In 2011, Texas ("the State") passed Senate Bill 14 ("SB 14"), which requires individuals to present one of several forms of photo identification in order to vote. See Act of May 16, 2011, 82d Leg., R.S., ch. 123, 2011 Tex. Gen. Laws 619. Plaintiffs filed suit challenging the constitutionality and legality of the law. The district court held that SB 14 was enacted with a racially discriminatory purpose, has a racially discriminatory effect, is a poll tax, and unconstitutionally burdens the right to vote. See Veasey v. Perry, 71 F.Supp.3d 627, 633 (S.D. Tex. 2014). The State appealed from that decision, and a panel of our court affirmed in part, vacated in part, and remanded the case for further findings. See Veasey v. Abbott, 796 F.3d 487, 493 (5th Cir. 2015), reh'g en banc granted, 815 F.3d 958 (5th Cir. 2016). The State filed a petition for this court to rehear the case en banc, which we granted.
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(i) (West Supp. 2014). Other persons may vote by provisional ballot without a photo ID if they file affidavits either asserting a religious objection to being photographed or asserting that their SB 14 ID was lost or destroyed as a result of a natural disaster occurring within 45 days of casting a ballot. Id. § 65.054. Additionally, voters who will be 65 or older as of the date of the election may vote early by mail. Id. § 82.003.
If a voter is unable to provide SB 14 ID at the poll, the voter can cast a provisional ballot after executing an affidavit stating that the voter is registered and eligible to vote. Id. § 63.001(a), (g). The vote counts if the voter produces SB 14 ID to the county registrar within six days of the election. Id. § 65.0541.
SB 14 requires county registrars to inform applicants of the new voter ID requirements when issuing voter registration certificates, id. § 15.005, and requires both the Secretary of State and voter registrar
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:
Veasey v. Perry, 71 F.Supp.3d at 633. Shortly before in-person early voting was scheduled to begin for the November 2014 elections, the district court "enter[ed] a permanent and final injunction against enforcement of the voter identification provisions [of SB 14], Sections 1 through 15 and 17 through 22."
In October 2014, the State appealed the district court's final judgment, and a panel of this court granted the State's emergency motion for stay pending appeal, grounding its decision primarily in "the importance of maintaining the status quo on the eve of an election." Veasey v. Perry, 769 F.3d 890, 895 (5th Cir. 2014). Plaintiffs filed emergency motions before the Supreme Court, seeking to have this court's stay vacated. The Supreme Court denied these motions to vacate the stay of the district court's judgment. See Veasey v. Perry, ___ U.S. ___, 135 S.Ct. 9, 190 L.Ed.2d 283 (2014). Therefore, this court's stay of the district court's injunction remained in place, and SB 14 continues to be enforced.
On May 27, 2015, after oral argument was heard by the panel that initially considered this appeal, Senate Bill 983 ("SB 983") was signed into law, eliminating the fee "associated with searching for or providing a record, including a certified copy of a birth record, if the applicant [for the record] states that the applicant is requesting the record for the purpose of obtaining an election identification certificate." Act of May 25, 2015, 84th Leg., R.S., ch. 130, 2015 Tex. Sess. Laws Serv. Ch. 130 (codified as an amendment to TEX. HEALTH & SAFETY CODE § 191.0046(e)) (hereinafter "SB 983"). SB 983 became effective immediately. Id. §§ 2-3 (codified as note to TEX. HEALTH & SAFETY CODE § 191.0046); see also S.J. of Tex., 84th Leg., R.S., 1449-50 (2015) (reporting unanimous passage out of the Texas Senate); H.J. of Tex., 84th Leg., R.S., 4478-79 (2015) (reporting passage by 142 to 0, with one member absent, in the Texas House). SB 983 provides that "a local registrar or county clerk who issues a birth record" required for an EIC that would otherwise be entitled to collect a fee for that record "is entitled to payment of the amount from the [D]epartment [of State Health Services]." Act of May 25, 2015, 84th Leg., R.S., ch. 130 (codified as an amendment to TEX. HEALTH & SAFETY CODE § 191.0046(f)). SB 983 did not appropriate funds to spread public awareness about the free birth records. The parties addressed the potential effect of SB 983 on their claims
Considering the State's appeal from the district court's judgment, the panel opinion held that the district court committed legal errors in conducting its discriminatory purpose analysis; therefore, it vacated that portion of the district court's opinion and remanded the case for further proceedings. See Veasey, 796 F.3d at 493, 498. Noting that the finding on remand might be different, the panel opinion addressed the Plaintiffs' other claims. Id. at 493. It affirmed the district court's finding that SB 14 has a discriminatory effect in violation of Section 2 of the Voting Rights Act and remanded for consideration of the proper remedy. Id. It vacated the district court's holding that SB 14 constitutes a poll tax and rendered judgment on that claim for the State. Id. Finally, the panel opinion vacated the district court's determination that SB 14 violates the First and Fourteenth Amendments of the U.S. Constitution, pursuant to the doctrine of constitutional avoidance, and dismissed those claims. Id.
While this case was awaiting oral argument before our full court, in light of the upcoming elections in November 2016, the parties applied to the Supreme Court to vacate the stay of the district court's injunction that a panel of this court originally entered in October 2014. The Supreme Court denied the motion to vacate the stay but noted that if, by July 20, 2016, this court had "neither issued an opinion on the merits of the case nor issued an order vacating or modifying the current stay order, an aggrieved party [could] seek interim relief from th[e Supreme] Court by filing an appropriate application." Veasey v. Abbott, ___ U.S. ___, 136 S.Ct. 1823, 194 L.Ed.2d 828 (2016).
The State appeals the district court's holding that SB 14 was passed with a discriminatory purpose in violation of the Fourteenth and Fifteenth Amendments and Section 2 of the Voting Rights Act. We review this determination for clear error. "If the district court's findings are plausible in light of the record viewed in its entirety, we must accept them, even though we might have weighed the evidence differently if we had been sitting as a trier of fact." Price v. Austin Indep. Sch. Dist., 945 F.2d 1307, 1312 (5th Cir. 1991) (citation omitted). However, when the district court's "findings are infirm because of an erroneous view of the law, a remand is the proper course unless the record permits only one resolution of the factual issue," Pullman-Standard v. Swint, 456 U.S. 273, 292, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982), in which case reversing and rendering is the proper course, Meche v. Doucet, 777 F.3d 237, 246-47 (5th Cir.),
We apply the framework articulated in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265-68, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), to determine whether SB 14 was passed with a discriminatory purpose. Although the district court properly cited the Arlington Heights framework, we conclude that some "findings are infirm," necessitating a remand on this point. Pullman-Standard, 456 U.S. at 292, 102 S.Ct. 1781. Since the record does not "permit[] only one resolution of the factual issue," and there is evidence that could support the district court's finding of discriminatory purpose, we must remand for a re-weighing of the evidence.
"Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause." Arlington Heights, 429 U.S. at 265, 97 S.Ct. 555. However, "[r]acial discrimination need only be one purpose, and not even a primary purpose," of an official action for a violation to occur. United States v. Brown, 561 F.3d 420, 433 (5th Cir. 2009) (citation omitted). "Legislative motivation or intent is a paradigmatic fact question." Prejean v. Foster, 227 F.3d 504, 509 (5th Cir. 2000) (citing Hunt v. Cromartie, 526 U.S. 541, 549, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999)). "Proving the motivation behind official action is often a problematic undertaking." Hunter v. Underwood, 471 U.S. 222, 228, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985).
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, 456 U.S. at 292, 102 S.Ct. 1781.
One type of evidence on which the district court relied in seeking to discern the Legislature's intent was Texas's history of enacting racially discriminatory voting measures. See Veasey v. Perry, 71 F.Supp.3d at 633-36. It noted, for instance, Texas's use of all-white primaries from 1895-1944, literacy tests and secret ballots from 1905-1970, and poll taxes from 1902-1966. Id. at 634-35. While the record also contains more contemporary examples, see id. at 635, 636 & n.23, the district court relied too heavily on the evidence of State-sponsored discrimination dating back hundreds of years, cf. Shelby Cty. v. Holder, ___ U.S. ___, 133 S.Ct. 2612, 2628, 186 L.Ed.2d 651 (2013) (noting that "history did not end in 1965").
We also recognize that not all "history" was "long ago" and that there were some more contemporary examples of discrimination identified by the Plaintiffs in the district court. The evidence of relatively recent discrimination cited by the district court is more probative of discriminatory intent. See, e.g., Veasey v. Perry, 71 F.Supp.3d at 635, 636 & n.23. Nonetheless, several of the relatively contemporary examples of discrimination identified by the district court are limited in their probative value in connection with discerning the Texas Legislature's intent. For example, in a state with 254 counties, we do not find the reprehensible actions of county officials in one county (Waller County) to make voting more difficult for minorities to be probative of the intent of legislators in the Texas Legislature, which consists of representatives and senators from across a geographically vast, highly populous, and very diverse state. See Miss. State Chapter, Operation Push, Inc. v. Mabus (Operation Push), 932 F.2d 400, 409-10 (5th Cir. 1991) (stating that "[e]vidence of disparate registration rates or similar registration rates in individual counties could not provide dispositive support" for the claim that plaintiffs could not participate in the political process at the state level (emphasis added)).
Additionally, the district court relied on contemporary examples of statewide discrimination evidenced by two redistricting cases that, taken alone, form a thin basis for drawing conclusions regarding contemporary State-sponsored discrimination. The first, Bush v. Vera, 517 U.S. 952, 976, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996), found that a Texas redistricting plan to create three majority-minority districts violated the Equal Protection Clause of the Fourteenth Amendment because race was the predominant factor, the plans ignored traditional redistricting criteria, and their shapes could only be explained as the product of unconstitutional racial gerrymandering. The second case found
The district court's reliance on post-enactment speculation by opponents of SB 14 was also misplaced. Discerning the intent of a decisionmaking body is difficult and problematic. Hunter, 471 U.S. at 228, 105 S.Ct. 1916. To aid in this task, courts may evaluate "contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports. In some extraordinary instances the members might be called to the stand at trial to testify concerning the purpose of the official action ...." Arlington Heights, 429 U.S. at 268, 97 S.Ct. 555. Where the court is asked to identify the intent of an entire state legislature, as opposed to a smaller body, the charge becomes proportionately more challenging. Hunter, 471 U.S. at 228, 105 S.Ct. 1916. As United States v. O'Brien explains:
391 U.S. 367, 383-84, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (footnote omitted).
To ascertain the Texas Legislature's purpose in passing SB 14, the district court mistakenly relied in part on speculation by the bill's opponents about proponents' motives (rather than evidence of their statements and actions). For instance, it credited the following: Representative Hernandez-Luna's simple assertion that two city council seats in Pasadena, Texas were made into at-large seats "in order to dilute the Hispanic vote and representation"; repeated testimony that the 2011 session was imbued with anti-immigrant sentiment;
"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, 560 U.S. 474, 486, 130 S.Ct. 2499, 177 L.Ed.2d 1 (2010) ("And whatever interpretive force one attaches to legislative history, the Court normally gives little weight to statements, such as those of the individual legislators, made after the bill in question has become law."); see also Edwards v. Aguillard, 482 U.S. 578, 596 n.19, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987) ("The Court has previously found the post-enactment elucidation of the meaning of a statute to be of little relevance in determining the intent of the legislature contemporaneous to the passage of the statute."). While probative in theory, even those (after-the-fact) stray statements made by a few individual legislators voting for SB 14 may not be the best indicia of the Texas Legislature's intent. See Operation Push, 932 F.2d at 408 (finding "isolated and ambiguous statements made by ... legislators" were not compelling evidence of that law's discriminatory purpose); Jones v. City of Lubbock, 727 F.2d 364, 371 n.3 (5th Cir. 1984) (refusing to "judge intent from the statements [made by] ... a single member" of the legislative body).
Because the district court relied upon evidence we conclude is infirm, the district court's opinion cannot stand as written. The next question, then, is whether we reverse and render judgment for the State or remand to the district court with instructions.
While the district court's analysis contained some legal infirmities, the record
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, 102 S.Ct. 1781. The Pullman-Standard panel of this court had concluded that the district court erred by not considering all relevant evidence and suggested that the district court might have reached a different conclusion had it properly considered the evidence. Id. at 284-85, 292, 102 S.Ct. 1781. The Supreme Court admonished that "discriminatory intent ... is a factual matter subject to the clearly-erroneous standard... [and] when a district court's finding on such an ultimate fact is set aside for an error of law, the court of appeals is not relieved of the usual requirement of remanding for further proceedings to the tribunal charged with the task of factfinding in the first instance." Id. at 293, 102 S.Ct. 1781. The Court expressed concern that this court would ignore such an "elementary" principle and instructed that it is not the purview of this court to produce an "independent consideration of the totality of the circumstances." Id. at 291-92, 102 S.Ct. 1781.
Pursuant to this clear guidance, our inquiry is whether "the record permits of only one resolution of the factual issue." Id. at 292, 102 S.Ct. 1781. We conclude that it does not.
First, although the record does not contain direct evidence that the Texas Legislature passed SB 14 with a racially invidious purpose, this does not mean there is no evidence that supports a finding of discriminatory intent. "[D]iscriminatory intent need not be proved by direct evidence." Rogers v. Lodge, 458 U.S. 613, 618, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982); Brown, 561 F.3d at 433 ("To find discriminatory intent, direct or indirect circumstantial evidence, including the normal inferences to be drawn from the foreseeability of defendant's actions may be considered." (citation omitted)). Instead, courts may consider both circumstantial and direct evidence of intent as may be available. Arlington Heights, 429 U.S. at 266, 97 S.Ct. 555.
