Marc Veasey v. Greg Abbott , 888 F.3d 792 ( 2018 )

Case: 17-40884 Document: 00514449897 Page: 1 Date Filed: 04/27/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 27, 2018
No. 17-40884
Lyle W. Cayce
Clerk
MARC VEASEY; JANE HAMILTON; SERGIO DELEON; FLOYD CARRIER;
ANNA BURNS; MICHAEL MONTEZ; PENNY POPE; OSCAR ORTIZ; KOBY
OZIAS; LEAGUE OF UNITED LATIN AMERICAN CITIZENS; JOHN
MELLOR-CRUMMEY; DALLAS COUNTY, TEXAS; GORDON BENJAMIN;
KEN GANDY; EVELYN BRICKNER,
Plaintiffs - Appellees
v.
GREG ABBOTT, in his Official Capacity as Governor of Texas; ROLANDO
PABLOS, in his Official Capacity as Texas Secretary of State; STATE OF
TEXAS; STEVE MCCRAW, in his Official Capacity as Director of the Texas
Department of Public Safety,
Defendants - Appellants
--------------------------------------------------------
UNITED STATES OF AMERICA,
Plaintiff - Appellee
TEXAS LEAGUE OF YOUNG VOTERS EDUCATION FUND; IMANI
CLARK,
Intervenor Plaintiffs - Appellees
v.
STATE OF TEXAS; ROLANDO PABLOS, in his Official Capacity as Texas
Secretary of State; STEVE MCCRAW, in his Official Capacity as Director of
the Texas Department of Public Safety,
Defendants - Appellants
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--------------------------------------------------------
TEXAS STATE CONFERENCE OF NAACP BRANCHES; MEXICAN
AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF
REPRESENTATIVES,
Plaintiffs - Appellees
v.
ROLANDO PABLOS, in his Official Capacity as Texas Secretary of State;
STEVE MCCRAW, in his Official Capacity as Director of the Texas
Department of Public Safety,
Defendants - Appellants
----------------------------------------------------------
LENARD TAYLOR; EULALIO MENDEZ, JR.; LIONEL ESTRADA; ESTELA
GARCIA ESPINOSA; MAXIMINA MARTINEZ LARA; LA UNION DEL
PUEBLO ENTERO, INCORPORATED,
Plaintiffs - Appellees
v.
STATE OF TEXAS; ROLANDO PABLOS, in his Official Capacity as Texas
Secretary of State; STEVE MCCRAW, in his Official Capacity as Director of
the Texas Department of Public Safety,
Defendants - Appellants
Appeal from the United States District Court
for the Southern District of Texas
Before HIGGINBOTHAM, JONES, and GRAVES, Circuit Judges.
EDITH H. JONES, Circuit Judge:
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This appeal by the state of Texas follows remand from the en banc court
concerning the state’s former photo voter ID law (“SB 14”). During the remand,
the Texas legislature passed a law designed to cure all the flaws cited in
evidence when the case was first tried. The legislature succeeded in its goal.
Yet the plaintiffs were unsatisfied and successfully pressed the district court
to enjoin not only SB 14, but also the new ameliorative law (“SB 5”). Because
the district court’s permanent injunction and order for further relief abused its
discretion, we reverse and render.
Senate Bill 14 (“SB 14”) was enacted in 2011 and generally required
voters to present one of five forms of government-issued identification in order
to vote at the polls. Several Private Plaintiffs (“Plaintiffs”) and the
Department of Justice challenged SB 14 on the grounds the bill: (1) was a poll
tax; (2) purposefully abridged the right to vote on account of race, in violation
of Section 2 of the Voting Rights Act (the “VRA”); (3) resulted in abridgment of
the right to vote on account of race, in violation of Section 2 of the VRA; and
(4) unconstitutionally burdened the right to vote.
In 2014, the district court held: (1) SB 14 had a discriminatory result
because it provided African American and Hispanic voters less opportunity to
participate in the political process and elect their candidates of choice, and
(2) Texas enacted SB 14 at least in part because of its adverse effect on
minority voters. Veasey v. Perry, 71 F. Supp. 3d 627, 694 (S.D. Tex. 2014). The
district court permanently enjoined Texas from enforcing SB 14’s voter-ID
provisions and reinstated Texas’s preexisting voter-ID law, which required in-
person voters to present either a voter registration certificate or execute an
eligibility affidavit and produce another form of identification. See id. at 702-
03. In Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016) (en banc), cert. denied,
137 S. Ct. 612 (2017) (“Veasey II”), this court affirmed the district court’s
finding that SB 14 had an unlawful disparate impact on African American and
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Hispanic voters in violation of § 2 of the VRA. However, the en banc court
reversed the district court’s determination SB 14 was enacted with a
discriminatory purpose, and remanded the case for further proceedings and for
entry of an interim remedy before the 2016 general election.
