(c) This Analysis is Appropriate for Section 2 Effect Challenges
The State argues that the Gingles factors are inapposite in this context, and that we should apply the two-part test as it was applied in the Seventh Circuit in Frank v. Walker,
Use of the two-factor test and the Gin-gles factors limits Section 2 challenges to those that properly link the effects of past and current discrimination with the racially disparate effects of the challenged law. Applying the Gingles factors involves engaging in a multi-factor analysis, under which no one factor has determinative weight. Gingles,
We conclude that the two-part framework and Gingles factors together serve as
The State argues that we should instead adopt a bright-line test as our limiting principle. As the State would have it, so long as the State can articulate a legitimate justification for its election law and some voters are able to meet the requirements, there is no Section 2 violation. This argument effectively nullifies the protections of the Voting Rights Act by giving states a free pass to enact needlessly burdensome laws with impermissible racially discriminatory impacts. The Voting Rights Act was enacted to prevent just such invidious, subtle forms of discrimination. See Chisom v. Roemer,
In addition, two district courts have now applied the same analysis we apply here to
• Furthermore, the Seventh Circuit’s approach in Frank is not inconsistent with our own. The Seventh Circuit applied the two-part framework only “[f]or the sake of argument,” did not apply the Gingles factors, and expressed skepticism about the second step of the two-part analysis “because it does not distinguish discrimination by the [government] defendants from other persons’ discrimination.” Frank,
To the extent that the State argues causality may be established only where there is a finding that state action caused the social and historical conditions begetting discrimination, see Frank,
Finally, we reject the argument that Crawford mandates upholding SB 14 simply because the State expressed legitimate justifications for passing the law.
Crawford clearly established that states have strong interests in preventing voter fraud and increasing voter confidence by safeguarding the integrity of elections.
Having established that the two-part analysis and Cingles factors are appropriate standards for examining Plaintiffs’ Section 2 claim,
2. SB 14’s Disparate Impact
The district court found that 608,-470 registered voters, or 4.5% of all registered voters in Texas, lack SB 14 ID. Veasey v. Perry,
(a) Expert Analyses of SB 14’s Impact
Plaintiffs’ experts relied on four distinct methods of analysis to determine the races of those on the No-Match List.
The district court likewise concluded that SB 14 disproportionately impacts the poor, who are disproportionately minorities. Id. at 664-65. It credited expert testi-' mony that 21.4% of eligible voters earning less than $20,000 per year lack SB 14 ID, compared to only 2.6% of voters earning between $100,000 and $150,000 per year. Id. at 664. Lower income respondents were also more likely to lack the underlying documents to get an EIC. Id. Dr. Jane Henrici, an anthropologist and professorial lecturer at George Washington University, explained that:
[Unreliable and irregular wage work and other income ... affect the cost of taking the time to locate and bring the requisite papers and identity cards, travel to a processing site, wait through the assessment, and get photo identifications. This is because most job opportunities do not include paid sick or other paid leave; taking off from work means lost income. Employed low-income Texans not already in possession of such documents will struggle to afford income loss from the unpaid time needed to get photo identification.
Id. (alteration in original).
Furthermore, the court found that the poor are less likely to avail themselves of services that require ID, such as obtaining credit and other financial services. Id. They are also less likely to own vehicles and are therefore more likely to rely on public transportation. Id. at 665, 672-73. As a result, the poor are less likely to have a driver’s license and face greater obstacles in obtaining photo identification. Id. Even obtaining an EIC poses an obstacle — the district court credited evidence that hundreds of thousands of voters face round-trip travel times of 90 minutes or more to the nearest location issuing EICs. Id. at 672. Of eligible voters without access to a vehicle, a large percentage faced trips of three hours or more to obtain an EIC.
Although the State does not dispute the underlying factual findings, it identifies several purported legal errors in the district court’s decision. We address only the most relevant challenges at length herein.
First, the State disputes the propriety of using statistical analyses to determine the racial composition of the No-Match List. Relying on Bartlett v. Strickland,
Second, the State relies on Strickland to argue that the canon of constitutional avoidance militates against requiring the
Finally, before our full court, the State refined its argument that our holding that SB 14 violates Section 2 would make Section 2 “invalid as no longer congruent and proportional to the.Fifteenth Amendment.” Relatedly, the State and dissenting opinions characterize the district court’s findings as resting solely on a statistical disparity in SB 14 ID rates, rather than any concrete proof that voters were denied the right to vote. These arguments miss the mark. In particular, the constitutionality argument by the State is short sighted and ignores the history and text of the Fifteenth Amendment. If the State had its way, the Fifteenth Amendment and Section 2 would only prohibit outright denial of the right to vote and overtly purposeful discrimination. Yet, both the Fifteenth Amendment and Section 2 also explicitly prohibit abridgement of the right to vote. U.S. CONST, amend. XV; 52 U.S.C. § 10301(a). Application of the Gingles factors then determines whether any such abridgement is linked to social and historical conditions of discrimination such that the abridgement has occurred “on account of race.” U.S. Const, amend. XV; 52 U.S.C. § 10301(a). The standards we apply here, and our manner of applying them, show that Section 2’s protections remain closely tied to the power granted Congress by the Fifteenth Amendment.
Regarding the district court’s findings, they rest on far more than a statistical
(c) Evidence of the Burdens Imposed on Plaintiffs by SB 14
The individual Plaintiffs testified that they faced many specific burdens in attempting to obtain SB 14 ID or vote. The district court found that “[t]he Plaintiffs [d]emonstrate[d] the [i]mpact” of SB 14 along several axes, including: (1) the difficulty of obtaining an EIC and voting with the proper ID because of Texas’s poor implementation of this program; (2) the cost of underlying documents necessary to obtain an EIC or other SB 14 ID; (3) diffieulties with delayed, nonexistent, out-of-state, or amended birth certificates due to nontraditional births and errors on birth certificates; (4) long distances and other travel issues that made getting to a registrar and DPS office problematic for many Plaintiffs; (5) a strict disability exemption
First, the record evidence disproves the State’s claim that “the plaintiffs have failed to identify a single individual who faces a substantial obstacle to voting because of SB 14.”
Plaintiff Bates faced a similar problem when she reported to the polls, as she was unaware that her existing ID was insufficient until she attempted to vote in person. At that point, it was too late to cast an absentee ballot, and she was not able to obtain SB 14 ID in time to cure her provisional ballot because she could not afford to purchase her Mississippi birth certificate at its $42 cost on her $321 fixed monthly income. Id. at 649 & n.115, 665. Plaintiff Gordon Benjamin was not able to obtain an EIC at the DPS because he was unable to get his Louisiana birth certificate for the hefty $81 fee online. Eventually, his sister was able to get his birth certificate in person on a trip through Louisiana, but he was unable to make that trip before the 2013 elections. Id. at 671, 673. Benjamin cast a provisional ballot that went uncured. Many more stories like these proliferate in the pages of the district court’s opinion. Id. at 667-77.
Traveling to DPS offices to obtain EICs posed an additional obstacle for many Plaintiffs. The district court found that four Plaintiffs rely almost exclusively on public transportation. One of these Plaintiffs, Ken Gandy, faces an hour-long, one-way trip to reach the nearest DPS office. See id. at 673. Plaintiffs Estrada and Espi-nosa use family and friends for transportation, but they each face “a 60-mile round-trip ride to the nearest DPS station.” Id.
The State failed to contest any of this evidence, except to suggest that these Plaintiffs could vote by mail. The district court did not clearly err in finding that mail-in voting is not an acceptable substitute for in-person voting in the circumstances presented by this case.
Elderly plaintiffs may also face difficulties getting to their mailboxes, like Plaintiff Carrier, who has to be driven to his mailbox because it is at the local post office. Id. at 673. Seven of the Plaintiffs further testified they are reluctant to vote by mail due to the increased risk of fraud
The State further claims SB 14 has no disparate impact because the State offers “free” EICs, and after SB 983, free underlying documentation to Texas voters who were born in Texas. Yet, the record is replete with evidence that the State devoted little funding or attention to educating voters about the new voter ID requirements, resulting in many Plaintiffs lacking information about these supposed accommodations until they were informed about them during the course of this lawsuit. See, e.g., id. at 667-69, 676 (describing the “insufficient” implementation of the EIC program, the fact that many Plaintiffs did not know about the EIC or required voter ID until being turned away at the polls, that one Plaintiff paid $22 for his birth certificate because he was not told about the reduced-cost alternative then available, and other issues with the implementation of SB 14). We find no clear error in the district court’s finding that the State’s lackluster educational efforts resulted in additional burdens on Texas voters.
We conclude that the district court did not clearly err in finding that SB 14 imposes significant and disparate burdens on the right to vote.
3. The Gingles Factors
We next consider the district court’s finding that SB 14 “produces a discriminatory result that is actionable because [it] ... interacts] with social and historical conditions in Texas to cause an inequality in the electoral opportunities enjoyed by African-Americans and Hispanic voters.” Id. at 698. The district court found Gingles factors 1, 2, 5, 6, 7, 8, and 9 probative. Id.
(a) Gingles Factor 1: History of Official Discrimination
As part of' this “searching practical evaluation of the past and present reality,” Gingles,
Even acknowledging that long-ago evidence of discrimination has less force than more contemporary evidence under Shelby County, this factor and other factors support the district court’s finding that SB 14 has a discriminatory effect.
(b) Gingles Factor 2: Racially Polarized Voting
The district court relied primarily on the testimony of Dr. Barry Burden, a political science professor, and Mr. George Korbel, an expert on voting rights, in concluding that racially polarized voting exists throughout Texas. The court stated that “[r]acially polarized voting exists when the race or ethnicity of a voter correlates with the voter’s candidate preference.” Id. at 637 (citing Gingles,
(c) Gingles Factor 5: Effects of Past Discrimination
Next, the district court appraised “[t]he extent to which members of the minority group ... bear the effects of discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process.” Veasey v. Perry,
Importantly, the district court also found that “[t]hese socioeconomic disparities have hindered the ability of African-Americans and Hispanics to effectively participate in the political process. Dr. An-solabehere testified that these minorities register and turn[]out for elections at rates that lag far behind Anglo voters.”
The district court ultimately found:
SB 14’s voter ID requirements interact with social and historical conditions in Texas to cause an inequality in the electoral opportunities enjoyed by African-Americans and Hispanic voters as compared to Anglo voters. In other words, SB 11 does not disproportionately impact AJricanr-Americans and Hispanics by mere chance. Rather, it does so by its interaction with the vestiges of past and current racial discrimination.
Veasey v. Perry,
Again, the State does not dispute the underlying data or methodologies. Instead, the State objects that the district court must have found some evidence that SB 14 directly caused a reduction in turnout. The State insists that the district court erred by failing to ask whether SB 14 causes a racial voting disparity, rather than a disparity in voter ID possession. We have never required such a showing. Section 2 asks whether a standard, practice, or procedure results in “a denial or abridgement of the right ... to vote.” 52 U.S.C. § 10301(a). Abridgement is defined as “[t]he reduction or diminution of something,” Abridgement, Black’s Law DictionaRY (10th ed. 2014), while the Voting Rights Act defines “vote” to include “all action necessary to make a vote effective
For the same reason, we decline to require a showing of lower turnout to prove a Section 2 violation. An election law may keep some voters from going to the polls, but in the same election, turnout by different voters might increase for some other reason. See Veasey v. Perry,
Thus, while evidence of decreased turnout is relevant, it is not required to prove a Section 2 claim of vote denial or abridgement. In this case, the record contains evidence that minority voters generally turn out in lower numbers than non-minority voters and that State-sponsored discrimination created socioeconomic disparities, which hinder minority voters’ general participation in the political process. Accordingly, the district court did not clearly err in determining that the impact of past and current discrimination on minorities in Texas favors finding that SB 14 has a discriminatory effect under Section 2.
(d) Gingles Factor 6: Racial Appeals in Political Campaigns
While the existence of racial appeals in political campaigns is a factor that may be indicative of a law’s disparate impact, see Gingles,
(e) Gingles Factor 7 and Factor 8: Minority Public Officials and Responsiveness to Minority Needs
The extent to which minority candidates are elected to public office also contextualizes the degree to which vestiges of discrimination continue to reduce minority participation in the political process. See Gingles,
The district court also found that Texas’s history of discrimination, coupled with SB 14’s effect on minorities in Texas and the Legislature’s response to ameliorative amendments, demonstrated a lack of responsiveness to minority needs by elected officials. See Gingles,
The district court noted that minority legislators and constituents testified about the likely disparate impact of SB 14, yet their amendments to ameliorate that impact were rejected without explanation. See id. at 651, 658, 669, 698, 702. These included amendments to expand the forms of acceptable ID to include student IDs, federal IDs, state-government employee IDs, measures to fund education and training related to the law, and indigency exceptions.
(f) Gingles Factor 9: Tenuousness of Policies Underlying the Law
The district court concluded that the policies underlying SB 14’s passage were only tenuously related to the State’s interests in preventing fraud and increasing voter confidence in elections. We do not deny that the State’s articulated objectives are legitimate state interests, as the Supreme Court has made clear. See Crawford,
The district court found that “the stated policies behind SB 14 are only tenuously related to its provisions.” Veasey v. Perry,
The district court likewise found that the Legislature’s expressed concerns about undocumented immigrants and noncitizens voting were misplaced. It credited testimony that undocumented immigrants are unlikely to vote as they try to avoid contact with government agents for fear of being deported. Id. at 654. At least one Representative who voted for SB 14 conceded that he had no evidence to substantiate his fear of undocumented immigrants voting. Id. Additionally, the district court found that SB 14 would not prevent noncitizens from voting, since noncitizens can legally obtain a Texas driver’s license or concealed handgun license, two forms of SB 14 ID. Id. at 654-55.
The district court also found “no credible evidence” to support assertions that voter turnout was low due to a lack of confidence in elections, that SB 14 would increase public confidence in elections, or that increased confidence would boost voter turnout. Id. at 655. Two State Senators and the Director of the Elections Division at the Texas "Secretary of State’s office were all unaware of anyone abstaining from voting out of concern for voter fraud, and the Director testified that implementing SB 14’s provisional ballot process might actually undermine voter confidence. Id.
Rather, the district court credited testimony that SB 14 would decrease voter turnout. Id. at 655-56. According to a well-established formula employed by political scientists to assess individuals’ likelihood of voting in an election, increasing the cost of voting decreases voter turnout — particularly among low-income individuals, as they are most cost sensitive. Id. at 656. Further, the district court dismissed the argument that increased turnout during the 2008 presidential election was demonstrative of increased voter confidence in two states that had recently passed voter ID laws. Id. at 655. Instead, it found that the increased turnout, which occurred nationwide, was due to President Obama’s candidacy. Id. Finally, the court also found that
(g) Discriminatory Effect Conclusion
In light of its findings regarding SB 14’s disparate impact, and its application of the Gingles factors, the district court held that SB 14 acted in concert with current and historical conditions of discrimination to diminish African Americans’ and Hispanics’ ability to participate in the political process. Id. at 695-98. We conclude that the district court performed the “intensely local appraisal” required by Gingles,
(1) SB 14 specifically burdens Texans living in poverty, who are less likely to possess qualified photo ID, are less able to get it, and may not otherwise need it; (2) a disproportionate number of Texans living in poverty are African-Americans and Hispanics; and (3) African-Americans and Hispanics are more likely than Anglos to be living in poverty because they continue to bear the socioeconomic effects caused by decades of racial discrimination.
Veasey v. Perry,
The district court thoroughly evaluated the “totality of the circumstances,” each finding was well-supported, and the State has failed to contest many of the underlying factual findings. Furthermore, the district court’s analysis comports with the Supreme Court’s recent instruction that “a disparate-impact claim that relies on a statistical disparity must fail if the plaintiff cannot point to a defendant’s policy or policies causing that disparity.”
We note that, because the district court’s findings link Texas’s state-sponsored history of discrimination to the conditions affecting minority voters in Texas today, we need not and do not decide whether proof of such state-sponsored discrimination is required under the second part of this analysis. Cf. Frank,
We conclude that the district court did not clearly err in determining that SB 14 has a discriminatory effect on minorities’ voting rights in violation of Section 2 of the Voting Rights Act. As discussed below, we remand for a consideration of the appropriate remedy in light of the impending general election.
III. First and Fourteenth Amendment Burden on the Right to Vote
Plaintiffs argue that SB 14 also unconstitutionally burdens their right to vote, as forbidden by the First and Fourteenth Amendments. We decline to decide this question, under the “well established principle governing the prudent exercise of this [c]ourt’s jurisdiction that normally th[is c]ourt will not decide a constitutional question if there is some other ground upon which to dispose of the ease.” Escambia Cty. v. McMillan,
Accordingly, it is unnecessary for the en banc court to address this issue, and we need not and do not decide whether SB 14 violates the First and Fourteenth Amendments by placing an unconstitutional burden on the right to vote. See Merced v. Kasson,
IV. Poll Tax
The Veasey Plaintiffs
To the extent that the Veasey Plaintiffs have not abandoned or conceded this claim,
The Veasey. Plaintiffs previously facially challenged SB 14 with respect to Texas voters born out of state (who are unaffected by SB 983’s passage). Those voters could face fees in their state of birth to obtain documentation required for an EIC. We conclude that SB 14 does not facially impose a poll tax on those voters. Rather, SB 14 requires all Texas voters to present valid identification at the polls, exercising the State’s “legitimate interest in assessing the eligibility and qualifications of voters.” Gonzalez v. Arizona,
Likewise, SB 14 did not impose a poll tax on voters before the passage of SB 983. It did not “impose[] a material requirement solely upon those who refuse[d]” to pay a poll tax, as proscribed by the Twenty-Fourth Amendment. Id. at 541-42,
As amended by SB 983, Texas law no longer imposes any direct fee for the underlying documentation required to obtain a qualifying voter ID. What remain are the requirements that such voters travel to the local registrar or county clerk’s office, gather and present certain forms of documentation to receive the certified record, travel to the DPS office with that record, and present the certified record, along with two forms of supporting identification, to receive an EIC. See 37 Tex. Admin. Code § 15.182(3)—(4). The Veasey Plaintiffs appear to argue in their Rule 28(j) Letter that these obligations make SB 14 unconstitutional under Harman because they “requir[e] voters to follow a burdensome alternative process to avoid paying a ... poll tax.”