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, 411 U.S. 792, 804, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (establishing that where an employer has offered a race-neutral reason for an adverse employment action, the employee is entitled to show that the employer's stated reason is in fact pretext); see, e.g., Evans v. City of Houston, 246 F.3d 344, 354-56 (5th Cir. 2001) (holding that a plaintiff had provided sufficient circumstantial evidence that an employer's reasons for demoting her were pretextual to create a genuine dispute of material fact regarding whether she was wrongfully demoted and reversing the district court's grant of summary judgment for the employer). As we were recently reminded in Foster v. Chatman, ___ U.S. ___, 136 S.Ct. 1737, 1751-52, 1754-55, 195 L.Ed.2d 1 (2016), people hide discriminatory intent behind seemingly legitimate reasons. If Jane were fired from an at-will job for being late once, we might conclude that firing was legitimate, until we learned that Joe, who has the very same job as Jane, was late numerous times with no penalty. Cf. Evans, 246 F.3d at 354-56. Context matters.
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:
Here, too, there is evidence that could support a finding that the Legislature's race-neutral reason of ballot integrity offered by the State is pretextual. This bill was subjected to radical departures from normal procedures. Consideration of procedural departures is a difficult inquiry, because on the one hand, "[d]epartures from the normal procedural sequence ... might afford evidence that improper purposes are playing a role." Arlington Heights, 429 U.S. at 267, 97 S.Ct. 555. On the other hand, "objection[s] to typical aspects of the legislative process in developing legislation," such as increasing the number of votes a law requires for passage, may not demonstrate an invidious intent, standing alone. Cf. Operation Push, 932 F.2d at 408-09, 408 n.6. Yet, context matters, and evidence of procedural departures provides one potential link in the circumstantial totality of evidence the district court must consider.
In this case, for example, the procedural maneuvers employed by the Texas Legislature and the State occurred, as the district court notes, only after repeated attempts to pass voter identification bills were blocked through countervailing procedural
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, 456 U.S. at 292, 102 S.Ct. 1781. We cannot say that the district court had to simply accept that legislators were really so concerned with this almost nonexistent problem. Against a backdrop of warnings that SB 14 would have a disparate impact on minorities and would likely fail the (then extant) preclearance requirement, amendment after amendment was rejected. Veasey v. Perry, 71 F.Supp.3d at 650-52, 698, 701-02, 708-10. While cloaking themselves in the mantle of following Indiana's voter ID law, which had been upheld against a (different) challenge in Crawford, the proponents of SB 14 took out all the ameliorative provisions of the Indiana law. See, e.g., id. at 651-52 (noting the Texas House stripped an indigency exception that had been added to SB 14 in the Texas Senate); cf. Frank v. Walker (Frank II), 819 F.3d 384, 386-87 (7th Cir. 2016) (noting that an indigency exception may be necessary for voters who face "high hurdles" to obtaining required photo identification and that the Indiana law the Court considered in Crawford contained such an indigency exception).
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 requirements
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, 945 F.2d at 1317 ("[T]he appellate court may not substitute its judgment for the district court's."). Thus, since there is more than one way to decide this case, and the right court to make those findings is the district court, we must remand.
Time is short, though. The Supreme Court has, in effect, set a July 20 deadline for this court to act, after which it will entertain motions for relief. Veasey v. Abbott, 136 S.Ct. at 1823. Time is also needed to communicate those modifications to the wider public so as not to disrupt the election process. Indeed, among the findings made by the district court was that the public education campaign for SB 14 at the time of trial was "grossly insufficient." Veasey v. Perry, 71 F.Supp.3d at 649. Equally necessary in the time left before early voting begins in late October is an adequate campaign to explain not only SB 14 but also court-ordered amendments to voter identification rules. We are mindful that future litigation and appeals to this court are also distinct possibilities.
Additionally, we recognize the burden our majority opinion places on the district court to implement a remedy for the discriminatory effect violation with so little time, see infra Part II.B. Therefore, to avoid disruption of the upcoming election, we rely on equitable principles in concluding that the district court should first focus on fashioning interim relief for the discriminatory effect violation in the months leading up to the November 2016 general election. The primary concern of this court and the district court 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, 549 U.S. 1, 5-6, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006) (election permitted to continue despite unresolved issues related to disenfranchisement); see also Reynolds v. Sims, 377 U.S. 533, 585, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (noting that a court may withhold immediate relief so as not to disturb a forthcoming election). If the district court concludes that SB 14 was passed with a discriminatory intent, the district court should fashion an appropriate remedy in accord with its findings; provided, however, that any remedy will not be made effective until after the November 2016 election.
Plaintiffs allege that SB 14 has a discriminatory effect in violation of Section 2 of the Voting Rights Act, which proscribes any "voting qualification or prerequisite to voting or standard, practice, or procedure ... which results in a denial or abridgement of the right of any citizen ... to vote on account of race or color." 52 U.S.C. § 10301(a). Unlike discrimination claims brought pursuant to the Fourteenth Amendment, Congress has clarified that violations of Section 2(a) can "be proved by showing discriminatory effect alone." Thornburg v. Gingles, 478 U.S. 30, 35, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986); see also 52 U.S.C. § 10301(b).
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,
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:
League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 240 (4th Cir. 2014) (citations and internal quotation marks omitted), cert. denied, ___ U.S. ___, 135 S.Ct. 1735, 191 L.Ed.2d 702 (2015); see also Husted, 768 F.3d at 554.
The first part of this two-part framework inquires about the nature of the burden imposed and whether it creates a disparate effect in that "members of the protected class have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice" — this encompasses Section 2's definition of what kinds of burdens deny or abridge the right to vote. Compare 52 U.S.C. § 10301 (proscribing denial or abridgement of the right to vote and defining how a violation of Section 2 may be established), with League of Women Voters, 769 F.3d at 240
The second part of the two-part framework draws on the Supreme Court's guidance in Gingles. See League of Women Voters, 769 F.3d at 240 (quoting Gingles, 478 U.S. at 47, 106 S.Ct. 2752); Husted, 768 F.3d at 554 (quoting Gingles, 478 U.S. at 47, 106 S.Ct. 2752). This second part of the framework provides the requisite causal link between the burden on voting rights and the fact that this burden affects minorities disparately because it interacts with social and historical conditions that have produced discrimination against minorities currently, in the past, or both. See Gingles, 478 U.S. at 47, 106 S.Ct. 2752 ("The essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.").
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:
Id. at 36-37, 106 S.Ct. 2752 (quoting S. Rep. No. 97-417, at 28-29 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 206-07). Two additional considerations are:
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, 106 S.Ct. 2752 (quoting S. Rep. No. 97-417, at 29). Not every factor will be relevant in every case. These factors provide salient guidance from Congress and the Supreme Court on how to examine the current effects of past and current discrimination and how those effects interact with a challenged law. Id.; League of Women Voters, 769 F.3d at 240, 245; Husted, 768 F.3d at 554.
The State argues that the Gingles factors are inapposite in this context, and that we should apply the two-part test as it was applied in the Seventh Circuit in Frank v. Walker, 768 F.3d 744, 754-55 (7th Cir. 2014), cert. denied, ___ U.S. ___, 135 S.Ct. 1551, 191 L.Ed.2d 638 (2015). The State also argues that if we apply the Gingles factors and two-part test and find a Section 2 violation in this case, all manner of neutral election laws may be struck down. We disagree that the Gingles factors are inapposite here, and we have good reasons to believe that the State's gloomy forecast is unsound.
Use of the two-factor test and the Gingles factors limits Section 2 challenges to those that properly link the effects of past and current discrimination with the racially disparate effects of the challenged law. Applying the Gingles factors involves engaging in a multi-factor analysis, under which no one factor has determinative weight. Gingles, 478 U.S. at 45, 106 S.Ct. 2752. Certainly, this analysis is fact dependent. Yet, in many similar contexts, we frequently employ multi-factor, totality-of-the-circumstances analyses that are highly fact bound. See, e.g., United States v. Batamula, 823 F.3d 237, 240-42 (5th Cir. 2016) (en banc) (analyzing the totality of the circumstances to determine whether a defendant was prejudiced by a lack of competent advice during the guilty plea process); Cannata v. Catholic Diocese of Austin, 700 F.3d 169, 175-76 (5th Cir. 2012) (adopting a "totality-of-the-circumstances" analysis to determine whether an employee is a minister for purposes of the ministerial exception and abrogating the three-part test previously employed by this court, because the Supreme Court specifically rejected the use of a rigid, bright-line test for this issue); Stewart v. Miss. Transp. Comm'n, 586 F.3d 321, 330-31 (5th Cir. 2009) (applying multi-factor tests to analyze whether a supervisor created a hostile work environment or retaliated against an employee for reporting sexual harassment, and in analyzing the last factor of the hostile work environment test, looking to the totality of the circumstances to determine whether the harassment was sufficiently severe and pervasive to alter employment conditions).
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, 501 U.S. 380, 406, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991) (Scalia, J., dissenting); Allen v. State Bd. of Elections, 393 U.S. 544, 565-66, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969). We think the factors applied to the facts are a proper limiting principle, and find this analysis faithful to the purposes of the Voting Rights Act.
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, 768 F.3d at 754-55. The Seventh Circuit ultimately did not apply the second step of the two-part analysis because it concluded that the plaintiffs failed to show that Wisconsin's law imposed a discriminatory burden that gave minority voters less opportunity to participate in the political process at the first step of the analysis. Id. at 753, 755. Our record contains more particularized evidence of the discriminatory burden imposed by SB 14 than did the record in Frank.
To the extent that the State argues causality may be established only where there is a finding that state action caused the social and historical conditions begetting discrimination, see Frank, 768 F.3d at 755, we need not and do not decide that issue. Unlike in Frank, the district court in this case found both historical and contemporary examples of discrimination in both employment and education by the State of Texas, and it attributed SB 14's disparate impact, in part, to the lasting effects of that State-sponsored discrimination. See Veasey v. Perry, 71 F.Supp.3d at 636, 666-67. Thus, even assuming this limitation from Frank applied, the evidence here meets that test.
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. 553 U.S. at 191, 194-97, 128 S.Ct. 1610. We do not deny that the State in this case may pursue those interests, nor that they are strong and valid interests. However, that acknowledgement does not address the additional as-applied challenges Plaintiffs make in this case. See id. at 199-202, 128 S.Ct. 1610. Even the Seventh Circuit has acknowledged that Crawford does not extend as far as the State argues, holding that Frank "did not decide that persons unable to get a photo ID with reasonable effort lack a serious grievance." Frank II, 819 F.3d at 386. The Seventh Circuit in this later iteration of Frank did not consider a Section 2 challenge. Id. at 385-86; see also Frank v. Walker, 141 F.Supp.3d 932, 934-36 (E.D. Wis. 2015), vacated in part by Frank II, 819 F.3d 384. But the court noted that neither Crawford nor Frank foreclose the argument that an indigency exception may be necessary to prevent an unconstitutional burden on plaintiffs hindered from voting and obtaining photo IDs due to financial hardship and other factors like those exhibited by the Plaintiffs in this case.
Having established that the two-part analysis and Gingles factors are appropriate standards for examining Plaintiffs' Section 2 claim,
The district court found that 608,470 registered voters, or 4.5% of all registered voters in Texas, lack SB 14 ID. Veasey v. Perry, 71 F.Supp.3d at 659. Of those, 534,512 voters did not qualify for a disability exemption from SB 14's requirements. Id. The latter figure, which was derived by comparing the Texas Election Management System with databases containing evidence of who possesses SB 14 ID, is known as the "No-Match List."
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 testimony that 21.4% of eligible voters earning less than $20,000 per year lack SB 14 ID, compared to only 2.6% of voters earning between $100,000 and $150,000 per year. Id. at 664. Lower income respondents were also more likely to lack the underlying documents to get an EIC. Id. Dr. Jane Henrici, an anthropologist and professorial lecturer at George Washington University, explained that:
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, 556 U.S. 1, 17-18, 129 S.Ct. 1231, 173 L.Ed.2d 173 (2009), the State argues that the Supreme Court foreclosed using statistical analysis to determine the racial composition of a group of voters. That is a mischaracterization. Strickland cautions against adopting standards that require judges to make complicated, race-based predictions in redistricting cases, a concern that is not implicated here. Id. It is well within the district court's purview to assess whether minorities are disproportionately affected by a change in the law based on statistical analyses. See, e.g., Operation Push, 932 F.2d at 410-11. Using accepted statistical methodologies to estimate the racial composition of Texas voters does not require the type of race-based predictions that the Court referenced in Strickland.
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
The individual Plaintiffs testified that they faced many specific burdens in attempting to obtain SB 14 ID or vote. The district court found that "[t]he Plaintiffs [d]emonstrate[d] the [i]mpact" of SB 14 along several axes, including: (1) the difficulty of obtaining an EIC and voting with the proper ID because of Texas's poor implementation of this program; (2) the cost of underlying documents necessary to obtain an EIC or other SB 14 ID; (3) difficulties with delayed, nonexistent, out-of-state, or amended birth certificates due to nontraditional births and errors on birth certificates; (4) long distances and other travel issues that made getting to a registrar and DPS office problematic for many Plaintiffs; (5) a strict disability exemption
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 Espinoza use family and friends for transportation, but they each face "a 60-mile roundtrip ride to the nearest DPS station." Id.
The State failed to contest any of this evidence, except to suggest that these Plaintiffs could vote by mail. The district court did not clearly err in finding that mail-in voting is not an acceptable substitute for in-person voting in the circumstances presented by this case.
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.
We next consider the district court's finding that SB 14 "produces a discriminatory result that is actionable because [it]... interact[s] with social and historical conditions in Texas to cause an inequality in the electoral opportunities enjoyed by African-Americans and Hispanic voters." Id. at 698. The district court found Gingles factors 1, 2, 5, 6, 7, 8, and 9 probative. Id.
As part of this "searching practical evaluation of the past and present reality," Gingles, 478 U.S. at 45, 106 S.Ct. 2752 (citation omitted), the district court found that Texas's history of discrimination in voting acted in concert with SB 14 to limit minorities' ability to participate in the political process. We repeat Shelby County's admonishment that "history did not end in 1965," 133 S.Ct. at 2628, and emphasize that contemporary examples of discrimination are more probative than historical examples. However, even long-ago acts of official discrimination give context to the analysis,
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.