In August 2016, the district court entered an interim remedy agreed to
by all parties. In fashioning an interim remedy, this court directed the district
court to “take special care” to honor the State’s policy preferences to implement
a photo-ID system and emphasized that a remedy that “[s]imply revert[ed] to
the system in place before SB 14’s passage would not fully respect these policy
choices.” Veasey II, 830 F.3d at 269, 271. The parties worked together to
develop a remedy whereby in-person voters who lacked an SB 14 ID could cast
a regular ballot upon completing a Declaration of Reasonable Impediment
(“DRI”) and presenting a specified form of identification. The seven possible
impediments were: (1) lack of transportation, (2) lack of documents necessary
to obtain acceptable ID, (3) work schedule, (4) lost or stolen ID, (5) disability or
illness, (6) family responsibility, and (7) ID applied for but not yet received.
The DRI also offered an “other” box, allowing voters to write anything in
the blank space to be able to vote. The declaration further provided that the
reasonableness of the voter’s impediment or difficulty could not be questioned
by election officials, and the voter signed the declaration “upon penalty of
perjury.” The specified forms of ID a voter was required to present in order to
take advantage of the reasonable impediment declaration were the same
documents required to vote under pre-SB 14 law: a valid voter-registration
certificate, a certified birth certificate, a copy or original of a current utility
bill, bank statement, government check, paycheck, or other government
document showing the voter’s name and address. The interim remedy was
used for the November 2016 general election and remained in place pending
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further order of the district court, with the understanding that all parties
“preserve[d] their right to seek or oppose future relief.”
In February and March 2017, the Texas Legislature informed the district
court about legislation being considered during the 2017 session “to adjust
SB 14 to comply with the Fifth Circuit’s decision.” Both Texas and the United
States asked the district court to postpone further liability proceedings until
the end of the 2017 legislative session. Indeed, in Veasey II, this court directed
the district court to reexamine the discriminatory purpose claim, “bearing in
mind the effect any interim legislative action taken with respect to SB-14 may
have.” Veasey II, 830 F.3d at 272. Nonetheless, the district court proceeded to
issue an opinion on the SB 14 discriminatory purpose claim on April 1, 2017.
In its 10-page opinion, the district court simply incorporated most of its prior
findings, excluded most of those findings that this court found inadmissible,
and reiterated the conclusion that SB 14 was enacted, at least in part, for a
racially discriminatory purpose. The district court also ordered a hearing on
remedial procedures to be conducted after the close of the legislative session.
Senate Bill 5 (“SB 5”) was enacted on May 31, 2017 as a legislative
remedy to cure and replace SB 14. SB 5 is fashioned after the interim remedy
and codifies a reasonable impediment procedure for voters who lack and cannot
reasonably obtain a form of SB 14 identification. See S.B. 5, §§ 1-2. The same
seven impediments listed in the interim remedy are provided to voters by SB 5.
See id. § 2. Notably, these seven impediments cover every burden alleged by
the 27 voters relied on by Plaintiffs at trial of their initial suit. Like the interim
remedy, SB 5 requires a voter to swear or affirm under penalty of perjury that
he has a reasonable impediment preventing the obtaining of compliant photo
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ID, and it prohibits election officials from questioning the reasonableness of
the impediments sworn to by the voter. See S.B. 5 §§ 2-3.
SB 5 differs from SB 14 in the following additional ways: (1) SB 5 extends
the period within which an expired form of identification will be accepted for
voting, (2) SB 5 expands the list of acceptable forms of identification, (3) SB 5
requires the implementation of mobile locations for obtaining election
identification certificates, and (4) SB 5 removes the “other” option offered in
the interim remedy. See id. §§ 2-3; see also Texas claims the open-ended “other”
option was removed in SB 5 to address abuses from the November 2016
election. 1
Although SB 5 was not set to take effect until January 1, 2018, Texas
agreed to implement the reasonable impediments provision laid out in the
district court’s interim remedy until then. Texas also publicly committed to
provide written notice of the new requirement to all active registered voters by
the end of 2017, train its election officials on SB 5 procedures, and spend
$4 million over two years on voter education and outreach
Following passage of SB 5, the State moved for reconsideration of the
district court’s discriminatory purpose finding in light of the amendments to
SB 14. All parties agreed to rely on the existing record and forego an
evidentiary hearing. 2 Indeed, Plaintiffs never sought leave to amend their
Complaint to add claims specifically challenging SB 5.