To the extent the Veasey Plaintiffs now attempt to analogize SB 14 and SB 983 to the scheme in Harman, we reject that analogy. In Harman, the state of Virginia forced those who would vote in federal elections to choose between paying a poll tax and meeting a registration requirement before each election year.
Here, the State does not offer Texas voters a choice between paying a fee and undergoing an onerous procedural process. Cf. id. at 540-41,
[I]t is important to emphasize that the question presented is not whether it would be within a State’s power to abolish entirely the poll tax and require all voters — state and federal — to file annually a certificate of residence. Rather, the issue here is whether the State of Virginia may constitutionally confront the federal voter with a requirement that he either pay the customary poll taxes as required for state elections or file a certificate of residence.
In light of the recently-enacted SB 983, SB 14 does not impose an unconstitutional poll tax under the Fourteenth or Twenty-Fourth Amendments, nor did it impose a poll tax before SB 983’s enactment. Accordingly, we vacate the district court’s judgment for the Veasey Plaintiffs on their poll tax claim and render judgment in the State’s favor.
V. Remedy
After finding that SB 14 was enacted with a racially discriminatory purpose, the district court fully enjoined SB 14’s implementation, with the exception of several sections of the law that do not relate to photo identification. See Veasey v. Perry,
“When devising a remedy to a [Section] 2 violation, the district court’s ‘first and foremost obligation ... is to correct the Section 2 violation.’ ” Brown,
When a statute contains a sever-ability clause, courts must take special care to attempt to honor a legislature’s policy choice to leave the statute intact. See Ayotte v. Planned Parenthood of N. New England,
There are times when a court might give a state legislature an opportunity to cure the infirmities in the statute before permitting the district court to fashion a remedy. See Wise v. Lipscomb,
However, the Supreme Court and our court have acknowledged that when it is not practicable to permit a legislative body this opportunity because of an impending election, “it becomes the ‘unwelcome obligation’ of the federal court to devise and impose a [remedy] pending later legislative action.” Wise,
Such circumstances are present here: the Texas Legislature is not scheduled to be in session again until January 2017, and the November 2016 general election is fast approaching. It would be untenable to permit a law with a discriminatory effect to remain in operation for that election.
Because of the Supreme Court’s order and the impending election, we would necessarily have to give only limited time for any legislative fix. Since the legislature is not scheduled to be in session this year, doing so would require that the Texas Governor call a special session of the Legislature. Accordingly, although legislative intercession may occur, it may not be feasible, and we follow the Supreme Court’s guidance and permit the district court to enter an order that remedies SB 14’s discriminatory effects. See Wise,
In the event that the Governor calls a special session to address this issue or should a later Legislature again address the issue of voter identification, any new law would present a new circumstance not addressed here. Such a new law may cure the deficiencies addressed in this opinion. Neither our ruling here nor any ruling of the district court on remand should prevent the Legislature from acting to ameliorate the issues raised in this opinion. Any concerns about a new bill would be the subject of a new appeal for another day.
On remand, the district court should refer to the policies underlying SB 14 in fashioning a remedy. We acknowledge that the record establishes that the vast majority of eligible voters possess SB 14 ID, and we do not disturb SB 14’s effect on those voters — those who have SB 14 ID must show it to vote. The remedy must be tailored to rectify only the discriminatory effect on those voters who do not have SB 14 ID or are unable to reasonably obtain such identification. See Frank II,
Clearly, the Legislature wished to reduce the risk of in-person voter fraud by strengthening the forms of identification presented for voting. Simply reverting to the system in place before SB 14’s passage would not fully respect these policy choices — it would allow voters to cast ballots after presenting less secure forms of identification like utility bills, bank statements, or paychecks. See Tex. Elec. Code § 63.001(b) (West 2010). The panel opinion noted that one possibility would be to reinstate voter registration cards as documents that qualify as acceptable identification under the Texas Election Code for those individuals who do not have and cannot reasonably obtain SB 14 ID.
In light of the impending election, we order the district court to file its order regarding the proper discriminatory effect remedy as soon as possible. The parties have expressed a willingness to work cooperatively with the district court to provide a prompt resolution of this matter, and we urge them to do so to avoid election eve uncertainties and emergencies.
VI. Conclusion
A. Discriminatory Purpose Claim
For the reasons stated above, we REVERSE the district court’s judgment that SB 14 was passed with a racially discriminatory purpose and REMAND for the district court to consider this claim in light of the guidance we have provided in this opinion. As we have discussed, to avoid disruption of the upcoming election, the district court should first focus on fashioning interim relief for the discriminatory effect violation in the months leading up to the November general election. The district court should then reevaluate the evidence relevant to discriminatory intent and determine anew whether the Legislature acted with a discriminatory intent in enacting SB 14. We encourage the district court to wait until after the November 2016 election to make this new determination. However, whether the district court waits to make its findings until after the November election or does so sooner, we instruct that, in light of the limited time prior to the November 2016 election, the district court shall not implement any remedy arising from such reevaluation before this November’s election.
B. Discriminatory Effect Claim
We AFFIRM the district court’s finding that SB 14 violates Section 2 of the Voting Rights Act through its discriminatory effects and REMAND for consideration of the appropriate remedy consistent with this opinion as soon as possible. The district court must ensure that any remedy enacted ameliorates SB 14’s discriminatory effect, while respecting the Legislature’s stated objective to safeguard the integrity of elections by requiring more secure forms of voter identification.
C. Other Claims
We VACATE the district court’s holding that SB 14 is a poll tax under the Fourteenth and Twenty-Fourth Amendments and RENDER judgment for the State on this issue. We need not and do not address whether SB 14 unconstitutionally burdens the right to vote under the First and Fourteenth Amendments; therefore, we VACATE the district court’s judgment on that issue and DISMISS those claims.
D. Interim Relief
In sum, the district court’s immediate responsibility is to ensure the implementation of an interim remedy for SB 14’s discriminatory effect that disrupts voter identification rules for the 2016 election season as little as possible, yet eliminates the Section 2 discriminatory effect violation. The district court will need to reexamine the discriminatory purpose claim in accordance with the proper legal standards we have described, bearing in mind the effect any interim legislative action taken with respect to SB 14 may have. The district court’s task in this respect may await the November 8, 2016 general election.
Notes
. Part II.A. 1 as written represents the opinion of a plurality of the court. However, a majority of the court agrees that there are infirmities in the district court’s opinion regarding Plaintiffs’ discriminatory purpose claim, requiring reversal of the district court’s judgment that SB 14 was passed with a racially discriminatory purpose. A majority of the court also agrees that, given the court’s decision to reverse the district court’s judgment as to this claim, the court should remand to the district court with instructions to reweigh the evidence in light of this opinion.
. We refer to these required forms of identification under SB 14 as “SB 14 ID.”
.SB 14 also requires the name on the photo ID to be "substantially similar” to the voter’s registered name. Tex. Elec. Code § 63.001(c) (West Supp. 2014). If the names are not identical but are substantially similar, the voter must sign an affidavit that the voter and the registered voter are one and the same. Id. If the names are not substantially similar, the voter may submit a provisional ballot and within six days must go to the county registrar with additional ID to verify his or her identity. Id. §§ 63.001(g), 63.011, 65.0541(a) (West Supp. 2014).
. Among the forms of supporting identification are: voter registration cards, school records, insurance policies that are at least two years old, identification cards or driver’s licenses issued by another state that have not been expired for more than two years, Texas vehicle or boat titles or registrations, military records, Social Security cards, W-2 forms, expired Texas driver’s licenses, government agency ID cards, unexpired military dependent identification cards, Texas or federal parole or mandatory release forms, federal inmate ID cards, Medicare or Medicaid cards, immunization records, tribal membership cards from federally recognized tribes, and Veteran’s Administration cards. 37 Tex. Admin. Code § 15.182(4).
. The Department of State Health Services ("DSHS”) waived most of the fees for obtaining a birth certificate to get an EIC, but this provision separately required the Bureau of Vital Statistics, local registrars, and county clerks to collect a $2 fee for the issuance of a certified copy of a birth certificate, and permitted local registrars and county clerks to impose an additional $1 fee. Tex. Health & Safety Code § 191.0045(d), (e), (h) (West 2010).
. The district court also found that one-quarter of the '$2 million was earmarked to research what type of voter education was needed. Veasey v. Perry,
. A three-judge district court declined to grant judicial preclearance to override the United States Attorney General’s denial of preclearance. See Texas v. Holder,
. Plaintiff-Intervenor Texas League of Young Voters Education Fund (the “Texas League’’) was non-operational when the panel opinion was issued and remained so at least at the time the supplemental en banc briefs were filed in this case. "A claim becomes moot when ‘the parties lack a legally cognizable interest in the outcome.’ " Nat’l Rifle Ass'n of Am., Inc. v. McCraw,
. The district court did not enjoin enforcement of sections 16, 23, and 24 in accordance with SB 14’s severability clause. Sections 16 and 23 relate to increasing the penalties and offense levels for election code violations. See Tex. Elec. Code § 64.012 historical note (West 2010 & Supp. 2014) [Act of May 16, 2011, 82d Leg., R.S., ch. 123, §§ 16, 23, 2011 Tex. Gen. Laws 619, 623, 625]. Section 24 has expired, but once related to the purposes for which the voter registrars could use certain funds disbursed under the election code. See Act of May 16, 2011, 82d Leg., R.S., ch. 123, § 24, 2011 Tex. Gen. Laws 619.
. The parties also filed Rule 28(j) letters before the panel that initially heard this case. The parties noted the passage of SB 1934, effective on September 1, 2015, which provides that state-issued identification cards issued to individuals age 60 and older expire on a date to be specified by DPS. Act of May 29, 2015, 84th Leg., R.S., S.B. 1934 (codified as an amendment to Tex. Transp. Code § 521.101(f)(1)). Before this new law, ID cards for those 60 and older did not expire. 37 Tex. Admin. Code § 15.30. While Plaintiffs contended before the panel initially considering this case that SB 1934 will exacerbate the discriminatory effect of SB 14, the State insisted SB 1934 was passed merely to comply with the federal REAL ID Act. See 6 C.F.R. § 37.5(a). The panel opinion concluded that this issue is not yet ripe for Our review. See Texas v. United States,
. One of the dissenting opinions suggests that the majority opinion flouts the canon of constitutional avoidance by reaching the discriminatory purpose claim. We recognize the canon of constitutional avoidance, and where possible, we have avoided reaching constitutional claims unnecessarily, see infra Parts III and IV. However, we cannot avoid ruling on the discriminatory intent claim here, where the remedy to which Plaintiffs would be entitled for a discriminatory intent violation is potentially broader than the remedy the district court may fashion for the discriminatory impact violation. See City of Richmond v. United States,
. The State argues that, instead of applying the Arlington Heights standard, we should apply a "clearest proof” standard grafted from cases involving the determination of whether a legislature meant to impose criminal punishment through a civil law when the law faces an ex post facto challenge. See, e.g., Smith v. Doe,
. Neither Arlington Heights nor our decision in Price,
. "Relatively recent" does not mean immediately contemporaneous. Shelby County emphasized that "things have changed” since the 1965 passage of the Voting Rights Act,
. Nonetheless, as discussed infra, the Court's conclusion in LULAC that Texas's 2003 redistricting plan violated the Voting Rights Act does evidence a history of discrimination that is relevant to our discriminatory effect analysis, because historical instances of discrimination continue-to produce socioeconomic conditions that the district court found contributed to the racial disparities in ID possession.
. The relevance of this evidence apparently rests partially upon the unsupported premise that a legislator concerned about border security or opposed to the entry into Texas of undocumented immigrants is also necessarily
. Here, the problematic evidence is the speculation and conclusions of the opposing legislators. We are not suggesting that the bill opponents lack credibility because they are opposing legislators, as credibility is a question for the trier of fact. Testimony found to be credible from opponents of the bill about conduct and statements by proponents would be highly probative. Our point is simply that speculation and conclusory accusations by opposing legislators are not an appropriate foundation for a finding of purposeful discrimination.
. In the different but somewhat analogous realm of employment discrimination, we have similarly rejected the plaintiff's testimony that he or she believed that the motivation of his or her employer was racial or other discrimination. See Byers v. Dall. Morning News, Inc., 209 F.3d 419, 426-27 (5th Cir. 2000).
. In fact, in this case, there is evidence that the proponents of SB 14 were careful about what they said and wrote about the purposes of SB 14, knowing it would be challenged during the preclearance process under the Voting Rights Act. Senator Fraser, one of the authors of SB 14, admitted during his deposition that he believed “that the public legislative record would either go to the Department of Justice or a three-judge panel as part of the [Voting Rights Act] Section 5 review process,” and that he was therefore "aware that everything that [he] was saying was part of a public record.” The Deputy General Counsel to the Lieutenant Governor, Bryan Hebert, testified that he sent an email "urgfing] senators to emphasize the detection and deterrence of fraud and protectfing] public confidence in elections” as "the goal” of SB 14, "to remind people what the point of the bill was” for their speeches on the floor of the Texas Senate.
. Of course, employment discrimination cases are not directly supportive, but they are analogous. One of the dissenting opinions points out that the intent of the Legislature differs from that of an employer because a legislature's intent is "a pastiche of each individual representative's views, mixed policies and motives.” Jones Dissenting Op. at 283 n.5. But while each legislator casts his or her own vote, these votes are often cast in blocs and along party lines. Recognition that legislatures, just as employers, may articulate pre-textual reasons for discriminatory actions is not a superficial equation, but rather a realistic acknowledgment.
. Representative Todd Smith, a proponent of the legislation, stated that it was "common sense” the law would have a disproportionate effect on minorities. Veasey v. Perry,
.One of the dissenting opinions calls into question the rationale behind these maneuvers and draws different interpretations and inferences from the evidence. However, it is the exclusive province of the district court to engage in this fact finding. Pullman-Standard,
. The Texas Governor also has the power to call special sessions of the Legislature, which are topically limited to the confines of the proclamation summoning the Legislature. Tex. Const, art. IV, § 8.
. Representative Fischer testified that the Legislature had access to data from the 2008 and 2010 elections when considering SB 14, which showed that "of the millions of votes
. This statement is not intended as a criticism of allowing mail-in ballots, which are a vital means of enabling voting when it would otherwise be difficult or impossible for some people to exercise their right to vote in person. It is simply an acknowledgement that the evidence supporting the need for reform was minimal on the in-person voting side.
. One of the dissenting opinions claims that “the Indiana and Texas laws are not meaningfully different.” Jones Dissenting Op. at 296 n.26. This ignores the district court’s findings and the obvious differences between the two laws that affect the discriminatory impact analysis. The district court explained the differences well:
Notably, while Defendants claim that SB 14 was modeled after the Indiana law, the Indiana law is more generous to voters. Unlike SB 14, it permits the use of any Indiana state-issued or federal ID and contains a nursing home resident exemption. Furthermore, Indiana is more generous in its acceptance of certain expired ID.' Of particular relevance here, Indiana's accommodation of indigents, while requiring an additional trip to the county election office tó claim an exemption, does not require an indigent to actually obtain, or pay any fees associated with, a qualified photo ID. This is significant, as demonstrated in this case. There was also a reference in Crawford, to a “greater public awareness” of the law, which would prompt voters to secure qualified ID, as opposed to a relative dearth of publicity and instruction in Texas.
Veasey v. Perry,
. The law in question was enacted in 1975, after a previous re-registration requirement was struck down as unconstitutional in the early 1970s. A three-judge court eventually .struck down this attempt at purging and reregistration after the Department of Justice objected to the law when Texas became subject to preclearance. See generally Veasey v. Perry,
. In LULAC, the Supreme Court also noted Texas’s “long, well-documented history of discrimination that has touched upon the rights of African-Americans and Hispanics to register, to vote, or to participate otherwise in the electoral process.” LULAC,
The changes to District 23 undermined the progress of a racial group that has been subject to significant voting-related discrimination and that was becoming increasingly politically active and cohesive .... In essence the State took away the Latinos' opportunity because Latinos were about to exercise it. This bears the mark of intentional discrimination that could give rise to an equal protection violation. Even if we accept the District Court’s finding that the State’s action was taken primarily for political, not racial, reasons, the redrawing of the district lines was damaging to the Latinos in District 23. The State not only made fruitless the Latinos’ mobilization efforts but also acted against those Latinos who were becoming most politically active, dividing them with a district line through the middle of Laredo.
Id. at 439-40,
.One of the dissenting opinions quarrels with the district court’s findings on this issue, but a three-judge panel reviewing Texas’s 1981 redistricting plan reached the same conclusion:
In 1975, Congress extended the special pre-clearance provisions of the Voting Rights Act of 1965 to Texas. This decision was made on the basis of extensive hearings into the history of voting discrimination in the state. Since the pre-clearance provisions were extended to Texas in August of 1975, the Department of Justice has lodged far more objections to governmental actions affecting voting rights in Texas than any other covered state. Between August 15, 1975, and September 18, 1981, the State and its various political sub-divisions received 91 letters of objection. In this same period, no other covered state had more than 50 objections, and only three had more than thirty. The election changes objected to by the Department of Justice include the movement of polling places, proposed annexations, alteration of district lines, and a state-wide purge of voter registration lists.
Seamon v. Upham,
. This partisan motive to suppress votes is not based on which party is in the majority. When asked about the fact that most redistricting and discriminatory laws were enacted under legislatures with a majority who were members of a different party than the current majority, the Plaintiffs' expert, Dr. Burton, agreed. He testified that this fact made his analysis "stronger because it does not matter who is in charge of State politics or the political parties in power in Texas, whether they’re Republicans, Democrats!,] or Martians, every time that African-Americans have, in fact, been perceived to be increasing their ability to vote and participate in the process there has been State legislation to either deny them the vote or at least dilute the vote or make it much more difficult for them to participate on an equal basis as Whites in the State of Texas.”