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, 478 U.S. at 53 n.21, 106 S.Ct. 2752). For support, the district court noted that the gap between Anglo and Latino Republican support is between 30 and 40 percentage points, the Supreme Court has previously acknowledged the existence of racially polarized voting in Texas, and that in other litigation, Texas has conceded that racially polarized voting exists in 252 of its 254 counties. Id. at 637-38. The State did not contest these findings before the district court.
Next, the district court appraised "[t]he extent to which members of the minority group ... bear the effects of discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process." Veasey v. Perry, 71 F.Supp.3d at 696 (citing Gingles, 478 U.S. at 45, 106 S.Ct. 2752). The disparity in education, employment, and health out-comes between Anglos, African Americans, and Hispanics is manifest by the fact that the 29% of African Americans and 33% of Hispanics in Texas live below the poverty line compared to 12% of Anglos. Id. at 665. The unemployment rate for Anglos is also significantly lower. At trial, the court found that 6.1% of Anglos were unemployed compared to 8.5% of Hispanics and 12.8% of African Americans. Id. at 666. Furthermore, 91.7% of Anglo 25-year-olds in Texas have graduated from high school, compared to 85.4% of African Americans, and only 58.6% of Hispanics. Id. Anglos are also significantly more likely to have completed college — 33.7% of Anglos hold a bachelor's degree, compared to 19.2% of African Americans and 11.4% of Hispanics. Id. Finally, the district court credited testimony that African Americans and Hispanics are more likely than Anglos to report being in poor health, and to lack health insurance. Id. at 666-67.
Importantly, the district court also found that "[t]hese socioeconomic disparities have hindered the ability of African-Americans and Hispanics to effectively participate in the political process. Dr. Ansolabehere testified that these minorities register and turn[] out for elections at rates that lag far behind Anglo voters."
The district court ultimately found:
Veasey v. Perry, 71 F.Supp.3d at 698 (emphasis added).
Again, the State does not dispute the underlying data or methodologies. Instead, the State objects that the district court must have found some evidence that SB 14 directly caused a reduction in turnout. The State insists that the district court erred by failing to ask whether SB 14 causes a racial voting disparity, rather than a disparity in voter ID possession. We have never required such a showing. Section 2 asks whether a standard, practice, or procedure results in "a denial or abridgement of the right ... to vote." 52 U.S.C. § 10301(a). Abridgement is defined as "[t]he reduction or diminution of 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, 71 F.Supp.3d at 655 (discussing the effect of President Obama's candidacy on voter turnout). That does not mean the voters kept away were any less disenfranchised. Requiring a showing of lower turnout also presents problems for pre-election challenges to voting laws, when no such data is yet available. More fundamentally, no authority supports requiring a showing of lower turnout, since abridgement of the right to vote is prohibited along with denial. U.S. CONST. amend. XV; 52 U.S.C. § 10301(a). Illuminating this last point is the State's answer at oral argument to a question about whether its proposed Section 2 effects test would prohibit literacy tests (if they were not otherwise specifically prohibited) from being imposed as a condition for voting.
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.
While the existence of racial appeals in political campaigns is a factor that may be indicative of a law's disparate impact, see Gingles, 478 U.S. at 40, 106 S.Ct. 2752, it is not highly probative here (and racial appeals seem to have been used by both minorities and non-minorities). The district court found that such appeals still exist in Texas and cited anecdotal evidence to support its finding. See Veasey v. Perry, 71 F.Supp.3d at 638-39. While we do not overturn the underlying factual finding, we do not agree that such anecdotal evidence of racial campaign appeals shows that SB 14 denies or abridges the right to vote.
The extent to which minority candidates are elected to public office also contextualizes the degree to which vestiges of discrimination continue to reduce minority participation in the political process. See Gingles, 478 U.S. at 45, 106 S.Ct. 2752. The district court found that African Americans comprise 13.3% of the population in Texas, but only 1.7% of all Texas elected officials are African American. Veasey v. Perry, 71 F.Supp.3d at 638. Similarly, Hispanics comprise 30.3% of the population but hold only 7.1% of all elected positions. Id. Within the Texas Legislature, however, both groups fare better — African Americans hold 11.1% of seats in the Legislature while Hispanics hold 21.1% of seats. Id. Again, the State does not contest these findings. Id.
The district court also found that Texas's history of discrimination, coupled with SB 14's effect on minorities in Texas and the Legislature's response to ameliorative amendments, demonstrated a lack of responsiveness to minority needs by elected officials. See Gingles, 478 U.S. at 45, 106 S.Ct. 2752. The evidence supports the district
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.
The district court concluded that the policies underlying SB 14's passage were only tenuously related to the State's interests in preventing fraud and increasing voter confidence in elections. We do not deny that the State's articulated objectives are legitimate state interests, as the Supreme Court has made clear. See Crawford, 553 U.S. at 191, 128 S.Ct. 1610. Yet, the articulation of a legitimate interest is not a magic incantation a state can utter to avoid a finding of disparate impact. Even under the least searching standard of review we employ for these types of challenges, there cannot be a total disconnect between the State's announced interests and the statute enacted. See St. Joseph Abbey v. Castille, 712 F.3d 215, 225-26 (5th Cir. 2013) (holding there was an impermissible "disconnect" between the state's expressed interests and the challenged regulations and noting that "[t]he great deference due state economic regulation does not demand judicial blindness to the history of a challenged rule or the context of its adoption[,] nor does it require courts to accept nonsensical explanations [from the state]"); cf. Inclusive Cmtys. Project, Inc. v. Tex. Dep't of Hous. & Cmty. Affairs, 747 F.3d 275, 282 (5th Cir. 2014) (permitting a plaintiff to prevail on disparate impact claim under the Fair Housing Act where he "prov[es] that the [state's] substantial, legitimate, nondiscriminatory interests supporting the challenged practice could be served by another practice that has a less discriminatory effect"), aff'd, ___ U.S. ___, 135 S.Ct. 2507, 192 L.Ed.2d 514 (2015). The Court in Gingles and the Senate that passed the 1982 Amendments to the Voting Rights Act acknowledged as much by including tenuousness among the factors to be considered. See Gingles, 478 U.S. at 45, 106 S.Ct. 2752. Along with elected officials' lack of responsiveness to minority needs, a tenuous fit between the expressed policy and the provisions of the law bolsters the conclusion that minorities are not able to equally
The district court found that "the stated policies behind SB 14 are only tenuously related to its provisions." Veasey v. Perry, 71 F.Supp.3d at 698. The State is entitled to make policy choices about when and how it will address various priorities. But in this case, the provisions of SB 14 fail to correspond in any meaningful way to the legitimate interests the State claims to have been advancing through SB 14. For example, the Legislature claimed to model its law after those from Indiana, Georgia, Wisconsin, and other states that included many more forms of acceptable identification, plus indigency exceptions and far more extensive educational campaigns. Yet, the Legislature rejected many ameliorative amendments that would have brought SB 14 in line with those states' voter ID laws. See id. at 643, 658. The option of mail-in voting also showcases the dubious connection between the State's interests and SB 14's provisions. In order to prevent voter fraud, the State has pushed more vulnerable elderly voters away from in-person voting — a form of voting with little proven incidence of fraud — and toward mail-in voting, which the record shows is far more vulnerable to fraud, particularly among the elderly. Id. at 639-41, 653. In fact, SB 14 does nothing to address the far more prevalent issue of fraudulent absentee ballots. Id. at 641.
The district court likewise found that the Legislature's expressed concerns about undocumented immigrants and noncitizens voting were misplaced. It credited testimony that undocumented immigrants are unlikely to vote as they try to avoid contact with government agents for fear of being deported. Id. at 654. At least one Representative who voted for SB 14 conceded that he had no evidence to substantiate his fear of undocumented immigrants voting. Id. Additionally, the district court found that SB 14 would not prevent noncitizens from voting, since noncitizens can legally obtain a Texas driver's license or concealed handgun license, two forms of SB 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
In light of its findings regarding SB 14's disparate impact and its application of the Gingles factors, the district court held that SB 14 acted in concert with current and historical conditions of discrimination to diminish African Americans' and Hispanics' ability to participate in the political process. Id. at 695-98. We conclude that the district court performed the "intensely local appraisal" required by Gingles, 478 U.S. at 79, 106 S.Ct. 2752. The district court clearly delineated each step of its analysis, finding that:
Veasey v. Perry, 71 F.Supp.3d at 664.
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, 768 F.3d at 755 (reasoning that the discrimination affecting minorities should be linked to the state under the second part of the two-part analysis). The evidence in this record suffices to meet even this higher standard as enunciated in Frank. Id.
We conclude that the district court did not clearly err in determining that SB 14 has a discriminatory effect on minorities' voting rights in violation of Section 2 of the Voting Rights Act. As discussed below, we remand for a consideration of the appropriate remedy in light of the impending general election.
Plaintiffs argue that SB 14 also unconstitutionally burdens their right to vote, as forbidden by the First and Fourteenth Amendments. We decline to decide this question, under the "well established principle governing the prudent exercise of this [c]ourt's jurisdiction that normally th[is c]ourt will not decide a constitutional question if there is some other ground upon which to dispose of the case." Escambia Cty. v. McMillan, 466 U.S. 48, 51, 104 S.Ct. 1577, 80 L.Ed.2d 36 (1984). Since the majority of the court affirms the district court's determination that SB 14 has a discriminatory effect under Section 2 of the Voting Rights Act, Plaintiffs will be entitled to the same relief they could access if they prevailed on these First and Fourteenth Amendment claims. See Ketchum v. Byrne, 740 F.2d 1398, 1409-10 (7th Cir. 1984) ("There appears to be no difference in the practical result or in the available remedy regardless of how the resulting discrimination is characterized. We therefore shall not explicitly decide the issue of a fourteenth amendment violation...."); cf. Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 205-06, 129 S.Ct. 2504, 174 L.Ed.2d 140 (2009). Put another way, the rights and remedies are intertwined.
Accordingly, it is unnecessary for the en banc court to address this issue, and we need not and do not decide whether SB 14 violates the First and Fourteenth Amendments by placing an unconstitutional burden on the right to vote. See Merced v. Kasson, 577 F.3d 578, 586-87 (5th Cir. 2009); Jordan v. City of Greenwood, 711 F.2d 667, 668-70 (5th Cir. 1983) (quoting Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 89 L.Ed. 101 (1944)). We therefore vacate the district court's determination on this issue and dismiss Plaintiffs' First and Fourteenth Amendment claims.
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, 677 F.3d 383, 408-10 (9th Cir. 2012) (en banc); see also Harper v. Va. Bd. of Elections, 383 U.S. 663, 668, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) ("But we must remember that the interest of the State, when it comes to voting, is limited to the power to fix qualifications."). The indirect cost on voters born out of state does not constitute a poll tax.
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, 85 S.Ct. 1177. Rather, it drew from the State's power to set voter qualifications by requiring all voters to present a valid form of photo identification at the polls. See Gonzalez, 677 F.3d at 408. Under the Fourteenth Amendment, as the Supreme Court interpreted it in Harper, the Court has observed that a state invidiously discriminates when it imposes a cost to vote with a justification that is "irrelevant to the voter's qualifications." Crawford, 553 U.S. at 189, 128 S.Ct. 1610. Although
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. 380 U.S. at 531-32, 85 S.Ct. 1177. The Virginia constitution mandated that federal voters file a certificate of residence within a specific date range, beginning on October 1 of the year before the federal election at issue and ending on a date six months before the date of the federal election. Id. at 532, 85 S.Ct. 1177. On a notarized, witnessed certificate, the federal voter had to submit a current address and attest to: (1) being a resident of Virginia, both at the time of submission and since the date of voter registration, and (2) an intent not to move from the city or county of residence before the next general election. Id. Those voters who chose to pay federal and state poll taxes were only required to file the certificate of residence one time; those who did not pay the federal poll tax had to file a new certificate of residence in the designated time frame before each election year. Id.
Here, the State does not offer Texas voters a choice between paying a fee and undergoing an onerous procedural process. Cf. id. at 540-41, 85 S.Ct. 1177. All voters must make a trip to the DPS, local registrar, county clerk, or other government agency at some point to receive qualifying photo identification. This record reveals that Plaintiffs and those who lack both SB 14 ID and underlying documentation face more difficulty than many Texas voters in obtaining SB 14 ID. Undoubtedly, those who own vehicles, have flexible work schedules, and already possess the required documentation can more easily meet these procedural requirements than some of the Plaintiffs and others who lack these resources. Plaintiffs and others similarly
380 U.S. at 538, 85 S.Ct. 1177; see also Crawford, 553 U.S. at 198-99, 128 S.Ct. 1610 (contrasting the unconstitutionality of a requirement that voters "pay a tax or a fee to obtain a new photo identification" with a requirement that voters without ID "travel to the circuit court clerk's office within 10 days [of the election] to execute the required affidavit"). Additionally, whether the qualifying identification is a driver's license, passport, or EIC, voters need not undergo this process every election year during a specific time frame six months prior to the election, as was the case in Harman. Instead, the record indicates that an EIC remains valid for six years and must only be obtained sometime before an election.
In light of the recently-enacted SB 983, SB 14 does not impose an unconstitutional poll tax under the Fourteenth or Twenty-Fourth Amendments, nor did it impose a poll tax before SB 983's enactment. Accordingly, we vacate the district court's judgment for the Veasey Plaintiffs on their poll tax claim and render judgment in the State's favor.