The district court denied the State’s motion. On August 23, 2017, the
court entered a remedial order permanently enjoining SB 14 as well as SB 5,
1Explanations such as “Have Procrastinated”, “Protest of Voter ID Law”, “Because I
didn’t bring it”, and “It’s unconstitutional,” were given in reasonable impediment
declarations in the November 2016 election.
2 The district court relied on “the evidence already of record in this case,” noting “the
existing record addresses much of the Section 2 analysis that must be applied to SB 5.”
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vacating the interim remedy, and reinstating the pre-SB 14 law that lacked
any photo voter ID requirement. The district court held that the interim
remedy was “limited to addressing the discriminatory results claim,” and in
light of its finding of a discriminatory purpose, the interim remedy was no
longer appropriate and broader relief was warranted. The court placed the
burden on the State, holding Texas failed to show SB 5 “fully ameliorates the
discriminatory purpose or result of SB 14.” Although the district court refused
to find SB 5 violated § 2 of the VRA or the Constitution, 3 it nevertheless
reasoned, “the Court’s finding of discriminatory intent strongly favors a
wholesale injunction against the enforcement of any vestige of the voter photo
ID law,” and SB 5 “is built upon the ‘architecture’ of SB 14
The district court ordered the commencement of a VRA § 3(c)
preclearance bail-in hearing and issued broad relief enjoining the State from
enforcing SB 14 and SB 5. 4 On September 5, 2017, this court granted the
Nevertheless, at least eleven times in its order, the district court stated there was “no
evidence in the record” to support its reasoning.
3See Veasey v. Abbott, 265 F. Supp. 3d 684, 691 n. 9 (S.D. Tex. 2017) (“It would be
premature to try and evaluate SB 5 as the existing voter ID law in Texas because there is no
pending claim to that effect before the Court, which claim would place the burden of proof
elsewhere–on the claimant.”).
4This court stayed the district court’s injunction pending appeal, noting the State “has
made a strong showing that th[e] reasonable-impediment procedure remedies plaintiffs’
alleged harm and thus forecloses plaintiffs’ injunctive relief.” Veasey, 870 F.3d at 391-92.
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State’s emergency motion and stayed the district court’s orders until the final
disposition of this appeal. Veasey v. Abbott, 870 F.3d 387, 392 (5th Cir. 2017).
STANDARDS OF REVIEW
This court reviews questions of jurisdiction de novo, including arguments
that a case or controversy has become moot. See In re Scruggs, 392 F.3d 124,
128 (5th Cir. 2004).
A district court’s issuance of a permanent injunction to remedy a
violation of § 2 of the VRA is reviewed for abuse of discretion. See United States
v. Brown, 561 F.3d 420, 435 (5th Cir. 2009). However, where an injunction is
“grounded in erroneous legal principles,” injunctive relief is not warranted and
the district court’s decision will be reviewed de novo. See Janvey v. Alguire,
647 F.3d 585, 592 (5th Cir. 2011) (quoting Byrum v. Landreth, 566 F.3d 442,
445 (5th Cir. 2009)). Additionally, under this Circuit’s precedent, a district
court’s interpretation of this court’s remand order, “including whether the law-
of-the-case doctrine or mandate rule forecloses any of the district court’s action
on remand,” is reviewed de novo. United States v. Elizondo, 475 F.3d 692, 695
(5th Cir. 2007).
DISCUSSION
On appeal, the state of Texas and the United States raise complementary
arguments. The state contends initially that this case has become moot,
requiring vacatur of the court’s remand finding of intentional discrimination,
by the passage of SB 5 in 2017. The State also seeks reversal of the district
court’s renewed finding of unconstitutional discrimination. Together, the state
and the United States contend that the district court’s remedial injunction
must be reversed and SB 5 reinstated as a valid remedy for the Plaintiffs’
claims. We consider each of these issues in turn.
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A. Mootness
Ordinarily, a lawsuit challenging a statute would become moot by the
legislature’s enactment of a superseding law. Diffenderfer v. Cent. Baptist
Church of Miami, Fla., Inc., 404 U.S. 412, 414, 92 S. Ct. 574, 575 (1972). In
such a case, no live controversy remains concerning the old law, because it is
no longer in force. Any federal court ruling on the old law would have no
practical effect and the court’s conclusions would constitute an advisory
opinion. Further, dismissing as moot in light of the superseding statute would
require the court to vacate its prior ruling. U.S. Bancorp Mortg. Co. v. Bonner
Mall P’ship, 513 U.S. 18, 29, 115 S. Ct. 386, 393 (1994).