One of the dissenting opinions claims that we confuse partisanship for racism in our analysis of whether the Legislature acted with a discriminatory intent. Intentions to achieve partisan gain and to racially discriminate are not mutually exclusive. As another of the dissenting opinions points out, acting to preserve legislative power in a partisan manner can also be impermissibly discriminatory. Ketchum v. Byrne,
. Two of the dissenting opinions take issue with our decision on discriminatory intent, in part because this issue can be fraught and divisive. One of the dissenting opinions claims that Congress intended to prevent such divisiveness by ensuring that plaintiffs could sue for discriminatory impact. Congress amended the Voting Rights Act in 19.82 to make it clear
. Section 2 provides in full:
(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 10303(f)(2) of this title, as provided in subsection (b).
(b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.
52 U.S.C. § 10301. We address more fully below how the factors adopted by the Supreme Court in Gingles and the other standards we apply effectuate the language of Section 2.
. These are sometimes also called the "Senate Factors,” as they derive from the Senate Report accompanying the 1982 amendments to the Voting Rights Act. See Gingles,
. See, e.g., League of United Latin Am. Citizens, Council No. 4434 v. Clements, 999 F.2d 831, 850-51 (5th. Cir. 1993) (en banc); Salas v. Sw. Tex. Junior Coll. Dist.,
. See League of Women Voters,
. See also In re Am. Int'l Refinery, Inc.,
. These arguments also address the discomfort expressed by some of the dissenting opinions with how the Gingles factors are applied differently in different cases. As we have noted, the factors are highly fact dependent, as they must be to address different laws, different states with varying histories of official discrimination, and different populations of minority voters.. Such has also been the case with the variances in decisions among the circuit courts to consider challenges to voter ID laws — our decision differs from those of other circuits in part because we are considering "the [strictest [l]aw in the [c]ountry” in a State with a fairly extensive history of official discrimination. See Veasey v. Perry,
Even so, the fact-dependent nature of the Gingles factors does not mean that "[v]irtually any voter regulation” may be struck down under our analysis. See Jones Dissenting Op. at 310. Undoubtedly, challenges to election laws under Section 2 have increased since Shelby County as states have enacted new laws and regulations that must be challenged under Section 2, if at all, because these laws no longer face preclearance. That does not mean that our analysis endangers neutral, nondiscriminatory election laws. As we explain infra, district courts considering these challenges have come to different conclusions based on varying fact patterns and election laws, not always with the result of striking down election laws. Indeed, the United States abandoned its Section 2 discriminatory-effect challenge to a voter ID law after the North Carolina legislature added a reasonable impediment exception to the law. See N.C. State Conference of the NAACP v. McCrory, - F. Supp. 3d -, -, No. 1:13CV658,
. Furthermore, Wisconsin’s law, considered in Frank, allows for more forms of identification than does SB 14. The district court found SB 14 to be the "[sjtrictest [l]aw in the [cjountry” based on comparisons to other states’ voter ID laws and on the characterization of SB 14 by one of its drafters. Veasey v. Perry,
. One of the dissenting opinions relies heavily on Crawford in discussing both discriminatory purpose and impact, essentially using Crawford's endorsement of "preventing voter fraud” as a talisman against objections that SB 14 does not appear even remotely well tailored to suit its stated purposes. While we acknowledge the State’s legitimate interests in this case, Crawford did not deal with either discriminatory intent or effect under Section 2. In Crawford, the Court simply noted the weight of the State’s interests in the First and Fourteenth Amendment balancing analysis, which differs from Section 2's inquiries into discriminatory motive and impact. As noted infra, even Judge Easterbrook and the Seventh Circuit do not subscribe to the dissenting opinions’ views of Crawford's or Frank’s holdings. We likewise decline to read into Crawford the inapposite principle that the State may invidiously discriminate or impermissi-bly disparately burden minorities so long as it articulates "preventing voter fraud” as one purpose of a restrictive law.
. Specifically, the Seventh Circuit noted the distinction between the general facial challenge in Frank and the more particular as-applied challenge in Frank IF.
The argument plaintiffs now present is different. Instead of saying that inconvenience for some voters means that no one needs photo ID, plaintiffs contend that high hurdles for some persons eligible to vote entitle those particular persons to relief. Plaintiffs' approach is potentially sound if even a single person eligible to vote is unable to get acceptable photo ID with reasonable effort. The right to vote is personal and is not defeated by the fact that 99% of other people can secure the necessary credentials easily. Plaintiffs now accept the propriety of requiring photo ID from persons who already have or can get it with reasonable effort, while endeavoring to protect the voting rights of those who encounter high hurdles. This is compatible with our opinion and mandate, just as it is compatible with Crawford.
Frank II,
, One of the dissenting opinions proposes a different analysis to apply in Section 2 “results” cases. This opinion asserts that the test should be "simple and consistent,” meaning that we should ignore the Supreme Court’s guidance in Gingles, Congress's intention as expressed in the Senate Factors, and, in practice, that we should require outright denial of
. While the State's expert criticized this calculation, he conceded that the methodology used to derive this figure was well accepted. Nonetheless, he attempted to challenge the No-Match List because 21,731 people on the No-Match List later voted in the spring 2014 election. We accept the well-reasoned logic of the district court, which noted that some of those 21,731 who voted may have done so by mail, which does not require SB 14 ID, while others may have obtained SB 14 ID between the calculation of the No-Match List and the spring 2014 election. Veasey v. Perry,
. We recognize that the terms used to describe different racial or ethnic groups inoffensively can themselves be the subject of dispute. Where we quote a witness or the district court or where we discuss a witness’s testimony, we use their terms. For our part, because we are a reviewing court, while recognizing the imperfections of these terms, we use the terms used by the district court and the parties to refer to the three groups that were the subject of the evidence in this case: Anglos (used to describe non-Hispanic Caucasians), Hispanics, and African Americans. We also recognize that many Texans identify with more than one racial or ethnic group and some Texans do not fall into any of these three groups; we address the evidence and arguments as they were presented by the parties.
. Before the panel, the State attacked the entirety of the district court's findings on the grounds that the lower court did not distinguish between SB 14’s statutory provisions and the Department of Public Safety's implementing regulations. Although an issue raised for the first time on appeal, like this one, is waived, Fruge v. Amerisure Mut. Ins. Co.,
. Other challenges brought by the State include its argument that that the analyses relied upon by the district court are unreliable because one source of data — the State’s voter registration database — does not list the race or ethnicity of voters. The State contends that Plaintiffs' expert should have relied instead on data provided by the Department of Public Safety (“DPS”). The district court rightly rejected this argument. The DPS database did not allow registrants to identify themselves as "Hispanic” until May 2010. As the Texas Director of Elections conceded, the number of Hispanic registered voters is "exponentially higher” than the DPS records would suggest. We cannot fault the district court for refusing to rely on inaccurate data, particularly in light of the State’s failure to maintain accurate data.
Additionally, the State suggests that conveying the disparity in ID possession in comparative percentages is misleading. See Frank,
Finally, the State argues for the first time on appeal that there is no disparate impact where, as here, the gross number of Anglos without SB 14 ID — 296,156 people — almost totals the number of African-American, Hispanic, and "other” voters without SB 14 ID— 312,314 people. Courts have never required the gross number of affected minority voters to exceed the gross number of affected Anglo voters. See, e.g., League of Women Voters,
. These problematic predictions included inquiries like: "What types of candidates have white and minority voters supported together in the past and will those trends continue?” Strickland,
. Additionally, we note that this court and many others have upheld the constitutional validity of the Section 2 results test. See, e.g., Bush v. Vera,
. SB 14 exempts certain disabled persons from its photo ID requirements, if they submit an application to be exempted with written documentation, including: (1) "a statement in a form prescribed by the secretary of state that the applicant does not have a form of identification acceptable” under SB 14's codified provision, Tex. Elec. Code § 63.0101, and (2) documentation from either "the United States Social Security Administration evidencing the applicant has been determined to have a disability,” or documentation "from the United States Department of Veterans Affairs evidencing the applicant has a disability rating of at least 50 percent.” Tex. Elec. Code § 13.002(1). The district court found that Plaintiffs Carrier, Espinosa, Mendez, and Taylor "may qualify for SB 14's disability exemption,” but that "[t]hese Plaintiffs were not made aware of this exemption when they went to DPS or other relevant offices” and that "[a]s of January 15, 2014, only 18 voters were granted a disability exemption in Texas.” Veasey v. Perry,
. Before the panel that initially heard this case, the State made an even bolder claim— that the Plaintiffs "failed to show that SB 14 prevented a single person from voting.” This claim is demonstrably false, as the experiences of Plaintiffs Floyd Carrier and Sammie Louise Bates show, see infra.
. We do not opine on the effect, under Section 2, of other possible absentee balloting arrangements, only on the inadequacy of mail-in voting in these circumstances to mitigate or eliminate the discriminatory impact of SB 14.
. For example, mail-in voting requires obtaining and submitting a correctly filled-out and signed application to the early voting clerk in the voter’s county “on or before the 18th day before election day,” Tex. Elec. Code § 86.008(a), plus receiving an absentee ballot by mail, filling out the ballot correctly, and ensuring the proper state party receives the ballot on or before election day, id. §§ 86.004-.007, 86.008(b).
. These lackluster efforts stand in stark contrast to those of other states whose voter ID laws have thus far passed Section 2 scrutiny. See, e.g., N.C. State Conference of the NAACP v. McCrory, — F. 3d -, ---, No. 1:13CV658,
. The district court cited many examples of Texas’s long history of state-sponsored discrimination. See Veasey v. Perry,
. Of course, the preclearance analysis differs from the Section 2 discriminatory effect analysis. The State had the burden to show it should receive preclearance in Texas v. Holder, whereas the Plaintiffs have the burden to show a discriminatory effect in the analysis we employ here. Cf. Texas v. Holder,
. For the first time in its reply brief before the panel that initially heard this case, the State argued that the district court erred by examining whether race and voting patterns exhibited a correlated, rather than causal, link. We generally do not consider arguments raised for the first time in a reply brief. See Baris v. Sulpicio Lines,
. According to Dr. Ansolabehere’s expert report, 83 to 87% of Anglos of voting age and 84 to 88% of Anglo citizens of voting age in Texas are registered to vote, compared to 65 to 77% of Blacks of voting age and 75 to 80% of Black citizens of voting age, and 50 to 55% of Hispanics of voting age and 75 to 80% of Hispanic citizens of voting age. Likewise, 41.8% of Anglos voted in 2010 compared to 31.3% of Blacks and 22% of Hispanics. In 2012, 64.3% of registered Anglos voted, compared to 45% of registered Blacks and 59.8% of registered Hispanics.
. In full, the exchange between a member of our court at the en banc oral argument and the State’s counsel follows:
JUDGE: "[I]f literacy tests weren't separately prohibited, would a literacy test be invalidated by your proposed equal treatment test?”
STATE'S COUNSEL: "Insofar as literacy tests, you know, first of all, that would obviously be separately banned under — "
JUDGE: "Beside[s] the separate ban.”
STATE'S COUNSEL: “I — I believe insofar as you're putting aside the separate banning, and insofar as you're putting aside a purpose claim, I think you would still ask, 'is this a denial of equal opportunity?' And in that scenario you’d have to show a prima facie case, and it would almost certainly, in the relevant jurisdictions that we’re talking about, have been able to show a voter turnout disparity, ah, particularly, you know, Operation Push v. Mabus would have been another case like this where you had legacy systems in place, and under those legacy systems, there would have been liability.”
. One of the dissenting opinions would require a showing of decreased turnout to prevail on a discriminatory effect claim. This argument is unsupported by case law and ignores the following points. First, such an approach would foreclose the ability to file pre-enforcement challenges, which are particularly important now that preclearance is not required. As the concurring opinion acknowledges, the Supreme Court suggested in Shelby County that courts could "block voting laws from going into effect” through injunctive relief under Section 2. See Shelby Cty.,
. The indigency exception was part of SB 14 when it passed the Senate, but was stripped from the bill in the Texas House. Veasey v. Perry,
. This distinction is akin to the difference between negligence and intent.
. Some of the dissenting opinions argue that the majority opinion holds the Legislature "liable for racial disparities [it] did not create” by failing to show that the statistical disparity in ID possession among different races is caused by a State policy, as opposed to socioeconomic and historical conditions. In fact, as discussed above, the district court found that SB 14 creates a racial disparity by requiring the use of certain IDs to vote that minorities disproportionately lack. Certainly the passage of SB 14 did not cause fewer minorities to possess certain IDs (like driver's licenses or concealed handgun licenses). Rather, the district court found that socioeconomic and historical conditions contributed to this disparity in ID possession, which demonstrates why historical evidence of racism is relevant to the Section 2 analysis. But SB 14 itself caused minorities to disproportionately lack the documentation that is required to vote by dictating that the documents and IDs required would be those that minorities disproportionately lack. We cannot ignore that in passing SB 14, the Legislature carefully selected the types of IDs that would be required to vote. In doing so, the Legislature selected IDs that minorities disproportionately do not possess and excluded IDs that minorities possess in greater numbers, without providing sufficient justification for those choices. The fact that this occurred on a landscape where minorities are less likely to possess certain forms of ID or be able to obtain those IDs, at least in part as a result of past instances of State-sponsored discrimination, does not absolve the Legislature of responsibility. Accordingly, the district court's conclusion that SB 14 created racial disparities in the possession of IDs required to vote is supported by the record.’
. The Veasey Plaintiffs include: Marc Veas-ey, Jane Hamilton, Sergio Deleon, Floyd Carrier, Anna Burns, Michael Montez Penny Pope, Oscar Ortiz, Koby Ozias, League of United Latin American Citizens, John Mellor-Crummey, Ken Gandy, Gordon Benjamin, and Evelyn Brickner. No other plaintiff joined in making this allegation.
. Cf. Ray v. United Parcel Serv.,
. Only one plaintiff, Ken Gandy, showed that he was unable to obtain an out-of-state birth certificate due to its cost, see Veasey v. Perry,
. This is somewhat in tension with the Veas-ey Plaintiffs' initial briefing before the panel, which claimed SB 14 was a poll tax based on the fee involved and conceded that "incidental burdens on voters are not taxes,” including ''[incidental costs such as paying for gas to drive to the polls.”
. We do not mean to suggest that a full injunction is never available as a remedy for a discriminatory effect finding. However, given the severability clause in this statute and the Supreme Court’s cautions to give deference to legislative determinations even when some violation is found, the district court must examine a full range of potential remedies. Perez,
. We have held that Section 2 redistricting cases provide an appropriate source of guidance for district courts attempting to craft remedies for Section 2 voter registration violations. See Operation Push,
. The severability clause reads:
Every provision in this Act and every application of the provisions in this Act are severable from each other. If any application of any provision in this Act to any person or group of persons or circumstances is found by a court to be invalid, the remainder of this Act and the application of the Act’s provisions to all other persons and circumstances may not be affected. All constitutionally valid applications of this Act shall be severed from any applications that a court finds to be invalid, leaving the valid applications in force, because it is the legislature’s intent and priority that the valid applications be allowed to stand alone. Even if a reviewing court finds a provision of this Act invalid in a large or substantial fraction of relevant cases, the remaining valid applications shall be severed and allowed to remain in force.
Tex. Elec. Code § 64.012 historical note (West Supp. 2014) [Act of May 16, 2011, 82d Leg., R.S., ch. 123, § 25, 2011 Tex. Gen. Laws 619, 625].
. See N.C. Gen. Stat. §§ 163-82.8(e), 163-166.13(c)(2), 163-166.15, 163-182.1B (2015).
. See Ind. Code § 3-11.7-5-2.5 (2015).
. As discussed above, the Supreme Court has also noted the time constraints of this case in light of the scheduled elections in November of 2016. See Veasey v. Abbott,
. While the registration card does not contain a photo, it is a more secure document than a bank statement or electric bill and, presumably, one not as easily obtained by another person. It is sent in a nondiscriminatory fashion, free of charge, to each registered voter and therefore avoids any cost issues.
Concurrence Opinion
joined by GREGG COSTA, Circuit Judge, concurring:
As the Supreme Court has reminded, though great progress has been, made,
After a nine-day trial that saw the testimony of over forty witnesses, half of them experts, the district court concluded in a nearly one-hundred-and-fifty-page opinion that SB 14 — stricter than other voter ID laws that courts have upheld, including those after which Texas’s law was ostensibly modeled
I.
As the majority opinion explains, our adoption of the Fourth and Sixth Circuits’ two-part test places Section 2’s totality-of-circumstances inquiry in a vote-denial framework that adheres to the text of Section 2, 52 U.S.C. § 10301, and the Supreme Court’s guidance in Gingles,
The Senate factors have roots' in this court, see Zimmer v. McKeithen,
II.
Today’s outcome is also not inconsistent with Crawford v. Marion County Election Board,
Nor does our decision contravene League of United Latin American Citizens v. Clements,
The district court also heard from witnesses who were unable to vote because they lacked the required forms of ID, from some who struggled to obtain the required forms of ID or documents needed to obtain them, and from others who help disadvantaged individuals obtain photo IDs and attested to the difficulties those individuals face in doing so. See id. at 667-76. The court further credited expert testimony that SB 14 “would almost certainly decrease voter turnout, particularly among minorities,” by imposing burdens that fall more heavily on African-Americans and Hispanics. Id. at 655-56; see also id. at 664-65.
It is also mistaken to suggest that the majority opinion conflicts with the Ninth Circuit’s decision in Gonzalez,
The Ninth Circuit of course said that “proof of ‘causal connection between the challenged voting practice and a prohibited discriminatory result’ is crucial” to a Sec-. tion 2 challenge. Id. at 405 (majority opinion) (quoting Smith,
For this reason among others, we should not be guided by Frank v. Walker,
This reasoning ignores that Section 2 prohibits voting procedures “imposed or applied ... in a manner which results in a denial or abridgement of the right ... to vote.” 52 U.S.C. § 10301(a) (emphasis added). Indeed, the opinion does not mention “abridgement” aside from a single quotation of the statute. Judge Easterbrook’s “equal-treatment” gloss — which he did not explain aside from saying that is “how [the statute] reads,” Frank,
Judge Easterbrook further seems to have reasoned that the only discrimination relevant to Section 2’s totality-of-the-circumstances inquiry is of the state-sponsored variety. See Frank,
III.