After finding that SB 14 was enacted with a racially discriminatory purpose, the district court fully enjoined SB 14's implementation, with the exception of several sections of the law that do not relate to photo identification. See Veasey v. Perry, 71 F.Supp.3d at 707 & n.583. That remedy is potentially broader than the one to which Plaintiffs would be entitled if only the discriminatory effect claim were considered. Compare Crawford, 553 U.S. at 200, 203, 128 S.Ct. 1610 (noting, in the Section 2 context, that "petitioners have not demonstrated that the proper remedy — even assuming an unjustified burden on some voters — would be to invalidate the entire statute"), with City of Richmond, 422 U.S. at 378, 95 S.Ct. 2296 (holding, in the discriminatory purpose context, that "[a]n official action ... taken for the purpose of discriminating ... on account of... race has no legitimacy at all"), and Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 465-66, 471, 487, 102 S.Ct. 3187, 73 L.Ed.2d 896 (1982) (affirming the permanent injunction of a statewide initiative because its provisions were "effectively drawn for racial purposes" in violation of the Fourteenth Amendment).
"When devising a remedy to a [Section] 2 violation, the district court's `first and foremost obligation ... is to correct the Section 2 violation.'" Brown, 561 F.3d at 435 (quoting Bone Shirt v. Hazeltine, 461 F.3d 1011, 1022 (8th Cir. 2006)). Yet, any remedy "should be sufficiently tailored to the circumstances giving rise to the [Section] 2 violation," id., and to the extent possible, courts should respect a legislature's policy objectives when crafting a remedy, see Perez, 132 S.Ct. at 940-44; see also Inclusive Communities, 135 S.Ct. at 2524 ("Remedial orders in disparate-impact cases should concentrate on the elimination of the offending practice that `arbitrar[ily] ... operate[s] invidiously to discriminate on the basis of rac[e].'" (citation omitted)). In the context of redistricting,
When a statute contains a severability clause, courts must take special care to attempt to honor a legislature's policy choice to leave the statute intact. See Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 330-31, 126 S.Ct. 961, 163 L.Ed.2d 812 (2006) (holding that lower courts should not have invalidated the entire statute, but should have accounted for the legislature's policy choices and the statute's severability clause). In this case, SB 14's severability clause makes clear that the Legislature intended the photo identification system to be left intact for all valid applications.
There are times when a court might give a state legislature an opportunity to cure the infirmities in the statute before permitting the district court to fashion a remedy. See Wise v. Lipscomb, 437 U.S. 535, 540, 98 S.Ct. 2493, 57 L.Ed.2d 411 (1978) ("When a federal court declares an existing
However, the Supreme Court and our court have acknowledged that when it is not practicable to permit a legislative body this opportunity because of an impending election, "it becomes the `unwelcome obligation' of the federal court to devise and impose a [remedy] pending later legislative action." Wise, 437 U.S. at 540, 98 S.Ct. 2493 (quoting Connor v. Finch, 431 U.S. 407, 415, 97 S.Ct. 1828, 52 L.Ed.2d 465 (1977)); see also Perez, 132 S.Ct. at 939-41 (implicitly approving of a district court's decision to devise an interim redistricting plan rather than permit the legislature to impose a new plan in light of the fast-approaching election, but remanding to the district court to alter the plan to reflect the State's policy judgments); Reynolds v. Sims, 377 U.S. 533, 585, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) ("[O]nce a State's legislative apportionment scheme has been found to be unconstitutional, it would be the unusual case in which a court would be justified in not taking appropriate action to insure that no further elections are conducted under the invalid plan."); cf. Planned Parenthood Cincinatti Region v. Taft, 444 F.3d 502, 517 (6th Cir. 2006) (remanding to the district court to fashion an appropriate injunction and instructing the district court to account for legislative intent).
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, 437 U.S. at 540, 98 S.Ct. 2493; see also Perez, 132 S.Ct. at 939-41.
In the event that the Governor calls a special session to address this issue or should a later Legislature again address the issue of voter identification, any new law would present a new circumstance not addressed here. Such a new law may cure the deficiencies addressed in this opinion. Neither our ruling here nor any ruling of the district court on remand should prevent the Legislature from acting to ameliorate the issues raised in this opinion. Any concerns about a new bill would be the subject of a new appeal for another day.
On remand, the district court should refer to the policies underlying SB 14 in fashioning a remedy. We acknowledge that the record establishes that the vast majority of eligible voters possess SB 14 ID, and we do not disturb SB 14's effect on those voters — those who have SB 14 ID must show it to vote. The remedy must be tailored to rectify only the discriminatory effect on those voters who do not have SB 14 ID or are unable to reasonably obtain such identification. See Frank II, 819 F.3d at 386 (rejecting that "because some voters face undue difficulties in obtaining acceptable photo IDs, Wisconsin could not require any voter to present a photo ID," but accepting that "high hurdles for some persons" might "entitle those particular persons to relief"). Because the parties had an opportunity to present the evidence they desired during the initial district court proceedings, the district court's determinations should be based on the current record, supplemented only by legislative action, if any, that occurs after this remand and any oral argument permitted by the district court.
Clearly, the Legislature wished to reduce the risk of in-person voter fraud by strengthening the forms of identification presented for voting. Simply reverting to the system in place before SB 14's passage would not fully respect these policy choices — it would allow voters to cast ballots after presenting less 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.
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.
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.
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.
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.
STEPHEN A. HIGGINSON, Circuit Judge, 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
As the majority opinion explains, our adoption of the Fourth and Sixth Circuits' two-part test places Section 2's totality-of-circumstances inquiry in a vote-denial framework that adheres to the text of Section 2, 52 U.S.C. § 10301, and the Supreme Court's guidance in Gingles, 478 U.S. at 47, 106 S.Ct. 2752 ("The essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives."). Use of the Gingles (or Senate) factors as nonexhaustive tools fleshing out this framework ensures the requisite causal linkage between past discrimination and a challenged voting practice's disparate impact. Though some of the factors may have less relevance in vote-denial cases, others, particularly "Senate factors one, three, five, and nine," aid in applying the Supreme Court's admonition to discern the relevant social and historical effects of discrimination, and their interaction with a challenged law. Ohio State Conference of NAACP v. Husted,
The Senate factors have roots in this court, see Zimmer v. McKeithen, 485 F.2d 1297, 1305 (5th Cir. 1973) (en banc), and we have not limited them to vote-dilution cases. To the contrary, in a vote-denial case in which we affirmed a finding that Mississippi's voter registration process violated Section 2's results test, we noted that the trial court applied those "`objective factors' to aid the courts in evaluating a § 2 claim." Miss. State Chapter, Operation Push, Inc. v. Mabus, 932 F.2d 400, 405 (5th Cir. 1991), aff'g Miss. State Chapter, Operation Push v. Allain, 674 F.Supp. 1245 (N.D. Miss. 1987) (applying all nine factors).
Today's outcome is also not inconsistent with Crawford v. Marion County Election Board, 553 U.S. 181, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008). Crawford did not even discuss the Voting Rights Act, and held only that the lower courts "correctly concluded that the evidence in the record [was] not sufficient to support a facial attack on the validity of the entire statute" under the constitutional Anderson-Burdick framework. Id. at 189, 128 S.Ct. 1610. Furthermore, as Justice Stevens took care to note, the record there, unlike here, (1) did not quantify the voters without qualifying ID, (2) provided no "concrete evidence of the burden imposed on voters who currently lack photo identification," and (3) said "virtually nothing about the difficulties faced by ... indigent voters." Id. at 200-01, 128 S.Ct. 1610. To be sure, Crawford established that preventing voter fraud and safeguarding voter confidence are legitimate and important state interests. Id. at 194-97, 128 S.Ct. 1610. But it does not follow that assertion of those interests immunizes a voter ID law from all challenges, or that courts should be deterred from examining, as part of the Section 2 totality-of-circumstances inquiry, the tenuousness of the reasons given for the law. See League of Women Voters of
Nor does our decision contravene League of United Latin American Citizens v. Clements, 999 F.2d 831 (5th Cir. 1993) (en banc). Texas highlights our statements in that dilution case that socioeconomic disparities alone do not show "that minorities do not enjoy equal access to the political process," and that the Senate Report "did not dispense with proof that participation in the political process is in fact depressed among minority citizens." Id. at 866, 867. From this, Texas reasons that the district court erred by finding a Section 2 violation without "proof that the challenged law affects voting behavior." The cited language in Clements, however, discussed Senate factors one and five: "the extent of any history of official discrimination" affecting political participation, and "the extent to which members of the minority group ... bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process." Id. at 866 & n.30. In that context, we noted that the plaintiffs "offered no evidence of reduced levels of black voter registration, lower turnout among black voters, or any other factor tending to show that past discrimination" — not the challenged law by itself — "ha[d] affected their ability to participate in the political process" as required by "these Zimmer [Senate] factors." Id. at 867. Here, in sharp contrast, the district court heard such evidence and found, in its discussion of factor five, that the effects of past discrimination "have hindered the ability of African-Americans and Hispanics to effectively participate in the political process"; indeed, one expert "testified that these minorities register and turnout for elections at rates that lag far behind Anglo voters." Veasey v. Perry, 71 F.Supp.3d 627, 697 (S.D. Tex. 2014).
The district court also heard from witnesses who were unable to vote because they lacked the required forms of ID, from some who struggled to obtain the required forms of ID or documents needed to obtain them, and from others who help disadvantaged individuals obtain photo IDs and attested to the difficulties those individuals face in doing so. See id. at 667-76. The court further credited expert testimony that SB 14 "would almost certainly decrease 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, 677 F.3d at 383. That court, after citing the Senate factors with approval and emphasizing the deference owed to a district court's factual Section 2 determinations, affirmed a finding that the plaintiff had failed to establish the disparate impact of a voter ID law where, among other things, the district court rejected as unreliable the plaintiff's expert statistical analysis and the record included no evidence that Hispanics were even less likely to possess qualifying ID. Id. at 406-07 & n.33. The law at issue was also much less strict, requiring a voter to present at the polls either (A) one of a broader range of photo IDs or (B) two non-photo documents showing the voter's name and address, such as a utility bill, bank statement, or voter registration card. Gonzalez v. Arizona, No. CV 06-1268-PHX, 2006 WL 3627297, at *1, *6 (D. Ariz. Sept. 11, 2006). Even so, two judges wrote separately to stress that the court's holding was based on "the current record," and that "[a] different record in a future case could produce a different outcome." Gonzalez, 677 F.3d at 442 (Berzon, J., concurring).
The Ninth Circuit of course said that "proof of `causal connection between the challenged voting practice and a prohibited discriminatory result' is crucial" to a Section 2 challenge. Id. at 405 (majority opinion) (quoting Smith, 109 F.3d at 595). But the district court here found that the record
For this reason among others, we should not be guided by Frank v. Walker, 768 F.3d 744 (7th Cir. 2014). In that case, Judge Easterbrook — who did not mention the applicable clear-error standard of review — overlooked many of the district court's factual findings. See Frank v. Walker, 773 F.3d 783, 792-93, 796-97 (7th Cir. 2014) (Posner, J., dissenting from denial of rehearing en banc); Tokaji, supra, at 460. Questioning other circuits' approaches to vote-denial cases without offering a clear alternative, Judge Easterbrook went on to uphold a different voter ID law on the rationales that the law did not facially "draw any line by race," and that the plaintiffs had not "show[n] a `denial' of anything by Wisconsin, as § 2(a) requires" because the state had not directly caused minorities to be less likely or able to own qualifying IDs. Frank, 768 F.3d at 753. Ultimately, the Seventh Circuit read Section 2 as only "an equal-treatment requirement," and rejected the plaintiffs' challenge "because in Wisconsin everyone has the same opportunity to get a qualifying photo ID." Id. at 754, 755.
This reasoning ignores that Section 2 prohibits voting procedures "imposed or applied ... in a manner which results in a denial or abridgement of the right ... to vote." 52 U.S.C. § 10301(a) (emphasis added). Indeed, the opinion does not mention "abridgement" aside from a single quotation of the statute. Judge Easterbrook's "equal-treatment" gloss — which he did not explain aside from saying that is "how [the statute] reads," Frank, 768 F.3d at 754 — is puzzling because it is undisputed that, in response to a judicial ruling that Section 2 plaintiffs had to prove discriminatory intent, Congress revised the statute "to make clear that a violation could be proved by showing discriminatory effect alone," Gingles, 478 U.S. at 35, 106 S.Ct. 2752; cf. Tex. Dep't of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., ___ U.S. ___, 135 S.Ct. 2507, 2513, 192 L.Ed.2d 514 (2015) (explaining that "disparate-treatment" plaintiffs must show a discriminatory intent or motive). And if Section 2 requires only equal treatment, or if a Section 2 burden is cognizable only if it is impossible for some minority voters to comply with the challenged law, Justice Scalia must have mistakenly stated that Section 2 would be violated if "a county permitted voter registration for only three hours one day a week, and that made it more difficult for blacks to register than whites." Chisom, 501 U.S. at 408, 111 S.Ct. 2354 (Scalia J., dissenting). After all, ignoring disparities due to past discrimination, that law would give everyone the "same opportunity" to register.
Judge Easterbrook further seems to have reasoned that the only discrimination relevant to Section 2's totality-of-the-circumstances inquiry is of the state-sponsored variety. See Frank, 768 F.3d at 753.
Two related final points bear mentioning. First, Judge Easterbrook warned that the Frank plaintiffs' interpretation of Section 2 could "sweep[] away almost all registration and voting rules." Frank, 768 F.3d at 754. For example, he opined, "[m]otor-voter registration, which makes it simple for people to register by checking a box when they get drivers' licenses, would be invalid, because black and Latino citizens are less likely to own cars and therefore less likely to get drivers' licenses." Id. The dissent advances a similar point, warning that voting regulations ranging from polling locations, early voting details, and registration times "can be challenged successfully under the majority's rationale." I agree that Section 2 challenges can be brought against a variety of election laws — but that is nothing new. See Holder v. Hall, 512 U.S. 874, 922, 114 S.Ct. 2581, 129 L.Ed.2d 687 (1994) (Thomas, J., concurring) ("The section thus covers all manner of registration requirements, the practices surrounding registration (including the selection of times and places where registration takes place and the selection of registrars), the locations of polling places, the times polls are open, the use of paper ballots as opposed to voting machines, and other similar aspects of the voting process that might be manipulated to deny any citizen the right to cast a ballot and have it properly counted."); see also Allen v. State Bd. of Elections, 393 U.S. 544, 566-67, 89 S.Ct. 817, 22 L.Ed.2d
There is a difference between making voting harder in ways that interact with historical and social conditions to disproportionately burden minorities and making voting easier in ways that may not benefit all demographics equally (like motor-voter). The former can be characterized as "abridging" the right to vote; the latter cannot. Laws that neither "eliminate opportunities that racial minorities disproportionately use, [n]or impose a requirement that 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 groups, such as young people, the working poor, and the elderly mobilize, I concur in the majority opinion, having offered these respectful responses to arguments made in dissent.