This is not the archetypal case. Veasey II remanded to the district court
with instructions to (a) assume the “unwelcome obligation” of devising an
interim remedy to eliminate the Section 2 Voting Rights Act violations pending
the 2016 elections; (b) reconsider the finding of unconstitutional intentional
discrimination without “facts” the en banc court held inapposite; and (c) be
mindful that any new photo voter ID law subsequently passed by the state
would “present a new circumstance not addressed here” and “concerns about a
new bill would be the subject of a new appeal for another day.” 830 F.3d at
270-71. The parties heatedly dispute the extent to which the district court
properly carried out this court’s mandate, but without doubt, the court’s post-
remand rulings touch each of these instructions.
Consequently, this appeal arrives in a posture similar to Operation
PUSH, in which this court affirmed the district court’s conclusion that the
state’s legislative remedy for Section 2 violations was adequate. Miss. State
Chapter, Operation PUSH, Inc. v. Mabus, 932 F.2d 400, 412-13 (5th Cir. 1991).
This court evaluated both the liability findings and the new law pertinent to
the question whether the district court abused its discretion. There was no
suggestion of mootness arising from the passage of the responsive legislation,
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which was analyzed for its effectiveness as a proposed remedy. Id. at 409
(finding the challenge against the Section 2 violations “not moot” because the
lower court’s decision under the remedial legislation “was the remedy decision
growing out of the holding under” the original legislation). While the sequence
of events on remand differs from Operation PUSH, the same issues are before
us on appeal: the status of the state’s liability for intentional discrimination
against indigent minority voters, and whether the district court abused its
discretion in rejecting SB 5 as a remedy for the Plaintiffs’ claims. This appeal
is not moot.
B. Scope of the State’s Liability
The Plaintiffs’ claims, framed as violations of both Section 2 of the Voting
Rights Act and the Fourteenth Amendment, attacked the alleged racial
disparity in indigent minority voters’ possession of and access to SB 14-
required photo voter IDs. The Plaintiffs could not condemn the principle of
requiring some type of photo ID, a principle upheld by the Supreme Court in
Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 191, 128 S. Ct. 1610, 1616-
17 (2008). Nor could Plaintiffs refute that over 95% of all Texas voters,
irrespective of race, already possess ID satisfactory under SB 14. Their
evidence thus targeted racially disparate indigency, the lack of indigents’ ready
access to drivers’ licenses or birth certificates or EICs (“election identity
cards”), and the law’s limited exceptions to the photo ID requirement. Aside
from expert testimony, 27 Plaintiffs’ witnesses testified to their specific
difficulties in complying with SB 14 on these grounds.
Whatever the strength of the district court’s renewed finding of
purposeful discrimination by the Texas legislature, the discrimination has to
be gauged by its impact on indigent minority Texas voters according to the
evidence presented at trial. In any discrimination case, the proof of the extent
of disparate impact or disparate treatment defines the scope of the defendant’s
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liability. Thus focused, we need not review the court’s liability findings
because even if we were to affirm, the court’s overreach in its remedial
injunction and proceedings was an abuse of discretion meriting reversal.
C. The Remedial Order
The remedy for violations of voting rights is governed by traditional
equitable standards. North Carolina v. Covington, 137 S. Ct. 2211 (2017) (per
curiam) (“Relief in redistricting cases is ‘fashioned in the light of well-known
principles of equity.’”) (citation omitted)). Even if the violation is founded on
the Fourteenth Amendment, “[a]s with any equity case, the nature of the
violation determines the scope of the remedy.” Swann v. Charlotte
Mecklenburg Bd. of Educ., 402 U.S. 1, 17, 91 S. Ct. 1267, 1276 (1971). In voting
rights cases, the Supreme Court has cautioned that federal courts’ equitable
powers are broad but not unlimited. Whitcomb v. Chavis, 403 U.S. 124, 161,
91 S. Ct. 1858, 1878 (1971). Relief must be tailored to avoid undue interference
with a legislature’s judgment in order to appropriately reconcile constitutional
requirements and legislative goals. Cook v. Luckett, 735 F.2d 912, 917 (5th
Cir. 1984). Operation PUSH relied on these rules, see 932 F.2d at 406, as
reiterated in our case law. See id. (citing Haitian Refugee Ctr. v. Smith,
676 F.2d 1023, 1041 (5th Cir. 1982) for the principle that an equitable remedy
must be fashioned to address the constitutional violation established).