Two related final points bear mentioning. First, Judge Easterbrook warned that the Frank plaintiffs’ interpretation of Section 2 could “sweep[ ] away almost all registration and voting rules.” Frank,
There is a difference between making voting harder in ways that interact with historical and social conditions to disproportionately burden minorities and making voting easier in ways that may not benefit all demographies equally (like motor-voter). The former can be characterized as “abridging” the right to vote; the latter cannot. Laws that neither “eliminate opportunities that racial minorities disproportionately use, [n]or impose a requirement that they disproportionately lack,”
Second, we should not shy away from inquiring into such details, or from judging laws in their operative contexts, merely because it will require courts to draw fact-specific and even close distinctions. States have reacted to the Supreme Court’s decisions in Crawford and Shelby County by introducing a range of voting regulations
Cognizant that the Supreme Court may itself choose to refine Section 2 law in light of Gingles, Crawford, and Shelby County, or that Congress may revisit the topic as other affected groüps, such as young people, the working poor, and the elderly mobilize, I concur in the majority opinion, having offered these respectful responses to arguments made in dissent.
. See Texas v. Holder,
. The Operation Push plaintiffs’ arguments mirror some in this case. Compare Operation Push,
. To the extent the dissent argues that League of United Latin American Citizens v. Clements forecloses consideration of the "tenuousness” factor, that case distinguished the “weight” of the state’s interest "from the conventional Zimmer [Senate] factor of tenuousness.”
. The dissent cites law review articles for the propositions that studies collected therein show no effect from voter ID laws on turnout, or even show increased turnout. Those collected studies, which mostly date from 2009 and earlier, did not involve SB 14 and do not make the district court’s acceptance of expert testimony that Texas's law likely will depress turnout clearly erroneous. In any event, scholarship on the effects of voter ID laws is far from uniform. See, e.g., Zoltán Hajnal, et al., Voter Identification Laws and the Suppression of Minority Votes, at 15 (February 2016), http://pages.ucsd.edu/=zhajnal/page5/
. Scholars have made the same point. See Tokaji, supra, at 475-76 ("Existing empirical methods are simply not up to the task of establishing the effect of a particular practice on turnout, let alone on turnout by particular subgroups, with any degree of precision.”); Samuel Issacharoff, Ballot Bedlam, 64 Duke L.J. 1363, 1383 (2015) (“There has not been enough time to test the observations against normal fluctuations in turnout ... and other confounding political factors.”); Michael J. Pitts, Empirically Measuring the Impact of Photo ID Over Time and Its Impact on Women, 48 Ind. L. Rev. 605, 606 (2015) ("[I]t can be difficult to determine the amount of actual disenfranchisement caused by photo identification laws.”); Gilbert, supra, at 750 ("Gathering relevant data and designing conclusive tests presents many challenges.”).
. The district judge, contrastingly to this case, noted that the record did not contain "adequate evidence on any of [the Senate] factors to enable an appropriate evaluation.” Gonzalez,
. Because Texas selected the requisite voter qualifications and the manner of implementing them, which the trial court found interact with the effects of discrimination to cause racial disparities in opportunity to vote, considering the effects of private discrimination among other factors does not violate the Supreme Court’s warning against imposing disparate-impact liability when “the plaintiff cannot point to a defendant's policy or policies causing [a statistical] disparity.’’ Inclusive Cmties.,
. Tokaji, supra, at 475.
. See Veasey,
. Compare Veasey,
.North Carolina’s ID requirement, for example, had a two-year "soft rollout,” and the state's more extensive educational efforts included mailings offering help to voters whom a study indicated might not have qualifying ID. See McCrory, - F. Supp. 3d at -- -,
. I also disagree with the opposite criticism that this interbranch engagement ameliorates too little, though that argument is contributory. See Richard L. Hasen, Softening Voter ID Laws Through Litigation: Is it Enough?, Wisc. L. Rev. Forward (forthcoming 2016), http:// papers.ssrn.com/sol3/papers.cfm?abstract_ id=2743946 .(with apologies to Professor Ha-sen for my citation of his draft version).
Concurrence Opinion
joined by E. GRADY JOLLY, JERRY E. SMITH, EDITH BROWN CLEMENT, and PRISCILLA R. OWEN, concurring in part and dissenting in part:
We dissent.
No one doubts our unwavering duty to enforce antidiscrimination law. But in this media-driven and hyperbolic era, the discharge of that duty requires the courage to distinguish between invidious motivation and shadows. The ill-conceived, misguided, and unsupported majority opinion shuns discernment. Because of definitive Supreme Court authority, no comparable federal court precedent in over forty years has found a state legislative act motivated by purposeful racial discrimination. Even more telling, the multi-thousand page record yields not a trace, much less a legitimate inference, of racial bias by the Texas Legislature. Indeed, why would a racially biased legislature have provided for a cost-free election ID card to assist poor registered voters — of all races — who might not have drivers’ licenses? Yet the majority emulates the clever capacity of Area 51 alien enthusiasts who, lacking any real evidence, espied a vast but clandestine government conspiracy to conceal the “truth.”
Because inflammatory and unsupportable charges of racist motivation poison
I. Background
Three points must be highlighted at the outset, with further discussion to follow: the true extent of the legislative process leading to passage of a photo voter ID law; the catalytic effect of the Supreme Court’s decision approving these IDs; and the impact of the law’s requirements on all races.
First, SB 14 was enacted in the 2011 biennial legislative session after similar bills requiring photo voter ID had failed in three previous sessions. For six years, opponents had successfully stalled measures requiring proof of a voter’s identity, not just a piece of paper from the County Registrar’s office or a mere affidavit of “lost voter certificate.” For every shortcut the majority employed, to finally pass SB 14, an equal and opposite blocking tactic had succeeded in earlier legislative sessions.
Second, the campaign for stronger voter ID laws was encouraged by Crawford v. Marion County Election Board,
Third, the range of qualifying SB 14 IDs, while narrower than that in some similar ID laws, poses no obstacle to voting for at least 95.5% of all Texas voters who have unexpired (or no later than 60 days past expiry) driver’s licenses, Texas personal identification cards, military IDs with a photo, United States passports, United States citizenship certificates with a photo, or licenses to carry a handgun. For those who lack such IDs, the law offers a cost-free Election Identification Card (“EIC”) obtainable at state DMV offices (like the free card available in Indiana). Photo voter IDs are not required for elderly and disabled voters, as they may vote with mail-in ballots.
At trial, the alleged adverse racial impact of SB 14 was derived from statistical estimates of the relative numbers of Anglo, Black, and Hispanic voters who “do not possess SB14-compliant IDs.” That is to say, of the 4.5% who may lack qualifying IDs, a disproportionate number are Black and Hispanic voters. Still, approximately the same number of Anglo registered voters (approx. 296,000) as the total of Black (approx. 128,000) and Hispanic (approx. 175,000) voters lack the requisite IDs. Put otherwise, approximately 2% of Anglo, 5.9% of Hispanic and 8.1% of Black voters comprise the 4.5% who lack SB 14 IDs but could vote with EICs; the law poses no obstacle for over 90% of minority voters.
Despite extraordinary efforts to find voters “disenfranchised” by SB 14, the DOJ could not uncover any, and no representative of the plaintiff organizations found any of their members unable to vote because of SB 14. Three plaintiffs claimed they could not vote in person under SB 14, but two of those qualified for ballots by mail. The plaintiffs’ ease thus turned on the extent to which it could be estimated that those who do not possess SB 14 IDs would find it difficult to acquire EICs. It was assumed that the 4.5% overwhelmingly include the poor (of all races). There was expert testimony, unsupported by any
II. The Majority’s Erroneous Discussion of Discriminatory Intent
SB 14 is a facially neutral law of general applicability, whose photo ID requirement poses no obstacle to the overwhelming majority of registered Texas voters. The law has a racially disparate impact upon a subset of minority voters. But there is “no smoking gun,” not even code words that suggest discriminatory intent in the thousands of pages of legislative documents and deposition transcripts that the district court compelled the state to produce. The majority entirely ignores the total absence of direct evidence and, moreover, has to exclude (by force of precedent) the evidence most heavily relied on by the district court. Still, the majority finds “more than a scintilla of evidence” that could allow the district court on remand to condemn the law as, at least in part, racially motivated. I fully agree with Judge Clement’s application of the Arlington Heights factors and will not repeat the discussion in her separate dissent. My additional disagreements are two-fold. First, the majority fails to follow the totality of Supreme Court precedents pertaining to the interpretation of legislative intent.
A. Applicable Legal Principles
“[OJfficial action will not be held unconstitutional solely because it results in a racially disproportionate impact .... Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,
Arlington Heights’s discourse on proving discriminatory legislative intent does not exist in a vacuum. There, the Court upheld a zoning board decision that prevented the construction of a low-income housing project in a Chicago suburb. The facially neutral zoning order had a discriminatory impact on minorities who were more likely to inhabit the project. The Court attempted to catalog how a legislative decision, and the steps leading to it, might display an impermissible motive. Notably, in each case cited to exemplify its listed factors, discriminatory motive could be easily inferred. A county closed public (heavily minority) schools while private segregated schools received financial support.
Nothing in Arlington Heights suggests that the Court’s listing of relevant factors licenses courts to string together bits of circumstantial evidence that wholly lack racial content and then undo any law with an incidental disparate impact. In Arlington Heights, the Court found no basis for doing so.
Arlington Heights followed Washington v. Davis, in which the Court held that purposeful discrimination is required to establish Equal Protection violations. Despite evidence that four times more Blacks than Whites failed the District of Columbia’s verbal proficiency test for police applicants,
Critical for this case is the Court’s conclusion in Washington v. Davis'.
A rule that a statute designed to serve neutral ends is nevertheless invalid, absent compelling justification, if in practice it benefits or burdens one race more than another would be far-reaching and would raise serious questions about, and perhaps invalidate, a whole .range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white.
Id. at 248,
Two years after Arlington Heights, the Court rejected inferring discrimination against women in a Massachusetts law that conferred an absolute lifetime state employment preference for veterans. Pers. Adm’r of Mass. v. Feeney,
Significantly, the Court rebuffed three arguments reminiscent of contentions advanced in this case to support a finding of discriminatory purpose. First, even though the military may have historically discriminated against women, “the history of discrimination against women in the military is not on trial in this case.” Id. at 278,
Second, the Court held, discriminatory purpose:
implies more than intent as volition or intent as awareness of consequences .... It implies that the decisionmaker ... selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group. Yet nothing in the record demonstrated that this preference for veterans was originally devised or subsequently reenacted because it would accomplish the collateral goal of keeping women in a stereotypic and predefined place in the Massachusetts Civil Service.
Id. at 279,
Third, the Court rejected the plaintiffs’ complaint that the law was excessively broad, unfair, and controversial with a firm reminder that “the Fourteenth Amendment ‘cannot be made a refuge from ill-advised laws.’ ” Id. at 281,
In a footnote, the Court acknowledged the possibility that a strong inference of discrimination- could perhaps be drawn from a stark sex-based impact, but the Court cautioned that
[i]n this inquiry — made as it is under the Constitution — an inference is a working tool, not a synonym for proof. When, as here, the impact is essentially an unavoidable consequence of a legislative policy that has in itself always been deemed to be legitimate, and when, as here, the statutory history and all of the available evidence affirmatively demonstrate the opposite, the inference simply fails to ripen into proof.
Id. at 279 n.25,
The case before us falls comfortably in line with Arlington Heights, Washington v. Davis, and Feeney.
The majority ignores the foregoing similarities between this case and the governing trio of Supreme Court authorities. In fact, following this trio, no comparable* federal court decision in forty years has found that any facially neutral state law was passed with discriminatory purpose.
But even if there were merit in the majority’s inadequate reading of the Supreme Court’s decisions, the “proof’ adduced in support of the majority opinion is nonexistent.
B. Record Analysis
The following section tracks each of the alleged “facts” from which the majority opinion draws inferences of discriminatory intent.
1. “the record does not contain direct evidence..
As the majority acknowledges, the record is barren of any “direct evidence that the Texas Legislature passed SB 14 with a racially invidious purpose.” After making this observation, the court quickly pivots to cataloguing various pieces of circumstantial evidence, but the majority fails to mention that the plaintiffs unearthed no direct evidence of discriminatory intent even after they were granted wide-ranging and invasive discovery into potentially privileged
This is not to say that circumstantial evidence of intent may be not used in proving intentional discrimination, Arlington Heights,
2. Quoting Senator Fraser as “knowing that the law would be subject to preclearance” and Mr. Hebert, Lt. Gov. Dewhurst’s General Counsel, on talking points to senators, with implication these could be construed as masks for racist motives
To the majority, “[t]here is evidence that the proponents of SB 14 were careful about what they said and wrote about the purposes of SB 14, knowing it would be challenged during the preclearance process under the Voting Rights Act.” For this proposition, they highlight a statement by Senator Fraser, one of SB 14’s authors, who testified that “the public legislative record would either go to the Department of Justice or a three-judge panel as a part of the [Voting Rights Act] Section 5 review process.” Because Senator Fraser was “aware that everything that [he] was saying was part of a public record,” the majority imply, it is unsurprising that no direct evidence of discrimination was found in the unprecedented legislative discovery.
The district court did not rely on Fraser’s statements to explain away the lack of a “smoking gun” in the legislative record or discovery. See Veasey v. Perry,
Senator Fraser’s deposition excerpts were read into the record by the State during the Veasey trial. The majority opinion quotes from the plaintiffs “cross-examination” portion. When asked if it was his belief “that the public legislative record would either go to the Department of Justice or a three-judge panel as part of the Section 5 review process,” Senator Fraser testified that he “did believe it would go one of those two places.” Senator Fraser was then asked if this made him consider “what sort of statements [he] made on the Senate Floor?” Senator Fraser did not respond that he was especially careful in his floor statements about SB 14 or anything even close to that. Instead, he simply responded that he “was aware that everything [he] was saying was part of the public record.”
Senator Fraser’s testimony does not support the inference that SB 14 proponents were unusually careful about what they wrote and said. Senator Fraser’s awareness that the public legislative record would be scrutinized by the Justice Department or a three-judge court under the preclearance process is a statement of fact. Between 1975 and 2013, any change
Senator Fraser’s statement that he was aware that his Senate Floor statements would be part of the public record is also a fact. The legislative record is a matter of public record under the Texas Constitution. See Tex. Const, art. Ill, § 12(a). The Texas Senate Staff Services office makes the audio recordings of all Senate Floor proceedings available to the public'free of charge.
Most importantly, however, the facts conveyed by Senator Fraser are not probative about why the unprecedented discovery into the private correspondence and documents of SB 14 proponents turned up no evidence of discriminatory intent. Senator Fraser’s testimony deals with public records and floor statements. It says nothing about why SB 14 proponents would have censored themselves 'privately. Based on Arlington Heights, no one could have predicted a federal court would order such unprecedented discovery from Senator Fraser or the Legislature.
The majority also emphasizes a piece of deposition testimony by Bryan Hebert, the deputy general counsel for the Lt. Governor, that he sent an email reminding senators to emphasize the “detection and deterrence of fraud and protecting public confidence in elections as the goal of SB 14.”
Once again, the district court did not rely on this statement of Mr. Hebert. See Veasey v. Perry,
Hebert’s statement is not probative of why there would be no evidence turned up in the private legislative discovery. Hebert’s statement merely urges the use of talking points in Senate Floor speeches. Politicians emphasize and reemphasize talking points because they are effective, not because they are seeking to cover up ulterior motives. See Citizens United v. FEC,
3. Legislators were “aware” of racial disparate impact
The majority opinion also contends that SB 14 proponents were aware of the disproportionate impact it would have on minority voters. The majority relies on three statements. First, in his deposition, Representative Todd Smith, a proponent of SB 14 in the Texas House of Representatives, was asked if he recalled the conclusions of studies he read about the effect of voter ID laws on minorities. Smith testified that he did not recall the conclusions, but that “there’s a study for every conclusion that you want to reach.” Smith then more or less volunteered that, in his opinion, it was “common sense” that “the people that do not have photo IDs [are] more likely to be
These three statements were the universe relied upon by the district court for the proposition that it was “clear that the legislature knew that minorities would be most affected by the voter ID law.” Veasey v. Perry,
The majority opinion uses the “common sense” opinion of a member of the Texas House of Representatives and the “suspicions” of the Lt. Governor’s deputy general counsel to leap to the conclusion that “the drafters and proponents of SB 14 were aware of the likely disproportionate effect of the law on minorities.” Even if these statements were enough to imply knowledge on the part of the entire Texas Legislature, however, awareness of the disparate impact of a law does not prove a legislature’s intent to discriminate. Feeney,
L Senator Fraser believes the Voting Rights Act has outlived its useful life; Senator Fraser “not advised” about possible disparate impact; Proponents have “largely refused to explain the rejection of ‘ameliorative’ amendments,” an attitude that was “out of character for sponsors of major bills”
Senator Fraser indeed testified at his deposition that he believed the Voting Rights Act had “outlived its useful life”; the district court did not rely on this statement, and with good reason, too, since it has no probative value. Nowhere in his deposition did Senator Fraser state that SB 14 sought to defy the Voting Rights Act because of the law’s perceived obsolescence. And it is odd to hold up his personal opinion of the Act’s obsolescence for an inference of purposeful discrimination when it is, in part, shared by a majority of the Supreme Court. See Shelby Cty.,
Evidence that Senator Fraser answered questions about SB 14’s disparate impact with “I am not advised” is also not probative of discriminatory intent. Senator Fraser was asked on the Senate floor if the “elimination of government documents as a form- of ID [will] disproportionately affect African Americans and Hispanics?” He responded, “I am not advised,” but he also testified that such an answer merely indicates that the speaker does “not have suf
The district court relied on a statement from the bill’s opponent, Senator Ellis, that answering “I am not advised” was “out of character” for the sponsor of a major bill, which indicated to him that Senator Fraser “drew the straw.” See Veasey v. Perry,
The majority states that “[a]nother senator [then-Senator Dan Patrick] admitted at his deposition that he and other proponents of SB 14 voted to table numerous amendments meant to expand the types of accepted IDs, expand the operating hours of DPS stations issuing voter IDs, delay implementation of SB 14 until an impact study had been completed, and other ameliorative measures.” This is a fact; there is no doubt that a number of amendments were rejected and that the bill’s opponents generally felt that these rejections were inadequately explained. See id. at 646-47. But it is incorrect to connect the rejection of amendments with Senator Ellis’s “out of character for major bills” comment. Senator Ellis’s comment referred only to.Senator Fraser’s “I am not advised” answers.