EDITH H. JONES, Circuit Judge, joined by E. GRADY JOLLY, JERRY E. SMITH, EDITH BROWN CLEMENT, and PRISCILLA R. OWEN, concurring in part and dissenting in part:
We dissent.
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
Three points must be highlighted at the outset, with further discussion to follow: the true extent of the legislative process leading to passage of a photo voter ID law; the catalytic effect of the Supreme Court's decision approving these IDs; and the impact of the law's requirements on all races.
First, SB 14 was enacted in the 2011 biennial legislative session after similar bills requiring photo voter ID had failed in three previous sessions. For six years, opponents had successfully stalled measures requiring proof of a voter's identity, not just a piece of paper from the County Registrar's office or a mere affidavit of "lost voter certificate." For every shortcut the majority employed to finally pass SB 14, an equal and opposite blocking tactic had succeeded in earlier legislative sessions.
Second, the campaign for stronger voter ID laws was encouraged by Crawford v. Marion County Election Board, 553 U.S. 181, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008), which upheld Indiana's photo voter ID law and emphasized the importance of protecting the integrity of election processes. Justice Stevens's opinion rejected the claim that Indiana had to advance "proof" of actual in-person voter fraud in order to justify the statute. Fourteen states passed photo voter ID laws in the wake of Crawford.
Third, the range of qualifying SB 14 IDs, while narrower than that in some similar ID laws, poses no obstacle to voting for at least 95.5% of all Texas voters who have unexpired (or no later than 60 days past expiry) driver's licenses, Texas personal identification cards, military IDs with a photo, United States passports, United States citizenship certificates with a photo, or licenses to carry a handgun. For those who lack such IDs, the law offers a cost-free Election Identification Card ("EIC") obtainable at state DMV offices (like the free card available in Indiana). Photo voter IDs are not required for elderly and disabled voters, as they may vote with mail-in ballots.
At trial, the alleged adverse racial impact of SB 14 was derived from statistical estimates of the relative numbers of Anglo, Black, and Hispanic voters who "do not possess SB14-compliant IDs." That is to say, of the 4.5% who may lack qualifying IDs, a disproportionate number are Black and Hispanic voters. Still, approximately the same number of Anglo registered voters (approx. 296,000) as the total of Black (approx. 128,000) and Hispanic (approx. 175,000) voters lack the requisite IDs. Put otherwise, approximately 2% of Anglo, 5.9% of Hispanic and 8.1% of Black voters comprise the 4.5% who lack SB 14 IDs but could vote with EICs; the law poses no obstacle for over 90% of minority voters.
Despite extraordinary efforts to find voters "disenfranchised" by SB 14, the DOJ could not uncover any, and no representative of the plaintiff organizations found any of their members unable to vote because of SB 14. Three plaintiffs claimed they could not vote in person under SB 14, but two of those qualified for ballots by mail. The plaintiffs' case thus turned on the 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
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.
"[O]fficial action will not be held unconstitutional solely because it results in a racially disproportionate impact.... Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause." Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-65, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977). This is shared ground, as it is that Arlington Heights sets out certain factors that may be relevant to proving the intent of the legislature.
Arlington Heights's discourse on proving discriminatory legislative intent does not exist in a vacuum. There, the Court upheld a zoning board decision that prevented the construction of a low-income housing project in a Chicago suburb. The facially neutral zoning order had a discriminatory impact on minorities who were more likely to inhabit the project. The Court attempted to catalog how a legislative decision, and the steps leading to it, might display an impermissible motive. Notably, in each case cited to exemplify its listed factors, discriminatory motive could be easily inferred. A county closed public (heavily minority) schools while private segregated schools received financial support.
Nothing in Arlington Heights suggests that the Court's listing of relevant factors licenses courts to string together bits of circumstantial evidence that wholly lack racial content and then undo any law with an incidental disparate impact. In Arlington Heights, the Court found no basis for doing so.
Arlington Heights followed Washington v. Davis, in which the Court held that purposeful discrimination is required to establish Equal Protection violations. Despite evidence that four times more Blacks than Whites failed the District of Columbia's verbal proficiency test for police applicants, 426 U.S. 229, 237, 96 S.Ct. 2040, 2046, 48 L.Ed.2d 597 (1976), the Court found no purposeful discrimination, id. at 246, 96 S.Ct. 2040. "The test is neutral on its face and rationally may be said to serve a purpose the Government is constitutionally empowered to pursue." Id. Other facts recounted how the District was attempting to recruit minority police officers.
Critical for this case is the Court's conclusion in Washington v. Davis:
Id. at 248, 96 S.Ct. 2040. For precisely this reason, courts must walk a fine line between acknowledging discriminatory impact in a neutral law and discerning discriminatory purpose from nothing more than creative inferences.
Two years after Arlington Heights, the Court rejected inferring discrimination against women in a Massachusetts law that conferred an absolute lifetime state employment preference for veterans. Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979).
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, 99 S.Ct. 2282; see also Milliken v. Bradley, 418 U.S. 717, 745, 94 S.Ct. 3112, 3127, 41 L.Ed.2d 1069 (1974) (remedy cannot be imposed on other government bodies not having been shown to violate Constitution). In other words, exogenous effects of past discrimination cannot be used to impute a contemporary discriminatory purpose.
Second, the Court held, discriminatory purpose:
Id. at 279, 99 S.Ct. 2282. Thus, as in Arlington Heights, an absence of direct evidence of discriminatory intent should be compelling.
Third, the Court rejected the plaintiffs' complaint that the law was excessively broad, unfair, and controversial with a firm reminder that "the Fourteenth Amendment `cannot be made a refuge from ill-advised laws.'" Id. at 281, 99 S.Ct. 2282 (internal citation omitted). That a law might have been written differently with respect to impact does not condemn it under the Equal Protection Clause.
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
Id. at 279 n.25, 99 S.Ct. 2282. Inferences cannot substitute for proof where the available evidence demonstrates no invidious intent.
The case before us falls comfortably in line with Arlington Heights, Washington v. Davis, and Feeney.
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.
The following section tracks each of the alleged "facts" from which the majority opinion draws inferences of discriminatory intent.
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, 429 U.S. at 266, 97 S.Ct. at 564. However, in this rare case where the
To the majority, "[t]here is evidence that the proponents of SB 14 were careful about what they said and wrote about the purposes of SB 14, knowing it would be challenged during the preclearance process under the Voting Rights Act." For this proposition, they highlight a statement by Senator Fraser, one of SB 14's authors, who testified that "the public legislative record would either go to the Department of Justice or a three-judge panel as a part of the [Voting Rights Act] Section 5 review process." Because Senator Fraser was "aware that everything that [he] was saying was part of a public record," the majority imply, it is unsurprising that no direct evidence of discrimination was found in the unprecedented legislative discovery.
The district court did not rely on Fraser's statements to explain away the lack of a "smoking gun" in the legislative record or discovery. See Veasey v. Perry, 71 F.Supp.3d 627, 702 (S.D. Tex. 2014). At most, his testimony reflects simple and uncontroversial facts.
Senator Fraser's deposition excerpts were read into the record by the State during the Veasey trial. The majority opinion quotes from the plaintiff's "cross-examination" portion. When asked if it was his belief "that the public legislative record would either go to the Department of Justice or a three-judge panel as part of the Section 5 review process," Senator Fraser testified that he "did believe it would go one of those two places." Senator Fraser was then asked if this made him consider "what sort of statements [he] made on the Senate Floor?" Senator Fraser did not respond that he was especially careful in his floor statements about SB 14 or anything even close to that. Instead, he 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. III, § 12(a). The Texas Senate Staff Services office makes the audio recordings of all Senate Floor proceedings available to the public free of charge.
Most importantly, however, the facts conveyed by Senator Fraser are not probative about why the unprecedented discovery into the private correspondence and documents of SB 14 proponents turned up no evidence of discriminatory intent. Senator Fraser's testimony deals with public records and floor statements. It says nothing about why SB 14 proponents would have censored themselves privately. Based on Arlington Heights, no one could have predicted a federal court would order such unprecedented discovery from Senator Fraser or the Legislature.
The majority also emphasizes a piece of deposition testimony by Bryan Hebert, the deputy general counsel for the Lt. Governor, that he sent an email reminding senators to emphasize the "detection and deterrence of fraud and protecting public confidence in elections as the goal of SB 14."
Once again, the district court did not rely on this statement of Mr. Hebert. See Veasey v. Perry, 71 F.Supp.3d at 702. Hebert's statement was made in an email sent to various Senate staffers laying out plans for the floor debate on SB 14. He characterized it as "an attempt to — at best... outline ... how things might go." Stressing the detection and deterrence of fraud and promoting public confidence in elections was listed as a "floor task" because, as Hebert understood it, "that was the goal of the bill."
Hebert's statement is not probative of why there would be no evidence turned up in the private legislative discovery. Hebert's statement merely urges the use of talking points in Senate Floor speeches. Politicians emphasize and reemphasize talking points because they are effective, not because they are seeking to cover up ulterior motives. See Citizens United v. FEC, 558 U.S. 310, 364, 130 S.Ct. 876, 912, 175 L.Ed.2d 753 (2010) ("[S]ound bites, talking points, and scripted messages ... dominate the 24-hour news cycle."). Hebert's statement offers no support for the proposition that the plaintiffs' failure to uncover evidence of discrimination can be ascribed to a cover-up by SB 14 proponents.
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, 71 F.Supp.3d at 657-58.
The majority opinion uses the "common sense" opinion of a member of the Texas House of Representatives and the "suspicions" of the Lt. Governor's deputy general counsel to leap to the conclusion that "the drafters and proponents of SB 14 were aware of the likely disproportionate effect of the law on minorities." Even if these statements were enough to imply knowledge on the part of the entire Texas Legislature, however, awareness of the disparate impact of a law does not prove a legislature's intent to discriminate. Feeney, 442 U.S. at 279, 279 n.25, 99 S.Ct. at 2296, 2296 n.25; Lewis v. Ascension Parish Sch. Bd., 662 F.3d 343, 349 (5th Cir. 2011) (per curiam).
Senator Fraser indeed testified at his deposition that he believed the Voting Rights Act had "outlived its useful life"; the district court did not rely on this statement, and with good reason, too, since it has no probative value. Nowhere in his deposition did Senator Fraser state that SB 14 sought to defy the Voting Rights Act because of the law's perceived obsolescence. And it is odd to hold up his personal opinion of the Act's obsolescence for an inference of purposeful discrimination when it is, in part, shared by a majority of the Supreme Court. See Shelby Cty., 133 S.Ct. at 2628.
Evidence that Senator Fraser answered questions about SB 14's disparate impact with "I am not advised" is also not probative of discriminatory intent. Senator Fraser was asked on the Senate floor if the "elimination of government documents as a form of ID [will] disproportionately affect African Americans and Hispanics?" He responded, "I am not advised," but he also testified that such an answer merely indicates that the speaker does "not have sufficient
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, 71 F.Supp.3d at 647. It is frankly difficult to tell what Senator Ellis meant by the comment that Senator Fraser drew the straw. But in no way does Senator Ellis imply that Senator Fraser acted with discriminatory intent. Just the opposite, in fact. Senator Ellis refers to Senator Fraser as his "friend." Senator Ellis acknowledges that Senator Fraser stated on the Senate Floor that he did not intend SB 14 to have a disparate impact, and Senator Ellis himself said on the Senate Floor that he did not believe Senator Fraser intended SB 14 to have a disparate impact.
The majority states that "[a]nother senator [then-Senator Dan Patrick] admitted at his deposition that he and other proponents of SB 14 voted to table numerous amendments meant to expand the types of accepted IDs, expand the operating hours of DPS stations issuing voter IDs, delay implementation of SB 14 until an impact study had been completed, and other ameliorative measures." This is a fact; there is no doubt that a number of amendments were rejected and that the bill's opponents generally felt that these rejections were inadequately explained. See id. at 646-47. But it is incorrect to connect the rejection of amendments with Senator Ellis's "out of character for major bills" comment. Senator Ellis's comment referred only to Senator Fraser's "I am not advised" answers.
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
The majority claims that "SB 14 was subject to numerous and radical procedural departures" that were "virtually unprecedented." The majority has no support, except the district court's opinion, for its conclusion. The district court, in turn, relies only on the speculations of opposition legislators, many of whom are plaintiffs in this case, as to the procedural motivations underlying SB 14's passage. See Veasey v. Perry, 71 F.Supp.3d at 647-51. The majority expressly condemns the district court because it "mistakenly relied in part on speculation by the bill's opponents about proponents' motives," yet it condones precisely such speculation here. Sadly, neither the majority nor the district court tells the entire legislative saga as contained in the record.
Most of the district court's pre-2011 legislative history citations are to public websites that show only the results of votes, not to the record or expert reports that chronicle the drama behind those results. See, e.g., id. at 645-46 nn.71-77. The entire story appears from expert reports offered for the plaintiffs (Drs. Lichtman and Davidson) and the testimony of Lt. Gov. Dewhurst, which are necessary to understand the 2011 actions taken by the Legislature.