5. Dr. Vernon Burton ties excuse of preventing voter fraud to “Texas’s history of racial voter suppression”
The majority notes that Dr. Vernon Burton ties the excuse of preventing voter fraud to Texas’s history of racial voter suppression. In both his expert report and testimony, he specifically focused on; (1) all-White primaries; (2) secret ballots; (3) poll taxes; and (4) re-registration and voter purges. In each instance, the majority notes, Burton testified that the laws’ stated rationale was to prevent voter fraud. From this, the majority contends it would be possible to infer the Texas Legislature’s alleged discriminatory intent in enacting SB 14 half a century later because the stated rationale was also the prevention of voter fraud.
This .recitation stands at odds with the rest of the majority’s opinion, which expressly disavows the district court’s reliance on “Texas’s use of all-[W]hite primaries from 1895-1944, literacy tests and secret ballots from 1905-1970, and poll taxes from 1902-1966” because “the district court relied too heavily on the evidence of State-sponsored discrimination dating back hundreds .of years.” As for the re-registration and voter purges, Dr. Burton’s expert report and testimony indicate these refer to the Texas Legislature’s passing a re-registration law in 1966 that was found unconstitutional in 1971
6. “Radical departures from normal legislative process” that were “virtually unprecedented”
The majority claims that “SB 14 was subject to numerous and radical procedural departures” that were “virtually unprecedented.” The majority has no support, except the district court’s opinion, for its conclusion. The district court, in turn, relies only on the speculations of opposition legislators, many of whom are plaintiffs in this case, as to the procedural motivations underlying SB 14’s passage. See Veasey v. Perry,
Most of the district court’s pre-2011 legislative history citations are to public websites that show only the results of votes, not to the record or expert reports that chronicle the drama behind those results. See, e.g., id. at 645-46 nn.71-77. The entire story appears from expert reports offered for the plaintiffs (Drs. Lichtman and Davidson) and the testimony of Lt. Gov. Dewhurst, which are necessary to understand the 2011 actions taken by the Legislature.
First, a bit of background in how the Texas Senate considers legislation is necessary. At the start of the session, the Senate adopts by majority vote rules that will govern its business during the session. These rules are usually rolled over from the prior session and then tweaked accordingly. One rule that has been consistently adopted since World War II is the “two-thirds rule.” Under ordinary rules, the Senate can only consider legislation in the order in which it appears on the calendar. However, two-thirds of senators present and voting may vote to suspend the usual order of business and consider other business out of turn. In practice, there is basically a two-thirds requirement to consider bills in the Texas Senate, analogous to the cloture rule in the U.S. Senate. This occurs because of “blocker bills.” A blocker bill is a routine or non-controversial bill, such as one dealing with landscaping at the Capitol or the decorations in the Senate Chamber, that is placed first on the agenda. It is intentionally almost never passed. To get around the blocker bill and consider legislation following it on the agenda, a two-thirds vote is required to suspend the usual order of business. After receiving the required two-thirds vote, the legislation can be passed by a majority vote. In a chamber with 31 senators, 11 can block under the two-thirds rule. As will be discussed, there are various ways around the two-thirds rule, many of which are commonly employed.
Beginning before the 2005 session of the Texas Legislature, opinion polls showed that a large majority of Texans supported photo voter ID laws. Further, Texas officials believed that some Texans simply did not vote because they did not have confidence in the system or that their votes
Against this backdrop, the Legislature proposed the first iteration of a voter ID bill in 2005. The majority ignores it, and the district court says only that “[t]he bill, after being reported out of the Elections Committee, passed the House but died in the Senate Committee on State Affairs.” Id. .at 645. What actually happened is that after the bill passed the Texas House, proponents in the Senate attached it to another elections bill in order to avoid the two-thirds rule in the Senate, which is a common legislative maneuver on related bills. Senator Rodney Ellis vowed to filibuster the combined bill, and even came to the Senate Chamber wearing tennis shoes and a catheter to comply with Senate prohibitions against sitting and restroom breaks during floor speeches. Before his filibuster could begin, however, opposition Senator Leticia Van de Putte invoked a germaneness rule and the combined bill was withdrawn. The voter ID bill was then sent to a House-Senate conference committee, but it was delayed behind several other important measures and could not be considered before the end of the session.
Voter ID was reintroduced in the 2007 legislative session and passed the Texas House. Regarding the Senate, the majority says nothing and the district court says only that it was reported out of committee and “[wjhile the rules were initially suspended to take it up out of order for second reading, the vote was reconsidered and the measure failed. The rules were not suspended, at which point the bill died.” Id. at 646.
Eleven opponents of the bill — all Democrats^ — -had pledged going into the session, as was their legislative prerogative, to block any voter ID bill under the two-thirds rule even though Lt. Governor De-whurst had attempted to reach a compromise with them before the session on the substance of the bill. However, opposition Senator Mario Gallegos was having complications from a liver transplant, which meant that Democrat opponents lacked the votes to block the bill in his absence. Against the advice of his doctors, Gallegos returned to Austin for the session specifically so he could vote against the voter ID bill. Senator Bob Deuell, a Republican and proponent of the bill, paid to have a medical supply company put a hospital bed in a room adjacent to the Senate chamber for Gallegos. Lt. Gov. David Dewhurst, also a Republican, agreed to give Gallegos 24-hour notice before any vote on the voter ID bill would occur.
Meanwhile, Democrat Senator Carlos Uresti became bedridden with the flu during the session. He was absent from the floor on May 15, 2007, when Senator Fraser, the voter ID bill’s sponsor, moved to
After the vote had been held and the gavel fell, Democrat Senator Shapleigh moved to verify the vote on the grounds that Senator Whitmire had actually been present for the vote and was improperly skipped. Lt. Governor Dewhurst testified that he accommodated the request because he knew “that this [was] an important bill to the Democrats and to the Republicans,” and he “didn’t want controversy.” He “bent over backwards to respect [Senator Whitmire] and his statement” that he was actually on the floor, so a verification (i.e. second) vote was held. This allowed all 11 opposition senators to vote against it, with Senator Uresti sprinting up the Capitol steps to reach the floor just in time for the vote and Senator Whitmire also returning to the floor. The final vote was 20-11 (just short of two-thirds). No further action was taken on voter ID in the 2007 session after the verification vote failed under the two-thirds rule.
Before the 2009 session, where voter ID would again be on the agenda, Lt. Governor Dewhurst again reached out to Democrats in the Senate who had opposed legislation in 2005 and 2007. This was to no avail, as opponents remained entrenched. At the beginning of the session, to avoid the two-thirds rule that had thwarted legislation in 2007, the Senate adopted a rules change that allowed voter ID legislation to proceed under a simple majority vote instead. The rules change was made by majority vote. Senator Shapleigh raised two points of order objecting to the rules change, but Lt. Governor Dewhurst overruled them “[b]ecause the rules of the Senate permitted a majority of the Sena- . tors to change the Senate rules, so ... [this change] was entirely within the tradition and rules of the Senate.” According to Karina Davis, the Senate Parliamentarian, the Senate has only designated two categories of bills for such special treatment since 1981: redistricting and voter ID. Notably, both of these categories have to do with elections. This makes sense, as such matters cut to the very heart of how a representative democracy will function and concern the “highly political judgments,” Bartlett v. Strickland,
Beginning on March 10, 2009, the Senate held a 23-hour hearing on the proposed bill that lasted until 6 AM the next morning, at which members of the public could testify. At the hearing’s conclusion,
After the 2009 session again ended without a bill’s being passed, voter ID proponents decided that the 2011 session would be different. After repeatedly reaching out to opponents, incorporating some of their amendments/suggestions, and repeatedly being rebuffed by extraordinary legislative maneuvering, proponents decided to pass whatever law they could that was modeled after Indiana’s law that had been upheld by the Supreme Court in Crawford
To that end, Governor Perry designated voter ID legislation as an emergency. He said in February 2010: “I might as well put [the Legislature] on notice today: We’re going to do voter ID in 2011. We can either do it early, or we can do it late. [The Legislature’s] call.” The emergency designation permitted, but did not require, voter ID legislation to be considered during the first 60 days of the 2011 session.
To avoid what happened in 2007, the Senate rolled forward the rule from the 2009 session that allowed voter ID bills to be considered by simple majority rather than two-thirds vote. The majority faults the Legislature for this, but the decision is easily explainable on political grounds— the majority party wanted to avoid the two-thirds rule that had blocked similar legislation in a prior session.
This history thoroughly explains why voter ID legislation as eventually contained in SB 14 — which the majority dismisses as not “a problem of great magnitude” — was considered before what the majority believes are other “pressing matters of great importance to Texas.” In addition, the 2011 bill that eventually turned into SB 14 contained several notable provisions. First, in an effort to combat multiple types of voter fraud, a provision was included that would have addressed voter registration fraud, in addition to just in-person fraud that voter ID laws combat. This provision was removed because the Senate has a one-subject rule that prohibited it from addressing this other type of fraud in SB 14. Next, several provisions in SB 14 were inserted into prior voter ID legislation at the behest of members of the Democrat minority. For example, Senators Gallegos and Shapleigh were concerned about voter ID’s impact on the elderly, so proponents inserted age exemptions into the version of SB 14 that passed the Senate. Additionally, opponents’ concern for the law’s impact on the poor during prior iterations of the bill led soon afterwards to the elimination of charges for ID and underlying documents. Thus, contrary to what the majority asserts, SB 14 was neither unresponsive to the concerns of legislative minorities nor was there a lack of motivation to address other types of fraud besides in-person fraud.
7. Second guessing legislative priorities and why Texas Legislature prioritized remedy for voter fraud without compelling evidence
Ignoring the legislative history of voter ID during three previous legislative sessions, the majority chides the 2011 Legislature for prioritizing SB 14 in a busy session'without — in the majority’s view— sufficient evidence that there is a problem of in-person voter fraud in Texas to justify SB 14. The court critiques that SB 14 did not single out mail-in ballots for a special degree of scrutiny. Of course, as the majority itself rightly notes, “[t]he Legislature is entitled to set whatever priorities it wishes.” These gratuitous observations about legislative prioritization are therefore beside the point as the federal courts lack the expertise or authority to question a legislature’s prioritization of various issues. Recall too, that the Legislature also wanted to address other types of fraud, such as registration fraud, but was prevented from doing so because of one voter ID opponent’s objection based on one-subject rules for legislation.
More significant, however, in Crawford, the Supreme Court flatly rejected the majority’s intimation that record evidence of voter fraud is required -to justify the State’s interest in preventing voter fraud.
8. “While cloaking themselves in the mantle of following Indiana’s voter ID law ... the 'proponents of SB U took out all the ameliorative provisions of the Indiana law”
The majority seeks to resist the import of Crawford by arguing that Texas’s voter ID law is different because it lacks some ameliorative provisions for indigents that were present in Indiana’s law. The majority takes issue, generally, with the Legislature’s rejection of various amendments that would have permitted additional forms of ID to be used and allowed the use of IDs with irregularities. The majority also takes issue, specifically, with the House of Representatives’ removal of Senator Duncan’s amendment, which would have required a provisional ballot to be accepted if the person simultaneously executes an affidavit stating that he or she is indigent and cannot obtain proof of identification without paying the fee. See S.J. of Tex., 82nd Leg., R.S. 137-38 (2011).
Setting aside the fact that the majority’s criticism amounts to second-guessing the policy choices of the state legislature, the fact that the Legislature did not adopt certain ameliorative amendments tells us nothing about why the Legislature so acted. And it certainly provides no basis to infer that the Legislature rejected these various amendments because it, collectively, was motivated by racial animus; this remains true even if legislators knew that some of the proposed amendments would make it easier for indigents to obtain ID.
Even if, notwithstanding Crawford, the presence or absence of an indigency exception is a matter of constitutional significance, SB 14 does contain ameliorative provisions for indigent persons.
9. “Contemporary examples of state-sponsored discrimination”
The'majority asserts that “[t]he circumstantial evidence of discriminatory intent is augmented by contemporary examples of State-sponsored discrimination in the record.” It then goes on to cite several examples, taken from the district court’s opinion, of alleged recent discrimination by Texas against minorities. This recitation is riddled with errors and on examination, disintegrates into forty-plus year old actions.
The majority first claims that “as late as 1975, Texas attempted to suppress minority voting through purging the voter rolls, after its former poll tax and re-registration requirements were ruled unconstitutional.” (citing Veasey v. Perry,
In its next attempt to find recent examples of intentional discrimination on the part of Texas, the majority credits the district court’s statement that “[i]n every redistricting cycle since 1970, Texas has been found to have violated the VRA with racially gerrymandered districts.” (quoting Veasey v. Perry,
The majority next faults Texas for the Department of Justice’s objection under preclearance to at least one district in each of Texas’s redistricting plans between 1980 and the present. To the extent this unattributed statement is accurate, this is not probative of the legislature’s intent to discriminate against minorities in 2011. Pre-clearance involved a “nonretrogression” standard, see Beer v. United States,
In short, the majority’s “contemporary examples” about Texas’s State-sponsored discrimination are neither contemporary nor probative.
10. Many, “shifting” rationales for SB U
The majority also criticizes the Texas Legislature because legislators allegedly proffered various, “shifting” rationales for the law. Citing to the district court’s opinion, the majority states that the reasons for the law “shifted as they were challenged or disproven by opponents.” Of course, “legislators and administrators are properly concerned with balancing numerous competing considerations,” Arlington Heights,
The majority’s contention that the legislators shifted between these purposes when the rationales were “challenged or disproven by opponents,” similarly proves too much. By this statement, the majority, like the district court, presumably means that the Legislature did not, in its view, provide enough evidence to support its proffered interests in the face of oppo
11. All legislative measures have conspired to work against African-American voters
Dr. Burton opined that, no matter the party in power, political interests have always worked to deny African-Americans the right to vote: “every time that African-. Americans have, in fact, been perceived to be increasing their ability to vote and participate in the process there has been State legislation to either deny them the vote or at least dilute the vote or make it much more difficult for them to participate on an equal basis as Whites in the State of Texas.”
This conclusion is belied, however, by materials that Dr. Burton himself cites. For instance, the Supreme Court found that Democratic-led redistricting in the 1990s led to racial gerrymanders favoring African-American and Hispanic Congressional candidates. See Bush v. Vera,
12. “Seismic demographic shift” spurred action by Republicans “currently in power”
The legislative history recited above shows that the struggle over SB 14 centered on partisanship, not race. Partisanship, however, is not racism, nor is it a proxy for racism on this record. The majority, however, connects “extraordinary procedural measures accompanying the passage of SB 14 to a ‘seismic demographic shift,’ ” and suggests that the Republicans in power could gain a partisan advantage through a voter ID law. But to repeat: even the district court acknowledged that a photo voter ID requirement had wide multiracial, bipartisan public support.
Indeed, the Supreme Court in Crawford specifically held that partisanship in Indiana’s voter ID law, also passed on a straight party-line basis, could not defeat the law’s purposes in deterring fraud.
For all these reasons, the weak, or unsupported inferences claimed by the majority are contradicted by the overwhelming evidence from the complete record that negated any racially discriminatory purpose behind SB 14. SB 14 may or may not be the best approach to protecting the integrity of in-person voting, but it is the approach that succeeded after more than six years of intransigent and uncompromising partisan opposition. The law reflects party politics, not racism, and the majority of this court — in their hearts— know this. See generally Samuel Issacharoff, Ballot Bedlam, 64 DUKE L.J. 1363, 1363 (2015) (“[Ajlthough issues of the franchise correlate with race, as does the partisan divide between Democrats and Republicans, the new battles over ballot access do not readily lend themselves to a narrative that focuses primarily on racial exclusion.”).
III. Section 2 of the Voting Rights Act
The majority’s conclusion that SB 14 violates the “results test” defined in Section 2 of the Voting Rights Act misconstrues the law, misapplies the facts, and raises serious constitutional questions. This decision stands alone among circuit court decisions to date: two circuits have upheld photo voter ID laws against Section 2 challenges,
A. Background and the Majority’s Erroneous Approach
Section 2 of the Voting Rights Act, as amended in 1982, prohibits the imposition or application of any “voting qualification or prerequisite to voting or standard, practice, or procedure ... which results in a denial or abridgement of the right ... to vote on account of race or color .... ” 52 U.S.C. § 10301(a) (emphasis added). What kind of prerequisite “results in” abridgement? The statute continues:
A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the politicalprocesses leading to nomination or election ... are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office ... is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.
52 U.S.C. § 10301(b) (emphasis added).
Congress fashioned this language to overturn a then-recent Supreme Court decision limiting voting rights violations to cases of intentional state-sponsored discrimination, City of Mobile, Ala. v. Bolden,
Contrary to the statute and the Supreme Court, the majority’s discussion begins by misquoting the Supreme Court to say that a Section 2 voting rights violation can be “proved by showing discriminatory effect alone.” The Supreme Court, however, was not misguided; quoted accurately, the Court stated that Section 2 was revised “to make clear that a violation could be proved by showing discriminatory effect alone and to establish as the relevant legal standard the ‘results test, ’ applied by this Court in White v. Regester....” Thornburg v. Gingles,
The majority acknowledges that in transitioning from redistricting cases, epito
[1] [T]he challenged standard, practice, or procedure must impose a discriminatory burden on members of a protected class, meaning that members of the protected class have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice, and
[2] [TJhat burden must . in part be caused by or linked to social and historical conditions that have or currently produce discrimination against members of the protected class.