First, a bit of background in how the Texas Senate considers legislation is necessary. At the start of the session, the Senate adopts by majority vote rules that will govern its business during the session. These rules are usually rolled over from the prior session and then tweaked accordingly. One rule that has been consistently adopted since World War II is the "two-thirds rule." Under ordinary rules, the Senate can only consider legislation in the order in which it appears on the calendar. However, two-thirds of senators present and 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 "[w]hile the rules were initially suspended to take it up out of order for second reading, the vote was reconsidered and the measure failed. The rules were not suspended, at which point the bill died." Id. at 646.
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 Dewhurst had attempted to reach a compromise with them before the session on the substance of the bill. However, opposition Senator Mario Gallegos was having complications from a liver transplant, which meant that Democrat opponents lacked the votes to block the bill in his absence. Against the advice of his doctors, Gallegos returned to Austin for the session specifically so he could vote against the voter ID bill. Senator Bob Deuell, a Republican and proponent of the bill, paid to have a medical supply company put a hospital bed in a room adjacent to the Senate chamber for Gallegos. Lt. Gov. David Dewhurst, also a Republican, agreed to give Gallegos 24-hour notice before any vote on the voter ID bill would occur.
Meanwhile, Democrat Senator Carlos Uresti became bedridden with the flu during the session. He was absent from the floor on May 15, 2007, when Senator Fraser, the voter ID bill's sponsor, moved to
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 Senators to change the Senate rules, so ... [this change] was entirely within the tradition and rules of the Senate." According to Karina Davis, the Senate Parliamentarian, the Senate has only designated two categories of bills for such special treatment since 1981: redistricting and voter ID. Notably, both of these categories have to do with elections. This makes sense, as such matters cut to the very heart of how a representative democracy will function and concern the "highly political judgments," Bartlett v. Strickland, 556 U.S. 1, 17, 129 S.Ct. 1231, 1245, 173 L.Ed.2d 173 (2009) (citation omitted), for which two-thirds agreement is unlikely. Further, even though the two-thirds rule has been suspended by special treatment in only these two categories, the legislative history of the Senate is replete with examples since World War II of Lt. Governors who got the Senate to pass the blocker bill, thereby enabling majority votes on later legislation under the Senate's normal rules.
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.
Ignoring the legislative history of voter ID during three previous legislative sessions, the majority chides the 2011 Legislature for prioritizing SB 14 in a busy session without — in the majority's view — sufficient evidence that there is a problem of in-person voter fraud in Texas to justify SB 14. The court critiques that SB 14 did not single out mail-in ballots for a special degree of scrutiny. Of course, as the majority itself rightly notes, "[t]he Legislature is entitled to set whatever priorities it wishes." These gratuitous observations about legislative prioritization are therefore beside the point as the federal courts lack the expertise or authority to question a legislature's prioritization of various issues. Recall too, that the Legislature also wanted to address other types of fraud, such as registration fraud, but was prevented from doing so because of one voter ID opponent's objection based on one-subject rules for legislation.
More significant, however, in Crawford, the Supreme Court flatly rejected the majority's intimation that record evidence of voter fraud is required to justify the State's interest in preventing voter fraud. 553 U.S. at 195-97, 128 S.Ct. at 1619-20. Indeed, the Court upheld Indiana's voter ID law in Crawford although the record there contained "no evidence of any such fraud actually occurring in Indiana at any time in its history." Id. at 194, 128 S.Ct. 1610. The Court instead noted that "flagrant examples of such fraud in other
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.
The majority asserts that "[t]he circumstantial evidence of discriminatory intent is augmented by contemporary examples of State-sponsored discrimination in the record." It then goes on to cite several examples, taken from the district court's opinion, of alleged recent discrimination by Texas against minorities. This recitation is riddled with errors and on examination, disintegrates into forty-plus year old actions.
The majority first claims that "as late as 1975, Texas attempted to suppress minority voting through purging the voter rolls, after its former poll tax and re-registration requirements were ruled unconstitutional." (citing Veasey v. Perry, 71 F.Supp.3d at 635). Thus, the most "contemporary" example that the majority or district court can cite was in 1975.
In its next attempt to find recent examples of intentional discrimination on the part of Texas, the majority credits the district court's statement that "[i]n every redistricting cycle since 1970, Texas has been found to have violated the VRA with racially gerrymandered districts." (quoting Veasey v. Perry, 71 F.Supp.3d at 636 & n.23). This assertion is just plain wrong. The district court cites five cases as support: LULAC v. Perry, 548 U.S. 399, 126 S.Ct. 2594, 165 L.Ed.2d 609 (2006) (2000 census redistricting); Bush v. Vera, 517 U.S. 952, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996) (1990 census redistricting); Upham v. Seamon, 456 U.S. 37, 102 S.Ct. 1518, 71 L.Ed.2d 725 (1982) (1980 census redistricting); White v. Weiser, 412 U.S. 783, 93 S.Ct. 2348, 37 L.Ed.2d 335 (1973) (1970 census federal redistricting); White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973) (1970 census state redistricting). In LULAC v. Perry, the Supreme Court applied Section 2 and upheld a majority-Black district but struck down another district as dilutive against Latinos even though the Texas Legislature had drawn another majority-Latino district to remedy the dilution. In Bush v. Vera, the Legislature's plan received preclearance, yet the Court found racial gerrymandering because the Legislature increased racial minority voting power when it drew three new majority-minority districts and reconfigured an existing one to make it a majority-Black district. In Upham v. Seamon, the issues related to preclearance for two districts and a district court's power sua sponte to reject legislative choices. In White v. Weiser, congressional districts drawn after the 1970 census were challenged on the basis of the Constitution's one-person-one-vote doctrine, see Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and the suit had nothing to do with race or the Voting Rights Act. Only in White v. Regester, did the Court find that two multi-member state legislative districts drawn in 1971 invidiously
The majority next faults Texas for the Department of Justice's objection under preclearance to at least one district in each of Texas's redistricting plans between 1980 and the present. To the extent this unattributed statement is accurate, this is not probative of the legislature's intent to discriminate against minorities in 2011. Preclearance involved a "nonretrogression" standard, see Beer v. United States, 425 U.S. 130, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976), that is far less stringent than proving an intentional discrimination claim.
In short, the majority's "contemporary examples" about Texas's State-sponsored discrimination are neither contemporary nor probative.
The majority also criticizes the Texas Legislature because legislators allegedly proffered various, "shifting" rationales for the law. Citing to the district court's opinion, the majority states that the reasons for the law "shifted as they were challenged or disproven by opponents." Of course, "legislators and administrators are properly concerned with balancing numerous competing considerations," Arlington Heights, 429 U.S. at 266, 97 S.Ct. at 563, so it would be unsurprising to hear legislators advancing different rationales for supporting a particular bill. In this case, however, the depositions of various legislators who voted in favor of SB 14 revealed a consistent purpose behind this voter ID law: to prevent voter fraud and thereby promote the integrity of the voting process; in the minds of some legislators this would improve public confidence and possibly increase voter turnout.
The majority's contention that the legislators shifted between these purposes when the rationales were "challenged or disproven by opponents," similarly proves too much. By this statement, the majority, like the district court, presumably means that the Legislature did not, in its view, provide enough evidence to support its proffered interests in the face of opponents'
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, 517 U.S. at 956-57, 116 S.Ct. at 1950-51. The Supreme Court rejected a claim that early 2000s Congressional redistricting around the Dallas area diluted the African-American vote. See LULAC v. Perry, 548 U.S. at 443-47, 126 S.Ct. at 2624-26. In addition, an expert report credited by the district court showed African-American and Hispanic representation among state legislators to generally align with their proportion in the total population. See Veasey v. Perry, 71 F.Supp.3d at 638.
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. 553 U.S. at 204, 128 S.Ct. at 1624. And although the Supreme Court in LULAC v. Perry found that the Texas Legislature violated Section 2 in one Congressional district it drew after the 2000 census, the Court did not accuse the Legislature of racism, but at most of partisanship. The "seismic demographic shift" has been underway
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) ("[A]lthough 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.").
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,
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:
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, 446 U.S. 55, 60-61, 100 S.Ct. 1490, 1496, 64 L.Ed.2d 47 (1980). In so doing, Congress was focused largely, though not exclusively, on legislative districting practices whose effects often undermined minority representation. Clearly, the formula for a Section 2 violation requires less than intent, but far more than a mere racially disparate impact.
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, 478 U.S. 30, 35, 106 S.Ct. 2752, 2758, 92 L.Ed.2d 25 (1986) (hereafter, "Gingles") (emphasis added).
The majority acknowledges that in transitioning from redistricting cases, epitomized
See League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 240 (4th Cir. 2014), mandate stayed, ___ U.S. ___, 135 S.Ct. 6, 190 L.Ed.2d 243, cert. denied, ___ U.S. ___, 135 S.Ct. 1735, 191 L.Ed.2d 702 (2015); Ohio State Conference of NAACP v. Husted, 768 F.3d 524, 554 (6th Cir. 2014), vacated as moot, 2014 WL 10384647 (6th Cir. 2014).
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, 768 F.3d 744, 755 (7th Cir. 2014), reh'g denied by an equally divided court, 773 F.3d 783, cert. denied, ___ U.S. ___, 135 S.Ct. 1551, 191 L.Ed.2d 638 (2014). Section 2 "does not require States to overcome societal effects of private discrimination," only their own discrimination. Id. at 753; see also LULAC, Council No. 4434 v. Clements, 999 F.2d 831, 867 (5th Cir. 1992) (en banc) ("[S]ocioeconomic disparities and a history of discrimination, without more," do not satisfy Section 2's legal standard).
Second, Gingles did not ascribe talismanic significance to the Senate Factors; the Court prescribed a three-part test to gauge the disparate impact of multimember legislative districts — before reaching the Section 2 analysis — with the Senate Factors used to confirm liability. Gingles, 478 U.S. at 48-51, 106 S.Ct. at 2765-67.
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 sociological
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 Gingles 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., 348 U.S. 483, 488, 75 S.Ct. 461, 464, 99 L.Ed. 563 (1955) ("The day is gone when [courts] ... strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.").
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:
(citing Veasey v. Perry, 71 F.Supp.3d at 664). As a result of finding a racial disparity among those who possess or have access to SB 14 IDs and using the Gingles factors, the majority affirms a Section 2 violation. Liability therefore turns, under the majority's approach, on essentially three conclusions. First, a particular regulation has a "disparate impact" because it creates an additional voting burden upon poor, disproportionately minority voters. Second, Texas has a history of official discrimination whose effects persist to the present day. Third, the law in question could have been written more narrowly.
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, 768 F.3d at 752, is "the salient guidance" for enunciating violations.
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, 768 F.3d at 754.
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, 478 U.S. at 48 n.15, 106 S.Ct. at 2766 n.15 ("It is obvious that unless minority group members experience substantial difficulty electing representatives of their choice, they cannot prove that a challenged electoral mechanism impairs their ability `to elect'" in violation of Section 2). The Ninth Circuit, rejecting a challenge to Arizona's voter ID law, held that "proof of `causal connection between the challenged voting practice and a prohibited discriminatory result' is crucial" to Section 2 analysis. Gonzalez, 677 F.3d at 405 (quoting Smith v. Salt River Project Agric. Imp. & Power Dist., 109 F.3d 586, 589 (9th Cir. 1997)); see also Frank, 768 F.3d at 753-54 (voter ID law did not cause minorities to have less opportunity and were treated equally); LULAC v. Clements, 999 F.2d at 867 (5th Cir. 1993) (en banc) (emphasizing need for proof of depressed minority voter turnout); Salas v. Sw. Tex. Junior Coll. Dist., 964 F.2d 1542, 1556 (5th Cir. 1992) (rejecting challenge to at-large districts where Hispanic lack of electoral success was caused by lower turnout, not dilution); Ortiz v. City of Phila., 28 F.3d 306, 310 (3d Cir. 1994) (Philadelphia voter list purge law did not cause minorities to be deprived of equal access to the political system); Irby v. Va. State Bd. of Elections, 889 F.2d 1352, 1358-59 (4th Cir. 1989) (upholding appointive system for school board members where evidence "cast doubt on ... a causal link between the appointive system and Black underrepresentation"); Wesley v. Collins, 791 F.2d 1255 (6th Cir. 1986) (upholding felon disenfranchisement law because the disproportionate racial impact does not "result" from the State's qualification of the right to vote).
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, 999 F.2d at 867. To understand
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, 677 F.3d at 405 (citation omitted); see also Frank, 768 F.3d at 753 (Section 2 "does not condemn a voting practice just because it has a disparate effect on minorities"). The majority's opinion fundamentally turns on a statistical disparity in ID possession among different races, but instead of showing that this disparity was caused by SB 14, the majority relies on socioeconomic and historical conditions as the causes of this disparity. This finding conflicts 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." Inclusive Communities, 135 S.Ct. at 2523. Without a showing that SB 14 caused the disparity in ID possession, the majority holds Texas "liable for racial disparities [it] did not create." Id. (citation omitted).
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. 553 U.S. at 204, 128 S.Ct. at 1623; see also Voting for Am. v. Steen, 732 F.3d 382, 394 (5th Cir. 2013). Crawford also approved, without requiring independent proof, Indiana's argument that voter ID laws serve the State's legitimate interest of increasing voter turnout by safeguarding voter confidence in the election process. Crawford, 553 U.S. at 197, 128 S.Ct. at 1620. Nonetheless, the majority finds that these recognized State interests are only tenuously related to SB 14's provisions.