See League of Women Voters of N.C. v. North Carolina,
The first part of the test recapitulates Section 2, requiring a racially discriminatory burden on voting, which “mean[s] ... less opportunity” for minority citizens “to participate in the political process.” The second part draws from the “Gingles factors”
Using the Gingles factors is error on several levels. First, as will be elaborated on later, the statute alone sufficiently describes how violations of Section 2 vote abridgement claims are to be proved. The Senate Report cannot claim the same legal status, if any, as that of the enacted law. For present purposes, it suffices to point out that the second step of the two-part test, linking social and historical conditions to the discriminatory burden, derives from Gingles’ descriptive language, quoted immediately above, which did not purport to be a freestanding rule of law. The second step is also flawed “because it does not distinguish discrimination by the defendants from other persons’ discrimination.” Frank v. Walker,
Second, Gingles did not ascribe talis-manic significance to the Senate Factors; the Court prescribed a three-part test to gauge the disparate impact of multimem-ber legislative districts — before reaching the Section 2 analysis — with the Senate Factors used to confirm liability. Gingles,
Third, the extra-statutory Gingles factors originated in the Senate Report accompanying amended Section 2 principally to guide redistricting cases.
Applying this inherently flawed two-part test, the majority approves the district court’s finding that SB 14 “disparately impacts” racial minority voters because they are “more likely than their Anglo peers to lack” qualifying ID. The underlying findings were that 2% of Anglos, 5.9% of Hispanics, and. 8.1% of Blacks comprise the 4.5% of Texas voters who lack SB 14 IDs.
The majority moves on to the Gingles factors for proof that the disparate impact of SB 14 on ID possession “interacts with social and historical conditions” to cause unequal electoral opportunities for Blacks and Hispanics.
Gingles Factor 5, the “effects of past discrimination,” comprised on this record comparative socioeconomic data on employment rates, income, educational attainment, and health outcomes. That these (unfortunately) reflect differences among Whites, Blacks and Hispanics is a sociolog
The majority also adopts the finding that minorities’ disproportionately lower socioeconomic status “hinders their participation in the electoral process.” But while on one hand, the majority credits an expert opinion that minority voters are probably inhibited by the voter ID requirement from casting ballots, the majority forcefully disclaims, on the other hand, that Crin-gles factor 5 embodies any actual requirement for evidence of the law’s effect on voter turnout. Indeed, no evidence in the record supports a link between requiring SB 14 IDs for voting and diminished turnout. Despite testimony from a handful of voters, not one of the plaintiff organizations in this case offered testimony that a single one of their members had been prevented from voting by SB 14. The DOJ thoroughly canvassed the state of Texas in search of voters “disenfranchised” by SB 14 and found none. The State’s witness— Keith Ingram, the director of the Elections Division of the Texas Secretary of State— stated that the number of voters who have been unable to present a qualifying ID were “vanishingly small,” even after three statewide elections, six special elections, ■and numerous local elections that have taken place under the law.
Regarding Gingles factor 9, the “tenuousness of policies underlying the law,” the majority approves of the district court’s empirical analysis of SB 14 and finds “a total disconnect between the State’s announced interests and the statute enacted.” But cf. Williamson v. Lee Optical of Okla. Inc.,
The sum of the majority’s reasoning, despite its emphasis on “an intensely local appraisal” and its incantation of seven Gingles factors, boils down to these propositions:
(1) SB 14 specifically burdens Texans living in poverty, who are less likely to possess qualified photo ID, are less able to get it, and may not otherwise need it; (2) a disproportionate number of Texans living in poverty are African-Americans and Hispanics; and (3) African-Americans and Hispanics are more likely than Anglos to be living in poverty because they continue to bear the socioeconomic effects caused by decades of racial discrimination.
(citing Veasey v. Perry,
These conclusions are incredibly open-ended. The first conclusion can be met even though, as here, the law in question disadvantages only a small percentage of voters and contains ameliorative provisions and exemptions. The second conclusion is basically a condition of American society,
Virtually any voter regulation that disproportionately affects minority voters can be challenged successfully under the majority’s rationale: polling locations; days allowed and reasons for early voting; mail-in ballots; time limits for voter registration; language on absentee ballots; the number of vote-counting machines a county must have; registering voters at a DMV (required by the federal Motor Voter law); holding elections on Tuesday. Such challenges are occurring at the present time.
The majority’s rationale, however, is flawed not only as already explained, but simply because it does not correlate with the statute itself. Section 2, as the Seventh Circuit recognized, Frank,
B. The Proper Analysis
The correct answer is simple and consistent. Showing a disparate impact on poor and minority voters is a necessary but not
Using the textualist approach to Section 2, a vote abridgement claim should be analyzed (absent proof of intentional discrimination) as follows: First, consider the total impact of the challenged regulation on the voting public. If the regulation disparately affects minority voters, proceed to determine whether the particular burden imposed by the regulation, examined under the totality of circumstances, deprives them of an equal opportunity to participate in the electoral process. This analytical process, synthesized from Frank, fundamentally differs from that of the majority in three ways. First, it dispenses with the Gingles factors. Second, it requires a causal connection between the challenged regulation and the disparate impact. Third, Section 2(b) is better read as an “equal-treatment requirement (which is how it reads)” rather than “an equal-outcome command.” Frank,
Contrary to the majority opinion, applying the statute itself in this way does not
According to the correct, textualist frame of reference, SB 14 does not violate Section 2. The majority’s finding that a racial disparity “in ID possession” exists between Anglos and Blacks and Hispanics is not clearly wrong. The majority does not, however, establish that SB 14 “resulted in” or caused a diminution of the right to vote, nor does the “totality of circumstances” demonstrate that minority voters’ opportunity to participate has been reduced.
A tailored causation analysis is imperative under Section 2 case law. Not only does Gingles offer ample support for a requirement that the challenged law causes the prohibited voting results, but six circuit courts, including this court, have •clearly so held. See Gingles,
SB 14 had no impact on voter registration, the major prerequisite to casting a ballot. SB 14 does not adversely impact over 90% of minority voters who already possess SB 14 IDs or thousands of others eligible to vote by mail or any voter who can readily obtain a free EIC. Moreover, the plaintiffs here did not show that SB 14 had any effect on voter turnout or that any disparity in voter-quality ID possession was caused by SB 14. The rate of preexisting ID possession does not prove “that participation in the political process is in fact depressed among minority citizens.” LULAC,
As the Ninth Circuit held, “a [Section] 2 challenge ‘based purely on a showing of some relevant statistical disparity between minorities and whites,’ without any evidence that the challenged voting qualification causes that disparity, will be rejected.” Gonzalez,
Moreover, past examples of State-sponsored discrimination are not indicative that SB 14, the “challenged voting qualification,” caused the disparity in ID possession. After all, the majority itself discredited “long ago” evidence of State-sponsored discrimination when it reversed many parts of the district court’s finding that SB 14 was enacted with discriminatory intent. The majority’s attempt to shore up a finding of state-action-related discrimination with no more than socioeconomic disparities (and even alleged local differences in high school discipline, which can’t be the fault of the State of Texas), fails the test of LULAC, Gonzalez, and Inclusive Communities.
Misplacing its reliance on the Gingles factors, the majority also fatally errs in discounting the State’s and the public’s interest in enforcing SB 14. The State’s interests are weighty, they are to be treated as a matter of law, not fact as the majority does, and they outweigh the insubstantial proof of diminished minority opportunity to participate caused by SB 14.
In Crawford, the Supreme Court held that the State’s legitimate interest in preventing voter fraud is “sufficiently strong” to justify a voter ID law even without any evidence of voter fraud in the record.
The majority inaptly attempts to distinguish Crawford because that case reviewed a summary judgment record and involved constitutional challenges to the right to vote, while this case is brought under Sec
Further, the majority mischaracterizes the State’s interests as a matter of adjudicative fact. This court previously held en banc that the substantiality of the State’s interest is a legal question to be determined as a matter of law. LULAC,
Finally, even weighing the State’s interests as a matter of fact, the majority errs. The majority credits the district court’s finding that SB 14 would theoretically decrease voter turnout, yet overlooked that the minimal evidence in the record that anybody was actually prevented from voting. There is not even evidence that any voter was actually unable to obtain the proper voter ID. LULAC held that “plaintiffs cannot overcome a substantial State interest by proving insubstantial dilution.”
C. Constitutional Considerations
The majority claims to exercise “constitutional avoidance” by electing not to rule on the plaintiffs’ assertion that SB 14 burdened their right to vote contrary to the Fourteenth Amendment. But the majority has no qualms about keeping alive the preposterous and divisive claim that SB 14 was passed with unconstitutional discrimi
As applied here, the majority’s two-part Section 2 test authorizes judicial mischief in micromanaging a facially neutral state law implementing a Supreme Court-approved purpose in order to eliminate disparate impact (in types of qualified IDs) not caused by the law itself. This result interferes with the Constitution’s assignment of the conduct of elections to the States and is not congruent and proportional as a remedy for violation of voting rights protected by the Fourteenth and Fifteenth Amendments.
The Constitution’s “Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them.” Arizona v. Inter Tribal Council of Ariz., Inc., — U.S. -,
The States’ primacy in regulating elections is limited, however, by the Fourteenth and Fifteenth Amendments, which protect different rights. The Fifteenth Amendment secures the right to vote from denial or abridgment by intentional discrimination on account of race or color. City of Mobile v. Bolden,
Because Section 2 was enacted to protect voting rights under these amendments, it must be “appropriate legislation,” for the purpose. See City of Boerne v. Flores,
Section 2 is a prophylactic measure under the Fifteenth Amendment to the extent it prohibits any voting practice that “results in ... abridgement of the right ... to vote ... on account of race” as further elaborated by the totality of the circumstances test. 52 U.S.C. § 10301(a). The results test is less demanding than that of intentional discrimination. The majority’s two-part test, however, predicates liability not on any proven impact on voting but on disparate voter possession of qualifying IDs, a disparity caused not by
Consequently, not only does this expanded right exceed the Fifteenth Amendment, but it also threatens the balance struck by the Fourteenth Amendment between individual rights and the public’s need for fair and efficient elections. Under the majority’s reasoning, a wide swath of racially neutral election measures will be subject to challenge, a previously unthinkable result under the Fourteenth Amendment and the Constitution’s federalist design. Moreover, using Section 2 to rewrite racially neutral election laws will force considerations of race on state lawmakers who will endeavor to avoid litigation by eliminating any perceived racial disparity in voting regulations. But it is established that “subordinating] traditional race-neutral ... principles” to “racial considerations” violates the Equal Protection Clause. Miller v. Johnson,
In fact, the Súpreme Court has been careful to read Section 2 narrowly to avoid constitutional doubts. For example, in LU-LAC v. Perry, the Court rejected an interpretation of Section 2 that would have “unnecessarily infusefd] race into virtually every redistricting....”
IV. Conclusion
Today’s result moves us another step down the road of judicial supremacy by potentially subjecting virtually every voter regulation to litigation in federal court. According to the twists and turns of the
No doubt the majority believes that federal judges are well suited to regulate the electoral process. As with many judge-made “solutions,” however, today’s results will backfire. Judicial decisions will spawn inconsistent results and uncertainty, leading the public to question judges’ impartiality. This decision will thus foster cynicism about the courts and more rather than less racial tension. Lawmakers at every level will be forced to be race-conscious, not race-neutral, in protecting the sanctity of the ballot and the integrity of political processes. Finally, these unauthorized and extra-legislative transfers of power to the judiciary disable the working of the democratic process, which for all its imperfections, best represents “we the people.”
For these reasons, we dissent.
. We join only Part IV of the majority opinion that renders judgment in favor of the State on the Plaintiffs’ poll tax claim.
. This holding invalidates the law for that small subgroup of the subgroup of 4.5% of Texas registered voters, those who allegedly lack not only the law’s approved ID (drivers licenses, veterans ID, etc.) but also lack the documentation (birth certificates) necessary to obtain a free Election Identity Card
. Section 2 was amended to add the results test, footing liability on less than intentional conduct, in part to defuse controversy over charges of purposeful discrimination. See Thornburg v. Gingles,
As Dr. Arthur S. Flemming, Chairman of the United States Commission on Civil Rights, testified during hearings before the Subcommittee on the Constitution:
(L)itigators representing excluded minorities will have to explore motivations of individual council members, mayors, and other citizens. The question would be whether their decisions were motivated by invidious racial considerations. Such inquiries can only be divisive, threatening to destroy any existing racial progress in a community. It is the intent test, not the results test, that would make it necessary to brand individuals as racist in order to obtain judicial relief.
The very concern voiced by Dr. Flem-ming was illustrated by two recent decisions, [City of Mobile, Ala. v.] Bolden, [446 U.S. 55 ,100 S.Ct. 1490 ,64 L.Ed.2d 47 (1980)], on remand, and Perkins v. City of West Helena, Ark.[,675 F.2d 201 (8th Cir. 1982)]. In both cases, the federal courts were compelled to label the motives of recent public officials as "racial” in reaching the conclusion that an electoral system was maintained for a discriminatory purpose.
S. Rep. No. 97-417, at 36 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 207-08 (footnotes omitted).
. See Gregory W. Pedlow & Donald E. Welzen-bach. Cent. Intelligence Agency, The Central Intelligence Agency and Overhead Reconnaissance: The U-2 and OXCART Programs, 1954-1974 (1992) (declassified June 25, 2013) (report debunking Area 51 conspiracy theories). Circumstantial evidence — equally probative as that relied on by the majority — is at odds with calling SB 14 intentionally discriminatory. Lamenting the lack of Latino voter turnout in Texas elections, Gilberto Hinojosa, the Texas Democratic Chairman, was recently quoted in a news article: “Voter ID is a problem. It is. But that’s fixable.... That’s not stopping that 1 million from going out to vote ....” Peggy Fikac, Texas Democratic Chair: It’s ‘Ridiculous’ His Party Isn’t Winning, San Antonio Express News (June 16, 2016), http://www. mysanantonio.com/news/local/article/Texas-Democratic-chair-It-s-ridiculous-8261873. php.
. The majority also erroneously equates finding legislative intent with finding discrimination in employment cases. The intent of the legislature is a pastiche of each individual representative’s views, mixed policies and motives. An employer, in contrast, is held to have a single motive and policy. A facile equa- ' tion of these two situations elides the difficulty in legislative cases, which the Supreme Court plumbed in cases described above.
. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,
. Id. (citing Reitman v. Mulkey,
. Id. at nn.16-17 (citing Kennedy Park Homes Ass’n v. City of Lackawanna,
. A finding of discrimination had been remanded for reconsideration in light of Washington v. Davis. Pers. Adm’r of Mass v. Feeney,
. Justice Stevens’s concurrence pointed out that about 2.8 million women were adversely affected by the law, but so were over 1.8 million men, a comparison he found significant "to refute the claim that the rule was intended to benefit males as a class over females as a class.” Id. at 281,
. It is true that the primary holdings in Washington v. Davis and Feeney worked out the relationship between disparate impact and the Equal Protection clause, but in each case, to uphold the law in question, the Court necessarily had to find no purposeful discrimination by the legislature. This discussion reflects that aspect of the decisions.
. Cf. Hunter v. Underwood,
Judge Costa attempts to explain away the absence of any comparable case in over forty years declaring that a state legislature acted with discriminatory intent. The presence of preclearance under Section 5 in some jurisdictions does not explain why there are no findings of purposeful discrimination by a state legislature either outside the jurisdictions covered by preclearance or beyond the subject of voting regulations. Washington v. Davis, Feeney, and Arlington Heights all rejected discrimination claims not arising from voting rights. Like the majority, Judge Costa continues to fear de jure discrimination by states fifty years after passage of the major federal civil rights laws in this country.
. Judge Costa’s separate opinion requires special comment to the extent it admits a
. In Arlington Heights, the Supreme Court cautioned that "judicial inquiries into legislative or executive motivation represent a substantial intrusion into the workings of other branches of government” and that "[p]lacing a decisionmaker on the stand is therefore ‘usually to be avoided.’ ”
Since Arlington Heights, courts frequently rely on the legislative privilege to repel attempts by plaintiffs to subject legislators to the burdens of civil litigation. See In re Hubbard,
In this case, however, the district court disregarded this authority and opted to take a piecemeal, balancing approach to the legislators’ legislative privilege.
. See, e.g., ROA 83316-17 (requesting from Senator Fraser "[a]ll documents related to communications between, among, or with you, the office of the Governor, the office of the Lt. Governor, the office of the Secretary of State, the Department of Public Safety, the office of the Texas Attorney General, any Legislator or Legislators, their staff or agents, lobbyists, groups, associations, organizations, or members of the public concerning the State of Texas’s consideration of a requirement that voters present identification to cast a ballot, from January 1, 2005, through November 30, 2010).
. Lt. Gov. Dewhurst (ROA 60999); Senator Dap Patrick (ROA 620987); Senator Robert Duncan (ROA 61062); Senator Troy Fraser (ROA 61168); Senator Tommy Williams (ROA 62692); Speaker Joe Straus (ROA 65509); Rep. Debbie Riddle (ROA 62219); Rep. Patricia Harless (ROA 61343); Bryan Hebert, General Counsel to the Lt. Governor (ROA 60999); Janice McCoy, Chief of Staff to Senator Troy Fraser (ROA 64226); and Colby Beuck, Chief of Staff to Rep. Harless (ROA 60918).
. See Lt. Gov. Dewhurst Dep. at 122 (ROA 61026) ("presenting the ID listed in Senate Bill 14 is a substantial improvement towards the goals that most people have, and that is to fight voter fraud, because all of these four points will show who the person is, divert voter fraud and to provide more confidence in the election process and result in a larger voter turnout.”); Senator Patrick Dep. at 106 (ROA 62122) ("To protect the integrity of the ballot box — and pass a bill that the vast majority of people had indicated they wanted passed and believed should pass.”); Senator Fraser Dep. at 174, 177 (ROA 61204-05) (agreeing that the purpose of SB 14 was to deter voter fraud and to “protect the integrity of the voting box”); Senator Duncan Dep. at 127-29 (ROA 61091) ("The purpose of the bill was to preserve ballot integrity and to prevent people from just basically harvesting voter ID cards or voter registration cards and using them to influence primary and general elections.”); Senator Williams Dep. at 115 (ROA 62709) ("I think the purpose of the bill was to prevent in-person voter fraud. That would include people who weren’t citizens of the United States who tried to vote.”); Rep. Straus Dep. at 49 (ROA 65521) ("I think just general voter ballot security just to be certain that those who were casting votes were doing so legitimately.”); Rep. Harless Dep. at 85 (ROA 61359) ("I can’t recall the answer of all the purposes of it, but mainly to provide for the integrity of the in-person voting by showing a photo ID.”); Rep. Riddle Dep. at 68 (ROA 62228) ("It is critically important for us to maintain the integrity of the ballot box and for the voters to have 100 percent confidence in the integrity of the ballot box.”).
. Representative Smith’s “common sense” was only partially accurate because nearly half of those lacking SB 14 ID are White.
. The majority wisely does not rely — as the district court did — on the fleeting statement of Senator Rodney Ellis, an SB 14 opponent, who speculated that "[i]n my mind, I think ... they knew the bill had a disparate impact.”
. See Beare v. Smith,
. See Flowers v. Wiley, S-75-103-CA (E.D. Tex. 1975); see also Flowers v. Wiley,
. The "rules ... initially suspended" that the district court refers to is the two-thirds rule; thus, “suspending the rules” refers to getting two-thirds to move a bill past a blocker bill, which would be considered first under ordinary rules.
. The 2009 rules change also provided that voter ID legislation would be referred to the Senate Committee of the Whole (i.e. the entire Senate) rather than traditional committee structures. More on that to come.
. Chubbing in the Texas House is analogous to filibustering in the Texas Senate. With a filibuster, a single senator speaks on a topic for a long amount of time in order to prevent further consideration. House rules prevent filibustering, but allow any representative the ability " to speak for 10 minutes on any bill he favors. To chub, representatives use their allotted 10 minutes to speak in favor of any and all legislation, routine or not, that is considered before the target bill. When multiple representatives combine their speaking privileges across multiple bills, they are able to run the clock out on target legislation slated to be considered later in the session.
. There are apparently no records kept on the historical number or length of chubs in the Texas House, but information is kept on the number and length of analogous filibusters in the Texas Senate. To put the 26 hour chub into context, witness in this case and former State Senator Wendy Davis’s 2013 filibuster against abortion legislation lasted just 11 hours. A 26 hour chub, were it a filibuster, would be good for the sixth longest filibuster in the history of the Texas Senate and longest since the record (43 hours) was set in 1977. See Filibusters and Chubbing, Legislative Reference Library of Texas, http://www.lrl.state.tx. us/whatsNew/client/index.cfm/2011/5/23/ Filibusters-and-Chubbing (last visited June 27, 2016).
. As demonstrated by the Attorney General of Indiana as amicus in this case, the Indiana and Texas laws are not meaningfully different. See Brief of the States of Indiana, et al. as Amici Curiae at 12-16, Veasey v. Abbott, No. 14-41127 (5th Cir. Apr. 29, 2016).
. Eminent domain legislation, along with perhaps a couple of other topics, were also designated emergencies for the 2011 session.
. Further, all of the emergency legislation was considered early in the 2011 session.
. Actually, nine photo voter ID bills were filed in the Senate, but Lt. Governor De-whurst selected Senator Fraser’s and asked him to refile it as priority legislation. Senator Fraser had been the Senate sponsor of previous bills that failed. That there were so many bills filed demonstrates just how politically important voter ID legislation was.
. Additionally, legislation considered in the Committee of the Whole can be referred to the entire Senate after just 24 hours, so it is important to ensure the entire Senate has all important information it needs.
. As if further evidence is necessary to show that the suspension of the two-thirds rule was for political motivations, and not racially discriminatory ones, it is notable that the Texas Senate (by majority vote) completely did away with the two-thirds rule in the 2015 session. It is now the three-fifths rule, which has the effect of reducing from 21 to 19 the number of Senators necessary to move legislation past a blocker bill. Under the new threshold in the 2015 session, the Texas Senate was able to pass Republican political priorities such as open cariy, campus carry, moving the public integrity unit from the Travis County District Attorney’s Office to the Texas Rangers, and an A-F grading system for public schools. All of these bills had been designated, as SB 14 was in 2011, priority legislation by the Lt. Governor and assigned correspondingly low bill numbers. Ironically, Democrats also passed a few bills out of the Senate under the new three-fifths rule that would have been blocked under the old two-thirds rule, including one that would make it easier for some state employees to work from home and have more .flexible work hours. See Aman Batheja, Without Two-Thirds Rule, Senate Moving Patrick’s Priorities, Tex. Trib. (May 19, 2015), https:// www.texastribune.org/2015/05/19/loss-two-thirds-rule-senate/.
. Additionally, in order to pass a budget, the two-thirds rule was suspended in the 2011 session by a procedural move different from that used to suspend it for SB 14. See Ross Ramsey, Failed Budget Vote Threatens Texas Senate Tradition, Tex. Trib. (May 3, 2011), https://www.texastribune.org/2011/05/03/ failed-budget-vote-threatens-senate-tradition/. The majority reads way too much into the suspension of the two-thirds rule.
. See Feeney,
. To reiterate, the Indiana law and the Texas law really aren’t that different; and many of the “ameliorative” provisions that were rejected were in fact contained in earlier iterations of the bills introduced in 2005, 2007, and 2009, at the behest of Democrats, but the Democrats opposed those bills anyway.
. Furthermore, while Texas may have a comparatively strict law in terms of what ID may be presented, its election laws are quite permissive regarding encouraging voter turnout.
These provisions include: an approximately two week early voting period with no restrictions, Tex. Elec. Code § 85.001(a), wide availability of voter registration applications, see Request for Voter Registration Applications, Tex. Sec’y of St., http://www.sos.state.tx.us/ elections/voter/reqvr.shtml (last visited June 28, 2016) (providing online voter registration applications), and the flexibility of mail-in ballots without photo ID requirements for the elderly and disabled, Tex. Elec. Code §§ 82.002-003. Taken in "context,” it is as easy, if not easier, to register and vote in Texas than it is in many other states.
. Both the majority and the district court, Veasey v. Perry,
. See supra note 17 (collecting statements of purpose-from the deposition testimony of legislators who were proponents of SB 14).
. Frank v. Walker,
. Frank,
. The majority next compounds its confusion in averring that mere discriminatory effect can afford a basis for a Fifteenth Amendment violation; the true test is that of intentional discrimination. Bolden,
. The Seventh Circuit found the Gingles factors “unhelpful in voter-qualification cases.” Frank v. Walker,
. The nine Gingles factors are:
1. the extent of any history of official discrimination in the State or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process;
2. the extent to which voting in the elections of the State or political subdivision is racially polarized;
3. the extent to which the State or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;
4. if there is a candidate slating process, whether the members of the minority group have been denied access to that process;
5. the extent to which members of the minority group in the State or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process;
6. whether political campaigns have been characterized by overt or subtle racial appeals;
7. the extent to which members of the minority group have been elected to public office in the jurisdiction^]
8. whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group[;]
9. whether the policy underlying the State or political subdivision's use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.
Gingles,
. As one commentator explains, the legislative history of the 1982 Section 2 amendments "focused so intently on representation rather than participation,” Daniel P. Tokaji, The New Vote Denial: Where Election Reform Meets the Voting Rights Act, 57 S.C. L.Rev. 689, 709 (2006), that it is a mistake to use that history, embodied in the Gingles factors, beyond vote dilution.
. Largely from experts and statistically-based proof arises the finding that SB 14 "disproportionately impacted the poor” who are less likely to have an ID, less likely to avail themselves of services requiring one, and for whom "[e]ven obtaining an EIC poses an obstacle” given the difficulties for some in
. The majority neglects to mention other exemptions to the photo ID requirements for religious accommodation and disaster loss.
. McDonald v. Bd. of Election Comm’rs of Chi.,
. Space does not permit elaboration, but the majority defends its application of the Gingles factors in part by repeatedly mischaracteriz-ing and distorting the State’s arguments.
.Two Gingles factors, the existence of racially polarized voting and the lack of racial campaign appeals, are plainly irrelevant here. Another factor, the history of state-sponsored discrimination recounted by the majority has already been shown to be legally unsupported, see discussion supra, and “long-ago.” The Legislature that passed SB 14 had virtually proportional minority representation, rendering another Gingles factor, the extent of elected minority officials throughout the state, beside the point. Finally, showing the Legislature as "unresponsive” to minorities solely with reference to the 2011 events preceding passage of SB 14 fundamentally misunderstands this Gingles factor, which relates to the overall conduct of representative government as it applies to legislative districting; moreover, as has been shown, the majority and district court did not read the legislative record over the past four sessions and six years.
. The majority references the district court’s opinion, Veasey v. Perry,
. The majority disclaims the necessity of a proven turnout effect because it is allegedly too difficult to prove. The reality, however, is that such effects simply have not been found by researchers who have investigated voter ID law. See, e.g., Samuel Issacharoff, Ballot Bedlam, 64 Duke L.J. 1363, 1377-86 (2015); Michael D. Gilbert, The Problem of Voter Fraud, 115 Colum. L. Rev. 739, 746-50, 749 n.53 (2015); Michael J. Pitts, Empirically Measuring the Impact of Photo Id over Time and Its Impact on Women, 48 Ind. L. Rev. 605, 605-07 (2015).
.The majority’s citation to St. Joseph Abbey v. Castilla,
. Moreover, some studies actually show that voter ID laws increase voter turnout. See Gilbert, supra note 50, at 749 n.56 and accompanying text (collecting studies and discussing rationales).
. Judge Higginson’s special opinion embraces and embroiders the majority’s position adopting the Gingles factors to interpret Section 2. Judge Higginson focuses principally on racial socioeconomic disparities as the touchstone for Section 2 liability, thus overlooking the Supreme Court’s warning that states cannot be held responsible to fix disparities they did not create. He disparages requiring plaintiffs to prove that SB 14 itself caused ("resulted in”) the abridgement of voting rights — while apparently accepting the majority’s legally upside-down view that the state must prove the statute's efficacy in preventing voter fraud. Finally, Judge Higgin-son’s disparate impact focus would create constitutional tension, to say the least, by forcing states to become race-conscious in avoiding disparate impact whenever they enact voting regulations. This result is not a benign "evolutionary” process to "harmonize” legislative priorities with the right to vote; it is judicial micromanagement of race-neutral voting regulations consigned to the states.
. See, e.g., Ne. Ohio Coal. for the Homeless v. Husted,
. The majority opinion admits this in stating that, "[ajccording to a well-established formula ... to assess individuals’ likelihood of voting in an election, increasing the cost of voting decreases voter turnout — particularly among low-income individuals, as they are most cost sensitive.” (citing Veasey v. Perry,
. How the majority can claim its interpretation is "consistent” with Frank is incomprehensible. Frank found the Gingles factors "unhelpful” in vote abridgment cases,
Moreover, Frank finds no Section 2 violation where the Wisconsin voter ID law arguably had a higher disparate impact on voter ID possession than SB 14. Compare Frank,
. The Supreme Court itself declined to rule on Equal Protection issues raised in a redistricting case where the lower court decision might rest on the alternative ground of the Voting Rights Act. Escambia Cty. v. McMillan,
Dissenting Opinion
joined by EDITH H. JONES and EDITH BROWN CLEMENT, Circuit Judges, dissenting:
We respectfully dissent for the reasons ably explained by Judges JONES, CLEMENT, and ELROD.
The en banc court is gravely fractured and without a consensus. There is no majority opinion, but only a plurality opinion that draws six separate dissenting opinions and a special concurrence.
Despite deep divisions on key questions, however, the en banc court is unanimous in roundly repudiating the district court for legal error on some issues. Most significantly, the district judge attempted to wipe the Texas voter ID law entirely off the books — a remedy that the majority rightly observes “is potentially broader than the one to which Plaintiffs would be entitled .... ” (Page 77.) The en banc court instead leaves the voter ID requirement essentially intact. In reversing, all fifteen judges agree that, in the words of the plurality opinion, “the vast majority of eligible voters possess SB 14 ID, and we do not disturb SB 14’s effect on those voters — those who have SB 14 ID must show it to vote.” (Page 82.) That is a global change from what the district court ruled.
The en banc court is likewise unanimous in reversing the district judge’s bizarre declaration that SB 14 is a poll tax. (Part IV.) That is a frivolous claim that never should have seen the light of day. Her
The unanimous court likewise clips the district judge’s wings by vacating her gratuitous holding — in violation of the rule of constitutional avoidance — -that SB 14 burdens the right to vote in violation of the First and Fourteenth Amendments. (Part III.) The plurality opinion properly dismisses those claims, criticizing the district court for ignoring the “well established principle governing the prudent exercise of ... jurisdiction that [federal courts] will not decide a constitutional question if there is some other ground ....” (Page 71.)
The plurality opinion, although charitably allowing the district judge a second chance to review existing evidence, also roundly and repeatedly scolds her for mishandling that evidence and making erroneous findings therefrom. For example, the plurality aptly declares that “some [of the] findings are infirm.” (Page 10.) Some “findings are infirm because of an erroneous view of the law.” (Page 10.) “[W]e hold that much of the evidence upon which the district court relied was infirm.” (Page 13.) “Because the district court relied upon evidence we conclude is infirm, the district court’s opinion cannot stand as written.” (Page 18.) “[T]he district court’s analysis contained some legal infirmities.” (Page 19.) “[S]ome of the evidence on which the district court relied was infirm.” (Page 30.) The plurality gives the district court “instructions ... about the legal infirmities in its initial findings.” (Page 32.) The judge is told “to reevaluate the evidence” (Page 32) in accordance with “the appropriate legal standards” (Page 31). The plurality sternly rejects the judge’s use of suspect evidence: “[W]e do not agree that such anecdotal evidence of racial campaign appeals shows that SB 14 denies or abridges the right to vote.” (Page 64.)
In sum, the vast majority of the judges on the en banc court have declared the district judge to have substantially erred in myriad legal conclusions and use of evidence, and the court is unanimous in several of those reversals. The district court is well-advised to avoid such regrettable misadventure on remand.
. This case is an apt candidate for the well-worn saying, "You can’t tell the players without a scorecard.” Harry Stevens is credited with coming up with these words. Sometimes thought to be the inventor of the hot dog, he sold refreshments at Major League Baseball games in the early 1900s. "He also began to sell scorecards to fans with the phrase [‘]Yom can't tell the players without a scorecard.['Y' Harry M. Stevens, Wikipedia, https://en. wikipedia.org/wiki/Harry_M._Stevens (last modified July 5, 2016).
Concurrence Opinion
concurring in part, dissenting in part, and concurring in the judgment:
I concur in all but part II.A.1 of the majority’s opinion. I respectfully dissent from the majority’s reversal of the district court’s finding that SB 14 was enacted with a racially discriminatory purpose because, in my view, we are bound to affirm that factual finding. The majority opinion erroneously assigns legal errors to the district court and, in disturbing the district court’s finding of discriminatory purpose, fails to adhere to the proper standard of review and engages in improper reweighing of the evidence.
The district court’s determination that SB 14 was enacted with a racially discriminatory purpose or intent is a finding of fact. See Rogers v. Lodge,
The majority does not contend that the district court’s finding of discriminatory purpose is implausible in light of the record as a whole. Indeed, the majority opinion itself appears to acknowledge that there is a considerable amount of evidence to support this finding. See, e.g., Maj. Op. at 234-41 (discussing part of the voluminous evidence that tends to show that SB 14 was enacted with a discriminatory purpose). Nevertheless, the majority reverses the district court because of purported legal errors, specifically, the district court’s reliance on evidence that, in the majority’s view, is “infirm.”
Of course, Rule 52(a) does not apply to conclusions of law, and the district court’s findings may be set aside if they rest on an erroneous view of the law. Pullman-Standard,
First, the majority faults the district court for relying “too heavily” on evidence of Texas’s less recent history of enacting discriminatory voting measures, citing Shelby Cty., Ala. v. Holder, — U.S.-,
Shelby County concerned only the coverage formula for the preclearance requirement under section 5 of the Voting Rights Act, and the Supreme Court explicitly stated that its decision “in no way affects the permanent, nationwide ban on racial discrimination in voting found in
In McClesky, the petitioner argued that Georgia’s modern death sentencing process was unconstitutional.
Next, the majority opinion faults the district court for its reliance on evidence that, in the majority’s view, is “limited in [its] probative value,” including the relatively recent history of official discriminatory actions in a particular Texas county and post-enactment testimony by proponents of the bill. Maj. Op. at 231, 233-34. In that respect, the majority opinion explicitly engages in reweighing of the evidence. See, e.g., id. at 234 (“While probative in theory, even those (after-the-fact) stray statements made by a few individual legislators voting for SB 14 may not be the best indicia of the Texas Legislature’s intent.”). But determining the weight of the
Finally, the majority opinion criticizes the district court for relying on conjecture and conclusory accusations by the bill’s opponents in the Texas Legislature about the proponents’ motives. Maj. Op. at 232-34. However, in its analysis of the discriminatory purpose claim, the district court did not rely on conjecture or conclusory assertions; instead, the court relied in part on testimony by SB 14’s opponents as to particular facts and drew independent conclusions from those facts. See, e.g., Veasey,
In sum, the majority opinion identifies legal error where there is none, disturbs valid factual findings by the proper fact-finder, and thereby exceeds this court’s authority under Rule 52(a). Because I believe we must affirm the district court’s finding that SB 14 was enacted with a discriminatory purpose, I respectfully dissent in part. However, given that that our court has resolved to reverse the discriminatory purpose finding and because of the significant evidence tending to show that SB 14 was enacted with a discriminatory purpose, I agree that this claim must be remanded to the district court for further proceedings in accordance with the judgment of the court.