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 Section
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, 999 F.2d at 871. In Crawford, the Supreme Court confirmed the State's strong interests as a matter of law, as it sustained Indiana's voter ID law without record evidence "of any such fraud actually occurring in Indiana at any time in its history." 553 U.S. at 194, 128 S.Ct. at 1619. Crawford thus elevated the State's interest to a status of legislative fact, which lower courts are bound to respect. See Frank, 768 F.3d at 750 ("After a majority of the Supreme Court has concluded that photo ID requirements promote confidence, a single district judge cannot say as a `fact' that they do not, even if 20 political scientists disagree with the Supreme Court."). The majority wrongly second-guesses and subjects the State's interest in preventing in-person voter fraud to routine factual examination. But see Crawford, 553 U.S. at 196, 128 S.Ct. at 1619 ("While the most effective method of preventing election fraud may well be debatable, the propriety of doing so is perfectly clear."). The majority was wrong to require record evidence of lack of confidence in elections without voter ID. See id. at 194, 128 S.Ct. at 1618 ("`The electoral system cannot inspire public confidence if no safeguards exist to deter or detect fraud or to confirm the identity of voters.'" (quoting Building Confidence in U.S. Elections § 2.5 (Sept. 2005) (a report prepared by a committee co-chaired by former President Jimmy Carter and former Secretary of the Treasury and White House Chief of Staff James A. Baker III))).
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." 999 F.2d at 876. It follows that the majority should not reject strong State interests without any showing of an "abridgement of the right ... to vote on account of race or color." 52 U.S.C. § 10301(a). The majority errs in its treatment of the State's strong interests at stake here.
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 discriminatory
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. ___, 133 S.Ct. 2247, 2257, 186 L.Ed.2d 239 (2013) (emphasis in original); see U.S. CONST. art. I, § 4, cl. 1. "Prescribing voting qualifications, therefore, `forms no part of the power to be conferred upon the national government' by the Elections Clause, which is `expressly restricted to the regulation of the times, the places, and the manner of elections.'" Arizona, 133 S.Ct. at 2258 (emphasis in original) (quoting THE FEDERALIST No. 60, at 371 (A. Hamilton); THE FEDERALIST No. 52, at 326 (J. Madison)). This design was for good reason. The Court explained, "[t]his allocation of authority sprang from the Framers' aversion to concentrated power," because, as James Madison presciently observed, "[a] Congress empowered to regulate the qualifications of its own electorate ... could `by degrees subvert the Constitution.'" Id. (quoting 2 Records of the Federal Convention of 1787, p. 250 (M. Farrand rev. 1966)). It is thus "obvious that the whole Constitution reserves to the States the power to set voter qualifications in state and local elections...." Oregon v. Mitchell, 400 U.S. 112, 125, 91 S.Ct. 260, 265, 27 L.Ed.2d 272 (1970) (Black, J. for a five member majority on this point); see also Lassiter v. Northampton Cty. Bd. of Elections, 360 U.S. 45, 50, 79 S.Ct. 985, 989, 3 L.Ed.2d 1072 (1959) ("The States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised....").
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, 446 U.S. 55, 61-66, 100 S.Ct. 1490, 1496-98, 64 L.Ed.2d 47 (1980); see Rice v. Cayetano, 528 U.S. 495, 120 S.Ct. 1044, 145 L.Ed.2d 1007 (2000) (striking down law that denied vote to those without Native Hawaiian ancestry);
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, 521 U.S. 507, 516-20, 117 S.Ct. 2157, 2162-64, 138 L.Ed.2d 624 (1997). "`[A]s broad as the congressional enforcement power is, it is not unlimited.'" Id. at 518, 117 S.Ct. at 2163 (quoting Mitchell, 400 U.S. at 128, 91 S.Ct. at 266 (Black, J.)). Clearly, "Congress can enact legislation... enforcing" these constitutional rights. Id. at 519, 117 S.Ct. at 2163. And prophylactic measures to deter or remedy unconstitutional conduct are "within the sweep of Congress' enforcement power even if in the process it prohibits conduct which is not itself unconstitutional...." Id.; see also Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 365, 121 S.Ct. 955, 963, 148 L.Ed.2d 866 (2001); South Carolina v. Katzenbach, 383 U.S. 301, 327, 86 S.Ct. 803, 818, 15 L.Ed.2d 769 (1966). However, Congress's ability to enact such prophylactic legislation is cabined by an important limitation: "There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." City of Boerne, 521 U.S. at 520, 117 S.Ct. at 2164; see also Garrett, 531 U.S. at 365, 121 S.Ct. at 963. While Congress can employ "strong remedial and preventive measures to respond to the widespread and persisting deprivation of constitutional rights," City of Boerne, 521 U.S. at 526, 117 S.Ct. at 2167, it cannot enact "a substantive change in constitutional protections," id. at 532, 117 S.Ct. at 2170, under the guise of enforcement. See also Coleman v. Court of Appeals of Md., ___ U.S. ___, 132 S.Ct. 1327, 182 L.Ed.2d 296 (2012); Garrett, 531 U.S. at 364-65, 121 S.Ct. at 962-63; Mitchell, 400 U.S. at 128-29, 91 S.Ct. at 266-67.
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 "subordinat[ing] traditional race-neutral... principles" to "racial considerations" violates the Equal Protection Clause. Miller v. Johnson, 515 U.S. 900, 916, 115 S.Ct. 2475, 2488, 132 L.Ed.2d 762 (1995); see also Inclusive Cmtys., ___ U.S. ___, 135 S.Ct. 2507, 2524 ("Courts should avoid interpreting disparate-impact liability to be so expansive as to inject racial considerations into" government decision-making.); Ricci v. DeStefano, 557 U.S. 557, 594-95, 129 S.Ct. 2658, 2681-82, 174 L.Ed.2d 490 (2009) (Scalia, J., concurring) (avoiding disparate impact liability forces third parties such as states to evaluate the racial outcome of their policies in a way that considers race, and government compulsion of this result violates equal protection principles). This was already a problem with the nonretrogression doctrine in Section 5 of the Voting Rights Act, and it is a mistake to import it to Section 2. See Georgia v. Ashcroft, 539 U.S. 461, 491, 123 S.Ct. 2498, 2517, 156 L.Ed.2d 428 (2003) (Kennedy, J. concurring) ("Race cannot be the predominant factor in redistricting.... Yet considerations of race that would doom a redistricting plan under the Fourteenth Amendment or [Section] 2 seem to be what save it under [Section] 5.").
In fact, the Supreme Court has been careful to read Section 2 narrowly to avoid constitutional doubts. For example, in LULAC v. Perry, the Court rejected an interpretation of Section 2 that would have "unnecessarily infuse[d] race into virtually every redistricting...." 548 U.S. 399, 446, 126 S.Ct. 2594, 2625, 165 L.Ed.2d 609 (2006); see also Bartlett v. Strickland, 556 U.S. 1, 21, 129 S.Ct. 1231, 1247, 173 L.Ed.2d 173 (2009) (reading Section 2 so as to "avoid[] serious constitutional concerns under the Equal Protection Clause."); Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 205, 129 S.Ct. 2504, 2513, 174 L.Ed.2d 140 (2009) (deciding case under Voting Rights Act Section 4(b) instead of reaching the constitutionality of Section 5). A faithful adherence to the statutory text of Section 2 would have avoided constitutional difficulties.
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.
JERRY E. SMITH, Circuit Judge, 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.
JAMES L. DENNIS, Circuit Judge, 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, 458 U.S. 613, 623, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982). In reviewing the factual findings of the district court, this court is bound by the "clearly erroneous" standard of Federal Rule of Civil Procedure 52(a). Id. at 622-23, 102 S.Ct. 3272 (citing Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982)). "That Rule recognizes and rests upon the unique opportunity afforded the trial court judge to evaluate the credibility of witnesses and to weigh the evidence." Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 856, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982). "Because of the deference due the trial judge,
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, 456 U.S. at 287, 102 S.Ct. 1781. In my view, however, examination of the district court's opinion reveals no legal error and no reliance on infirm evidence. Instead of correcting legal errors, the majority opinion mistakenly lapses into an independent reweighing of the evidence and encroaches upon the district court's domain, in violation of Rule 52(a)'s clear instruction. See Inwood Labs., 456 U.S. at 856, 102 S.Ct. 2182; Rogers, 458 U.S. at 622-23, 102 S.Ct. 3272.
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. ___, 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013) and McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). Maj. Op. at 230-31. The historical background of an official decision is "one evidentiary source for proof of intentional discrimination, particularly if it reveals a series of official actions taken for invidious purposes." Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). Following the Supreme Court's guidance in Arlington Heights, the district court considered, inter alia, evidence of Texas's persistent history of discriminatory practices in the realm of voting rights, beginning with the inception of all-white primaries in 1895 and progressing with the continual invention of new methods designed to curb minority voting each time a prior method was blocked by the courts, including poll taxes, literacy and secret ballot restrictions, voter re-registration and purging, and racial gerrymandering of electoral districts. See Veasey v. Perry, 71 F.Supp.3d 627, 633-36 (S.D. Tex. 2014). The district court found that "[i]n each instance, the Texas Legislature relied on the justification that its discriminatory measures were necessary to combat voter fraud." Id. at 636. Contrary to the majority opinion's suggestion, neither Shelby County nor McClesky limits courts' consideration of such historical evidence in assessing discriminatory-purpose claims or proscribes the analysis employed by the district court here.
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. 481 U.S. at 291, 107 S.Ct. 1756. Determining that McClesky had failed to establish that the state had acted with a discriminatory purpose, the Supreme Court concluded, inter alia, that state laws "in force during and just after the Civil War" were not probative of the legislature's intent a century later. Id. at 298 n.20, 107 S.Ct. 1756. In the instant case, however, the district court did not rely solely on the more distant discriminatory practices by the state as evidence of the Texas Legislature's discriminatory purpose in passing SB 14. Rather, the district court considered the various and recurring historical examples of state discrimination in Texas as evidence of the unceasing effort and desire to enact discriminatory procedures that would suppress the minority vote. As the district court explained, this history "exhibits a recalcitrance that has persisted over generations despite the repeated intervention of the federal government and its courts on behalf of minority citizens." Veasey, 71 F.Supp.3d at 636. And, because of the Legislature's repeated invocation of ballot integrity concerns to justify discriminatory practices, the district court concluded that "[t]here has been a clear and disturbing pattern of discrimination in the name of combatting voter fraud in Texas." Id. Unlike the kind of isolated and remote evidence the Supreme Court rejected in McClesky, evidence of a pervasive pattern of operation is relevant to determining whether the legislature's current intent was discriminatory. While "history did not end in 1965," Shelby Cty., 133 S.Ct. at 2628, neither legal precedent nor logic requires that we act as if it started in 1965 and close our eyes to the historical context surrounding challenged state action.
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, 71 F.Supp.3d at 702 (relying on proposed anti-immigration laws and concerns by Texas legislators about Hispanic immigrants carrying leprosy following census results showing gains in minority populations to conclude that "the 2011 legislative session was a racially charged environment"). The majority may not simply discard the district court's findings by substituting its own assessment of the evidence for that of the district court. See Inwood Labs., 456 U.S. at 856, 102 S.Ct. 2182.
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.
EDITH BROWN CLEMENT, Circuit Judge, 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, 456 U.S. 273, 292, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982). The plurality discredits "much of the evidence" relied upon by the district court, Op. at 230-31, yet still manages to determine that remand is the proper course. After accounting for the full extent of errors in the district court's analysis, the record permits only one resolution of the factual issue: Plaintiffs failed to prove that the Texas Legislature passed SB 14 with a discriminatory purpose. Such a resolution mandates that we reverse and render. Accordingly, I dissent.
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., 429 U.S. 252, 265-68, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977).
In conducting the proper analysis, it is important to bear in mind plaintiffs' heavy burden in imputing discriminatory intent to an entire legislative body. "`Discriminatory
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, 71 F.Supp.3d 627, 632-39, 700 (S.D. Tex. 2014). The most pernicious of the measures cited by the district court predate the passage of the Voting Rights Act in 1965. In fact, despite some bygone history of official discrimination, Texas's voting practices had so improved by 1965 that it was not included in the original preclearance requirements of the Voting Rights Act. As the plurality must admit, the district court's heavy reliance on such outdated historical evidence was error. Op. at 230-32; see McCleskey v. Kemp, 481 U.S. 279, 298 n.20, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987) (noting that historical evidence not "reasonably contemporaneous with the challenged decision" has "little probative value"). Once stripped of error, the remaining historical background evidence on which the district court relied falls woefully short of "demonstrat[ing] a clear and consistent pattern of discriminatory action by the Texas Legislature." Allstate Ins. Co. v. Abbott, 495 F.3d 151, 160 (5th Cir. 2007). There is no substantial contemporary evidence of discrimination, and far from enough evidence to impugn the intentions of the entire Legislature in passing SB 14.
Second, the plurality fails to address the "specific sequence of events leading up [to] the challenged decision," Arlington Heights, 429 U.S. at 267, 97 S.Ct. 555, but an analysis of this factor makes clear that the district court erred. In Arlington Heights, the Supreme Court explained that courts should look to whether, for example, a legislative decision was precipitated by a sudden change in circumstances. See id. at 267 & n.16, 97 S.Ct. 555 (collecting cases and providing example of sudden change in zoning laws after learning of plans to erect integrated housing). Here, the district court relied on evidence that SB 14 became "increasingly harsh" in each successive draft. Veasey, 71 F.Supp.3d at 700. That is not the type of specific-sequence evidence, however, envisioned by the Court in Arlington Heights. The events leading up to the enactment of SB 14 demonstrate that lawmakers were concerned about protecting the integrity of elections, a concern backed by surveys showing that Texas voters of all races agreed with this goal and supported requiring photo IDs to vote. There is no evidence of sudden changed circumstances; in fact, the district court noted that SB 14 was debated over a lengthy six-year period. Id.
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 iterations
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, 429 U.S. at 265, 97 S.Ct. 555 ("[I]t is because legislators and administrators are properly concerned with balancing numerous competing considerations that courts refrain from reviewing the merits of their decisions, absent a showing of arbitrariness or irrationality.").
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., 553 U.S. 181, 196, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008) ("There is no question about the legitimacy or importance of the State's interest in counting only the votes of eligible voters.... While the most effective method of preventing election fraud may well be debatable, the propriety of doing so is perfectly clear."). The fit between the law's goals and provisions does not show it was enacted with discriminatory intent.