. The majority opinion itself recognizes that this evidence is relevant and probative. In surveying the evidence that tends to support the district court’s discriminatoiy purpose finding, the majority opinion discusses evidence of Texas’ history of “justifying voter suppression efforts,” including the all-white primary, literacy and secret ballot requirements, poll tax, and re-registration and purging, "with the race-neutral reason of promoting ballot integrity.” Maj. Op. at 237. Thus, the majority opinion suggests that this evidence tends to show that the Legislature's justification of SB 14 as a measure to ensure ballot integrity was pretext. See id. at 236-37. But the majority opinion does not explain why this historical evidence, which may be used to prove pretext, cannot be used to support a more direct inference of discriminatory intent.
Dissenting Opinion
joined by E. GRADY JOLLY, EDITH H. JONES, JERRY E. SMITH, PRISCILLA R. OWEN, and JENNIFER WALKER ELROD, Circuit Judges, dissenting as to Part II.A:
The Supreme Court has instructed that when a district court’s findings as to discriminatory purpose are “infirm” and “the record permits only one resolution of the factual issue,” we must reverse and render. Pullman-Standard v. Swint,
I.
The district court made infirm findings that rested on legal error in concluding that the Legislature passed SB 14 with a discriminatory purpose. The plurality addresses only some of these errors in a selective and disorderly fashion, failing to conduct the appropriate analysis under the Arlington Heights framework. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,
In conducting the proper analysis, it is important to bear in mind plaintiffs’ heavy burden in imputing discriminatory intent to an entire legislative body. “ ‘Discrimina
First, the district court disproportionately relied on long-ago historical background evidence unrelated to SB 14 to discern a discriminatory purpose by the Legislature. See Veasey v. Perry,
■ Second, the plurality fails to address the “specific sequence of events leading up [to] the challenged decision,” Arlington Heights,
Third, the plurality claims that certain procedural departures by the Legislature provide a “potential link” in the “circumstantial totality of evidence” of possible discriminatory purpose. Op. at 237. But, as the plurality concedes, “context matters.” Id. Viewed in the appropriate context, the procedural maneuvers employed by the Legislature occurred precisely because opponents of the legislation — several of whom are the very parties who brought this lawsuit — blocked three earlier itera
The plurality makes much of the Legislature’s passage of SB 14 in the midst of other “pressing matters of great importance to Texas.” Op. at 239. In doing so, the plurality only feigns deference to the legislative process by claiming that the Legislature “is entitled to set whatever priorities it wishes.” Id. at 238. We are not entitled to supplement our policy preferences for that of the Legislature, and speculation such as what “one might expect” a legislature to do, id is not evidence of discriminatory purpose. It would be improper for the district court to infer discriminatory intent on behalf of the Legislature by second guessing legislative priorities. See Arlington Heights,
Fourth, the State’s purposes in passing SB 14 were protecting the sanctity of voting, avoiding voter fraud, and promoting public confidence in the voting process— motives that are unquestionably legitimate. See Crawford v. Marion Cty. Election Bd.,
Fifth, the district court identified no reliable legislative history or contemporary statements that reveal discriminatory purpose. “The legislative or administrative history may be highly relevant, especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports.” Arlington Heights,
The district court relied in large part on accusations by the bill’s opponents about proponents’ motives. See Veasey,
Despite discrediting this unreliable evidence, the plurality still determines that “circumstantial evidence ... could support a finding of discriminatory purpose.” Op. at 235. The primary evidence cited by the plurality is that “[t]he record shows that drafters and proponents of SB 14 were
The plurality also overlooks the total absence of direct evidence of a discriminatory purpose and the effect of plaintiffs’ failure to unearth such evidence — despite repeated assertions that such evidence exists. The district court allowed plaintiffs to develop an extensive discovery record that included thousands of documents, numerous and lengthy depositions, and confidential email communications, all on plaintiffs’ assertion that such discovery would offer critical evidence of discriminatory motive. In the end, this intrusive search — typically reserved only for “extraordinary” cases— yielded no such evidence. See Arlington Heights,
The Supreme Court has recognized the gravity of judicial inquiries into alleged improper motives by a legislative body. O’Brien,
II.
The record permits only one conclusion in this inquiry after applying the appropriate legal standards and discounting the infirm findings by the district court: Plaintiffs have not proven that the Texas Legislature acted with a discriminatory intent in enacting SB 14. See Pullman-Standard,
The record below was fully developed. Because plaintiffs “simply failed to carry their burden of proving that discriminatory purpose was a motivating factor in the [Legislature’s] decision,” the district court should not be allowed to conduct any reweighing of the evidence. Arlington Heights,
For these reasons, I would reverse the district court’s holding as to discriminatory purpose and render judgment for the State on this claim.
joined by SMITH, Circuit Judge, concurring in part and dissenting in part:
I dissent from all but Part IV of Judge Haynes’s opinion.
Plaintiffs’ claim that SB 14 violates the “results test” of Section 2 of the Voting Rights Act also fails. SB 14 does not “result[] in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” 52 U.S.C. § 10301(a).
[A] disparate-impact claim that relies on a statistical disparity must fail if the plaintiff cannot point to a defendant’s policy or policies causing that disparity. A robust causality requirement ensures that racial imbalance does not, without more, establish a prima facie case of disparate impact and thus protects defendants from being held liable for racial disparities they did not create.
Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., — U.S. -,
Moreover, Plaintiffs’ § 2 claim fails even if we consider the Gingles factors. SB 14 has been tested many times and there is no evidence in this record that any voter has been denied the right to vote on the basis of his or her race because of its voter ID requirements.
The Voting Rights Act rests on Congress’s authority to enact “appropriate legislation” to enforce the guarantees of the Fifteenth Amendment. Shelby Cty., Ala. v. Holder, — U.S. -,
The contrary approach taken by Judge Haynes’s opinion improperly would permit challenges to virtually all aspects of the voting process simply because poverty adds to the burdens of everyday activities and wealth distribution is unequal across racial groups. This distorts the § 2 analysis and raises serious constitutional questions. Cf. Inclusive Cmties.,
The Supreme Court has explained that for most voters, the burdens associated with obtaining photo ID in order to vote “surely do[] not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting.” Crawford,
Simply put, Plaintiffs have not shown that SB 14 had any effect on voter turnout, that any disparity in ID possession among racial groups was caused by SB 14, or that a single Texan is prevented from voting by SB 14. Accordingly, I would vacate the district court’s opinion and render judgment for the State.
. Part IV of Judge Haynes's opinion correctly vacates the district court’s opinion and renders judgment in the State's favor on Plaintiffs' claim that SB 14 imposes an unconstitutional poll tax. Part III of Judge Haynes’s opinion vacates the district court’s ruling on Plaintiffs First and Fourteenth Amendment claims. I agree that those claims should be vacated. Because I do not agree with the treatment of the Voting Rights Act claims in Judge Haynes's opinion, I would reach the First and Fourteenth Amendment claims and reverse. The First and Fourteenth Amendment claims fail because Plaintiffs have not shown SB 14 "imposes 'excessively burdensome requirements’ on any class of voters....” Crawford v. Marion Cty. Election Bd.,
. Judge Costa's opinion blurs the line between discriminatory intent and discriminatory effect. Even when a legislature acts to disadvantage an opposition party, the mere correlation between party membership and race does not create a Voting Rights Act or Equal Protection claim. "Because of” means because of. See Pers. Adm'r of Massachusetts v. Feeney,
. Thornburg v. Gingles,
. The malleability of the Gingles test is visible in its implementation: different courts purporting to apply the Gingles factors seem to conduct very different analyses. Compare Ohio State Conference of NAACP v. Husted,
.To establish a § 2 claim, Plaintiffs must first show that SB 14 abridges or denies an individual's ability to vote. After an exhaustive
Dissenting Opinion
dissenting from Part 11(A)(1):
The six years of debate in the Texas Legislature before voter ID passed dera-
In contrast to the uncertain legal terrain for the discriminatory effects claim, the discriminatory purpose claim can be resolved through application of two entrenched legal principles: the deference that appellate courts owe to factfinders and the Arlington Heights framework for evaluating circumstantial evidence of discriminatory purpose.
That deference is the reason it is hard to find appeals of bench trials involving private law causes of action in which we have concluded that the factual findings were clearly erroneous. This year alone, we have affirmed such findings in bankruptcy,
But it is easier to find recent public law cases in which we have not upheld factual findings, despite the deferential standard of review.
So what are the reasons why the majority opinion, despite noting significant evidence “that could support a finding of discriminatory intent,” Maj. Op. at 235, does not defer to that finding? There are two: the district court relied “too heavily on the evidence of State-sponsored discrimination dating back hundreds of years” and “on post-enactment speculation by opponents of SB 14.” Maj. Op. at 230-31, 232. As discussed below, however, virtually none of this evidence that the majority opinion critiques appears in the district court’s analysis of the discriminatory purpose claim. See Veasey v. Perry,
With respect to the use of history, I read not only the district court’s opinion but also the case law differently. As legal support for the view that the district court gave too much weight to “long-ago history,” the majority opinion relies principally on Shelby County v. Holder, — U.S. -,
Shelby County was not a case about purposeful discrimination under the Fourteenth Amendment or Section 2 of the Voting Rights Act. It makes no mention of Arlington Heights. For those reasons alone, Shelby County should not be used to curtail the use of an Arlington Heights factor. See Rodriguez de Quijas v. Shear-son/Am. Express, Inc.,
But even if we did have the freedom to engage in a law review-like debate about what Shelby County foretells for the use of history as circumstantial evidence under Arlington Heights, history is being used very differently in the two contexts. Shelby County rejected the use of 50-year-old history alone to impose the “stringent” requirement of preclearance. That pre-clearance requirement, which applied to new laws carrying no hint of unconstitutionality (even ones that increased access to voting), was an exception to the normal practice of using “case-by-case litigation” to enforce constitutional rights.
That type of pattern-or-practice evidence exists here. As the majority opinion recognizes, most of the discriminatory laws the district court recounted — all-white Democratic primaries; literacy tests; poll taxes; and the annual re-registration requirement that Texas imposed after the poll tax was abolished — were justified with the same interest cited for voter ID: prevention of voter fraud. Maj. Op. at 236-37. Another thread, again recognized by the majority opinion, running from prior restrictive voting laws to SB 14 is that they have typically been enacted (by both political parties) in response to a perception of increased voting power by emerging demographic groups.
Despite recognizing that this connection was made with respect to both the voter fraud rationale and historical practice of enacting voting restrictions in response to potential increases in minority voting strength, the majority opinion nonetheless holds that the district court relied too much on “evidence of State-sponsored discrimination dating back hundreds of years.” Maj. Op. at 231. To be sure, historical evidence limited to the nineteenth century is of “little probative value.” McCles-
The majority opinion’s contrary view seems to flow from its scrutiny of the entire district court opinion for any references to evidence that may not be probative of discriminatory intent. But the district court had before it not just the purpose question, but claims involving discriminatory effects, impact on First Amendment interests under the Anderson/Burdick balancing test, and whether the voter ID imposed a poll tax. As is customary with bench trial rulings, the district court first summarized the testimony and facts from the entire trial. Only after that discussion, which was lengthy given the vast record, did it proceed to analyze the particular claims and identify the evidence that supported its legal conclusions for each. In reviewing the factual sufficiency of the finding of discriminatory purpose, our review should focus on the district court’s analysis of that particular claim.
One looking at that section of the district court’s decision after reading today’s opinions with their focus on history would be surprised that this is the only mention of it:
Historical Background. As amply demonstrated, the Texas Legislature has a long history of discriminatory voting practices. To put the current events into perspective, Texas was going through a seismic demographic shift at the time the legislature began considering voter ID laws. Hispanics and African-Americans accounted for 78.7% of Texas’s total population growth between 2000 and 2010. In addition, it was during this time that Texas first became a majority-minority state, with Anglos no longer comprising a majority of the state’s population. As previously discussed, this Court gives great weight to the findings of Dr. Lichtman that ‘[t]he combination of these demographic trends and polarized voting patterns ... demonstrate that Republicans in Texas are inevitably facing a declining voter base and can gain partisan advantage by suppressing the overwhelmingly Democratic votes of African-Americans and Latinos.’
Even if one reads the footnote at the end of the first sentence as fully incorporating the opening section of the opinion that chronicles “Texas’s history with respect to racial disparity in voting rights,”
Texas has a long, well-documented history of discrimination that has touched upon the rights of African-Americans and Hispanics to register, to vote, or to participate otherwise in the electoral process. Devices such as the poll tax, an all-white primary system, and restrictive voter registration time periods are an unfortunate part of this State’s minority voting rights history. The history of official discrimination in the Texas election process — stretching back to Reconstruction — led to the inclusion of the State as a covered jurisdiction under Section 5 in the 1975 amendments to the Voting Rights Act. Since Texas became a covered jurisdiction, the Department of Justice has frequently interposed objections against the State and its subdivisions.
LULAC v. Perry,
This improper focus on the district court’s summary of the evidence rather than its later analysis of the discriminatory purpose claim is just as pronounced when it comes to the statements of bill opponents with which the majority opinion also finds fault. Maj. Op. at 232-33. Those comments appear nowhere in the one-paragraph discussion of “Contemporaneous Statements,”
But even if not, with that factual finding being the only one specifically mentioned in the district court’s discussion of discriminatory purpose with which the majority opinion finds fault, it does not seem like a
Vacating the finding of discriminatory purpose not only is at odds with the deference owed the factfinder, but also causes delay in the ultimate resolution of this case that could impose significant costs. Voter ID was passed five years ago. Litigation concerning its lawfulness has been ongoing for more than four years.
* * *
Reluctance to hold that a legislature passed a law with a discriminatory purpose is understandable. Maj. Op. 231 (“We acknowledge the charged nature of accusations of racism, particularly against a legislative body .... ”). Yet courts are called upon all the time to decide difficult questions about whether state legislatures or Congress have violated other important constitutional values like, taking the First Amendment as just one example, the right to free speech or free exercise of religion. When we find that they have done so, it doesn’t exactly east those lawmakers in the best of light.
It is also important to note that affirming the finding of discriminatory purpose
A judge who agrees with Judge Jones’s dissent that “partisanship, not race,” is a likely reason why the Texas Legislature 'enacted SB 14 can thus still conclude that the law was enacted with a discriminatory purpose. Jones Dissent at 246 (“No doubt Republicans would not have pressed for voter ID if they felt it would largely enhance Democrat voting.”); id. at 303 (“The law reflects party politics, not racism ... ”). If that desire for partisan advantage (or any other underlying motivation) leads a legislature to select a “course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group,”
. Even with our affirmance of the discriminatory effects finding, the purpose claim must still be resolved. Not only would a finding of discriminatory purpose lead to a different remedy with respect to the voter ID law, but it could also subject Texas to preclearance for future voting changes. 52 U.S.C. § 10302(c).
. In re Monge,
. Grogan v. W & T Offshore, Inc.,
. Steele v. Leasing Enter., Ltd.,
. Perez v. Bruister,
. Seahawk Liquidating Trust v. Certain Underwriters at Lloyds London,
. Akuna Matata Invs. Ltd. v. Texas Nom Ltd. P’ship,
. Because these cases often have such a significant impact (the instant case involves a law setting voting requirements for a state of more than 25 million people), it may be natural to be hesitant about giving a single district judge so much discretion in deciding the fate of a law. Indeed, it used to be the case that lawsuits challenging the constitutionality of a state or federal law had to be heard by three-judge panels. 28 U.S.C. §§ 2281, 2282 (repealed 1976). For better or worse, Congress did away with that system in 1976. Act of Aug. 12, 1976, Pub. L. No. 94-381, 90 Stat. 1119; see also 17A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 4235 (3d ed.) (discussing history, purpose, and current status of Congressionally required three-judge panels). With these cases now being decided by a single judge as most others are, there is no basis for altering the level of deference based on the subject matter of the case.
. In the context of private Title VII suits, discriminatory intent was the disputed issue in two of the leading Supreme Court cases emphasizing the deference that district courts are owed on questions of fact. Anderson,
. This historical practice is not limited to Texas or other southern states. In response to the growth of Irish immigrants who tended to favor Democrats, the Know-Nothing movement led to the passage of more restrictive voting laws in Connecticut, Massachusetts, and New York during the 1850s. See Alexander Kbyssar, The Right to Vote: The Contested History of Democracy in the United States 68 (rev. ed. 2009).
. Because the opening sentence of the paragraph just refers to the Texas Legislature's history of enacting discriminatory voting laws, there is no plausible reading that would allow it to incorporate prior summaries of testimony in the opinion that involve the discriminatory voting acts of a single county (Waller County), another item the majority opinion criticizes.
. The only parts of that section that refer to events "dating back hundreds of years” are a benign introductory statement that "On the heels of Reconstruction, freed slaves and other minority men were just gaining access to the right to vote,” and headings for topics like the poll tax and literacy tests that, owing to the duty of historical accuracy, list the entire period they were in existence ("1905-1970: Literacy and ‘Secret Ballot’ Restrictions”; "1902-1966: Poll Taxes”).
. The preclearance regime was still in effect when the law was enacted. DOJ denied pre-clearance, but in 2012 Texas sought a judicial determination of that question by a three-judge panel. See Texas v. Holder,
. It’s also worth again emphasizing that unlike the findings of constitutional violations we usually make in cases that present purely legal questions, affirming the district court here would not be a direct ruling from this court that the law was passed with a discriminatory purpose, only that there was evidence from which a factfinder could draw that conclusion.
. Judge Jones’s dissent states that Garza is one of only a handful of cases in recent decades finding that a law was enacted with a discriminatory purpose. Jones Dissent at 332 n.ll. Notably, it was a voting rights case from a jurisdiction not covered by the Voting Rights Act’s preclearance, requirements. See also Stabler v. Cnty. of Thurston, Neb.,
Outside the voting context where effects became challengers’ preferred claim, there are more examples of courts finding discriminatory purpose, mostly in the area of school desegregation and housing. See, e.g., United States v. City of Yonkers,
. Governor: Texas (Abbott vs. Davis) — Exit Polls (2014), CNN: 2014 Election Center,http://www.cnn.com/election/2014/results/ state/TX/governor/.
. Pers. Adm'r of Massachusetts v. Feeney,