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, 429 U.S. at 268, 97 S.Ct. 555. "In some extraordinary instances the members might be called ... to testify concerning the purpose of the official action...." Id. As the Supreme Court has long recognized, however, "[p]lacing a decisionmaker on the stand is ... `usually to be avoided'" because "judicial inquiries into legislative or executive motivation represent a substantial intrusion into the workings of other branches of government." Id. at 268 n.18, 97 S.Ct. 555.
The district court relied in large part on accusations by the bill's opponents about proponents' motives. See Veasey, 71 F.Supp.3d at 655-57. Such biased conjecture cannot form the basis of a finding of discriminatory intent by the entire Legislature. See United States v. O'Brien, 391 U.S. 367, 384, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) ("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.").
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, 429 U.S. at 268, 97 S.Ct. 555. Despite no smoking gun that would show discriminatory intent in the voluminous evidence, the plurality asserts that we should instead look to circumstantial evidence to infer intent, as an "invidious purpose" may be "hiding." Op. at 240-41. The Court in Arlington Heights noted the need to consider circumstantial evidence in cases where testimony by the actual decisionmakers was "barred by privilege." 429 U.S. at 268, 97 S.Ct. 555. But, as we found in Price v. Austin Independent School District, where decisionmakers are called to testify about their actions and "the justifications advanced in their testimony do not demonstrate a pretext for intentionally discriminatory actions, the logic of Arlington Heights suggests that the [direct] evidence... is actually stronger than the circumstantial evidence proffered by the plaintiffs." 945 F.2d at 1318. Here too, the direct evidence, and plaintiffs' failure to demonstrate discriminatory purpose from it, overwhelmingly favor a finding of no discriminatory intent. As the panel correctly noted, it is rather unlikely that a discriminatory motive "would permeate a legislative body and not yield any private memos or emails." Veasey v. Abbott, 796 F.3d 487, 503 n.16 (5th Cir. 2015), reh'g en banc granted, 815 F.3d 958.
The Supreme Court has recognized the gravity of judicial inquiries into alleged improper motives by a legislative body. O'Brien, 391 U.S. at 383-84, 88 S.Ct. 1673 (stating that judicial "[i]nquiries into congressional motives or purposes are a hazardous matter" and the "stakes are ... high"). The plurality takes lightly the aspersions it casts on the Legislature by allowing such a weak evidentiary record to potentially support a finding of racial animus. When there is no "proof that a discriminatory purpose has been a motivating factor in the decision," as is the case here, we owe "judicial deference." Arlington Heights, 429 U.S. at 265-66, 97 S.Ct. 555.
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, 456 U.S. at 292, 102 S.Ct. 1781. Despite extensive discovery of legislators' private materials, plaintiffs have brought forth no direct evidence of discriminatory intent. What evidence remains, after accounting for the district court's errors, does not suffice to conclude that SB 14 was enacted "`because of,' not merely `in spite of,'" a disparate impact on minorities. Feeney, 442 U.S. at 279, 99 S.Ct. 2282.
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, 429 U.S. at 270-71, 97 S.Ct. 555. There is no reason to permit plaintiffs — who have not carried their burden — another opportunity to prove their case. See id. at 271, 97 S.Ct. 555 ("This conclusion ends the constitutional inquiry."). Unfortunately, the plurality chooses to provide plaintiffs another chance and leaves the district court with a disorganized, piecemeal analysis of the Arlington Heights factors that confuses the law and offers no clear direction on remand.
For these reasons, I would reverse the district court's holding as to discriminatory purpose and render judgment for the State on this claim.
JENNIFER WALKER ELROD, Circuit Judge, 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).
Texas Dep't of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., ___ U.S. ___, 135 S.Ct. 2507, 2523, 192 L.Ed.2d 514 (2015) (internal alterations, quotation marks, and citation omitted). I agree with Judge Jones's opinion and Judge Easterbrook's opinion for the Seventh Circuit that the Gingles
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. ___, 133 S.Ct. 2612, 2619, 186 L.Ed.2d 651 (2013); South Carolina v. Katzenbach, 383 U.S. 301, 325-26, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966); U.S. Const. amend. 15 §§ 1-2. The use of that power "must be justified by current needs." Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 203, 129 S.Ct. 2504, 174 L.Ed.2d 140 (2009). The examples of decades-old state discrimination relied on by Plaintiffs are unavailing. See Shelby Cty., 133 S.Ct. at 2622, 2627 (explaining that the Voting Rights Act "imposes current burdens and must be justified by current needs" and rejecting reliance on "decades-old data and eradicated practices"). Nor does the existence of societal economic disparities render SB 14 unlawful. See Frank, 768 F.3d at 753 ("Section 2(a) forbids discrimination by `race or color' but does not require states to overcome societal effects of private discrimination that affect the income or wealth of potential voters.").
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., 135 S.Ct. at 2524 ("Courts should avoid interpreting disparate-impact liability to be so expansive as to inject racial considerations" into government decision-making.).
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, 553 U.S. at 198, 128 S.Ct. 1610 (upholding Indiana's voter ID law). The requirements imposed by SB 14 are not outside the usual inconveniences expected of citizens exercising their right to vote, and, as in Crawford, they provide no basis for overturning a race-neutral law by which the State seeks to prevent in-person voter fraud. See id. at 196, 128 S.Ct. 1610 ("[T]he interest in orderly administration and accurate recordkeeping provides a sufficient justification for carefully identifying all voters participating in the election process.").
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.
GREGG COSTA, Circuit Judge, dissenting from Part II(A)(1):
The six years of debate in the Texas Legislature before voter ID passed demonstrates
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, 71 F.Supp.3d 627, 698-703 (S.D. Tex. 2014).
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. ___, 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013). Maj. Op at 231 & n.14. Shelby County held that Congress exceeded its power under the Fifteenth Amendment in subjecting nine states to the "extraordinary measure[]" of having to preclear every change in voting laws. Id. at 2619. It found Congress's formula for selecting these states unconstitutional because it relied on "decades-old data and eradicated practices," in particular the use of literacy tests which had long been abolished and
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. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989) ("If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overturning its own decisions.").
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 preclearance 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. 133 S.Ct. at 2624. In the example of case-by-case litigation here that seeks to establish a current constitutional violation, Arlington Heights just says that history is one of many factors that may be considered. And it's not just any history that courts should consider, but a historical background that "reveals a series of official actions taken for invidious purposes." Arlington Heights, 429 U.S. at 267, 97 S.Ct. 555.
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." McCleskey
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:
71 F.Supp.3d at 700 (alterations in original) (footnotes omitted). The natural reading of this single paragraph is that the general first sentence is providing background, and it is only the demographic changes that the court is citing as the Arlington Heights context for "the current events." The majority opinion not only finds no error with this latter conclusion, but endorses its relevance. Maj. Op. at 239-41.
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,"
LULAC v. Perry, 548 U.S. 399, 439-40, 126 S.Ct. 2594, 165 L.Ed.2d 609 (2006) (quoting Vera v. Richards, 861 F.Supp. 1304, 1317 (S.D. Tex. 1994)). Deeming a similar discussion here to be legal error risks making rhetoric a basis for reversal. The natural starting point of any historical discussion is the beginning. Maj. Op. at 232 n.14 (recognizing that "history (even `long-ago history') provides context to modern-day events"). And the bigger problem of locating error in sections of the district court's opinion that do not even analyze the claim at issue is that it results in the fact finding of judges being much more susceptible to reversal than those of juries, which do not have to summarize the evidence or provide reasons for their decisions.
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," 71 F.Supp.3d at 702, or anywhere else in the discriminatory purpose analysis. Instead, they appear in a section recounting testimony (from both sides) about the "Method and Result of Passing SB 14." Id. at 655-57. The discussion of "Contemporaneous Statements" that does appear in the purpose analysis is balanced, noting that "there are no `smoking guns' in the form of an SB 14 sponsor making an anti-African-American or anti-Hispanic statement." Id. at 702. The only legislator quoted is not an opponent, but bill supporter Todd Smith who admitted it was "common sense" that voter ID would have disproportionate effects on racial minorities. Id. The majority opinion cites that testimony as relevant evidence for the purpose claim. Maj. Op. at 236. That leaves only the district court's conclusion that the 2011 legislative session was racially charged in light of other pending legislation, id. at 702, which seems like an inference a factfinder should be entitled to draw.
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 cast 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,"
Veasey v. Perry, 71 F.Supp.3d at 679 (footnotes omitted) (citing IND. CODE § 3-5-2-40.5(a)(3) (2014), IND. CODE § 3-11.7-5-2.5 (2011), and Crawford, 553 U.S. at 187-88 & n.6, 128 S.Ct. 1610). The district court specifically found that the Texas Legislature stripped an indigency exception from SB 14, id. at 652, and that "[w]hen the legislature rejected student IDs, state government employee IDs, and federal IDs, they rejected IDs that are disproportionately held by African-Americans and Hispanics," id. at 658. These differences are highly salient to the discriminatory impact analysis.
Seamon v. Upham, 536 F.Supp. 931, 989 (E.D. Tex.) (citations omitted), vacated on other grounds, 456 U.S. 37, 102 S.Ct. 1518, 71 L.Ed.2d 725 (1982).
One of the dissenting opinions claims that we confuse partisanship for racism in our analysis of whether the Legislature acted with a discriminatory intent. Intentions to achieve partisan gain and to racially discriminate are not mutually exclusive. As another of the dissenting opinions points out, acting to preserve legislative power in a partisan manner can also be impermissibly discriminatory. Ketchum v. Byrne, 740 F.2d 1398, 1408 (7th Cir. 1984) (noting that "racial discrimination [may be and has been a] necessary accompaniment of [an] action taken to protect incumbencies"). In this case, the district court found that the party in power in the Texas Legislature faced "a declining voter base and [stood to] gain partisan advantage by suppressing the ... votes of African-Americans and Latinos." See Veasey v. Perry, 71 F.Supp.3d at 700. Once again, the disagreement centers in part on the fact that some of the dissenting opinions would re-weigh the evidence and disregard the district court's fact findings, which we are not entitled to do. See Pullman-Standard, 456 U.S. at 292, 102 S.Ct. 1781.
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.
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, 2016 WL 1650774, at *16 (M.D.N.C. Apr. 25, 2016).
Frank II, 819 F.3d at 386-87 (emphasis added).
Additionally, the State suggests that conveying the disparity in ID possession in comparative percentages is misleading. See Frank, 768 F.3d at 755 n.3 (stating that purveying data as a comparative percentage is a "misuse" that "produces a number of little relevance to the problem"). Instead, the State believes a less deceptive method is to state that 2% of Anglo, 5.9% of Hispanic, and 8.1% of African-American registered voters lack SB 14 ID. Even assuming the State is correct, conveying the disparities in the way the State suggests does not change the analysis. The district court did not err in concluding that SB 14 disproportionately impacts Hispanic and African-American voters.
Finally, the State argues for the first time on appeal that there is no disparate impact where, as here, the gross number of Anglos without SB 14 ID — 296,156 people — almost totals the number of African-American, Hispanic, and "other" voters without SB 14 ID — 312, 314 people. Courts have never required the gross number of affected minority voters to exceed the gross number of affected Anglo voters. See, e.g., League of Women Voters, 769 F.3d at 233; see also Frank, 768 F.3d at 753-54 (comparing the percentage of minority voters without qualifying ID to the percentage of Anglos without such ID). We decline to address this argument raised for the first time on appeal. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 341-42 (5th Cir. 1999).
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].
S. REP. No. 97-417, at 36 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 207-08 (footnotes omitted).
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.
Since Arlington Heights, courts frequently rely on the legislative privilege to repel attempts by plaintiffs to subject legislators to the burdens of civil litigation. See In re Hubbard, 803 F.3d 1298, 1307-08 (11th Cir. 2015) (quashing subpoenas for the production of documents served on legislators and a Governor in a First Amendment retaliation case); Reeder v. Madigan, 780 F.3d 799, 806 (7th Cir. 2015) (dismissing, based on legislative immunity, plaintiff's claim that the Illinois Senate violated his First Amendment rights by denying him media credentials); Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408 (D.C. Cir. 1995) (quashing subpoenas for disclosure of subcommittee documents served on members of a Congressional subcommittee by private defendants in an unrelated civil lawsuit); MINPECO, S.A. v. Conticommodity Servs., Inc., 844 F.2d 856 (D.C. Cir. 1988) (same).
In this case, however, the district court disregarded this authority and opted to take a piecemeal, balancing approach to the legislators' legislative privilege.
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.
Gingles, 478 U.S. at 44-45, 106 S.Ct. at 2763-64.
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, 768 F.3d at 752 (92.7% of Whites, 86.8% of Blacks, and 85.1% of Hispanics possessed photo IDs), with Veasey v. Abbott, 796 F.3d at 509 (panel opinion discussing that plaintiffs' expert found that 98% of Whites, 91.9% of Blacks, and 94.1% of Hispanics possessed photo IDs). In other words, far more Texas voters of each race possess the requisite photo IDs; hence one might infer that the scope of diminished opportunity to participate is far smaller across the board in Texas than in Wisconsin. Moreover, the racial spread between Texas and Wisconsin in terms of ID possession is about the same in the case of Whites to Blacks and narrower in the case of Whites to Hispanics. On a comparative statistical basis, then, there should be no difference in the outcome of this case and Frank.
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, 96 F.3d 600, 618-19 (2d Cir. 1996) (school); Diaz v. San Jose Unified Sch. Dist., 733 F.2d 660, 675 (9th Cir. 1984) (school); Smith v. Town of Clarkton, N.C., 682 F.2d 1055, 1066-67 (4th Cir. 1982) (housing); United States v. Texas Ed. Agency, 600 F.2d 518, 527 (5th Cir. 1979) (school); Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 144-45 (3d Cir. 1977) (housing).