Operation PUSH also noted that unless remedial legislation designed to
address voting rights violations is itself infected with a discriminatory purpose,
federal courts are obliged to defer to the legislative remedy. 932 F.2d at 406-
07. See Upham v. Seamon, 456 U.S. 37, 40-41, 102 S. Ct. 1518, 1521 (1982);
Westwego Citizens for Better Gov’t v. City of Westwego, 946 F.2d 1109, 1123-24
(5th Cir. 1991); Wright v. City of Houston, Miss., 806 F.2d 634, 635 (5th Cir.
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1986); Kirksey v. Bd. of Supervisors of Hinds Cty., 554 F.2d 139, 142 (5th Cir.
1977) (en banc), cert. denied, 434 U.S. 968 (1977). 5
The district court here held that because SB 14 was enacted with a
discriminatory purpose, its effects must be eliminated “root and branch.”
Because SB 5 retains characteristics of SB 14’s photo voter ID requirements,
the district court did not defer to the state. Indeed, the district court
acknowledged it was “not clear” what would constitute a proper restraint from
legislative intrusion but then held that “[e]ven if some measure of deference
were required … that deference yields if SB 5 is not a full cure of the terms
that render SB 14 discriminatory.” The court burdened the state to prove that
the new remedial statute lacks any residual discriminatory effect. After
concluding that the state did not meet its burden, the court imposed the
previously described injunction against both SB 14 and SB 5 and ordered a
proceeding to determine the state’s potential liability for Section 3(c)
preclearance.
5 Only at the end of the dissent is there an attempt to distinguish our controlling
authority, Operation PUSH, based on whether the challenged state voting statute had merely
a discriminatory impact rather than invidious intent. The distinction is inapposite for
several reasons. First, Operation PUSH evolved from a system of dual voter registration in
Mississippi, the remedy for which was challenged on constitutional and VRA Section 2
grounds, leading this court ultimately to sanction deference to a further curative state statute
unless the plaintiffs proved constitutional or statutory infirmities in that
legislation. Second, Operation PUSH relies on general equitable principles, including those
in the desegregation context, see 932 F.2d at 406 n.5, in requiring both “proper respect for
the integrity and function of local government institutions,” id., quoting Missouri v. Jenkins,
110 S. Ct. 1651, 1663 (1990), and authorizing judicial remedies “only if” local authorities fail
to proffer acceptable remedies, id., citing Swann v. Charlotte-Mecklenburg Bd. of Educ.,
402 U.S. 1, 15, 91 S. Ct. 1267, 1276 (1971). The reasoning of Operation PUSH is governing
precedent in our circuit and precludes application of NC State Conf. of NAACP v. McCrory,
831 F.3d 204, 239-241 (4th Cir. 2016), cert. denied sub nom. N. Carolina v. N. Carolina State
Conference of NAACP, 137 S. Ct. 1399 (2017), which invalidated, without deference or
separate findings of unconstitutional intent or effect, a curative voter ID provision enacted
by the state legislature after the earlier legislation had been found discriminatory.
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This injunction and order far exceed the scope of the actual violations
found by the court. Under the circumstances of this case, the court had no
legal or factual basis to invalidate SB 5, and its contemplation of Section 3(c)
relief accordingly fails as well. The remedial order constitutes an abuse of
discretion. In contrast, until a plaintiff pleads and proves some constitutional
or statutory infirmity in SB 5, that law must be reinstated, and it affords a
generous, tailored remedy for the actual violations found.
The court erred first in concluding that SB 5 must be invalidated as the
tainted fruit of SB 14, which the court again found unconstitutionally
discriminatory. As noted above, equitable remedies must be tailored to and
may not exceed the scope of a defendant's violation. While the “root and
branch” description required eliminating the vestiges of segregation that
permeated entire school systems, Green v. County School Board of New Kent
County, Virginia, 391 U.S. 430, 88 S. Ct. 1689 (1968), or were not remedied by
continued segregation, United States v. Virginia, 518 U.S. 515, 116 S. Ct. 2264
(1996), the court here was not required to annul the legislature’s intent for a
photo voter ID protection of ballot integrity, nor did this court’s remand order
foreordain such relief. 6 The district court erroneously relied on that rule
although, according to the evidence, SB 14 was racially discriminatory against
only the subset of indigent minority voters and did not affect the vast majority
of Texas voters of all races. In such situations, we are bound by the
requirement to tailor injunctive relief, examining whether the new statute had
a discriminatory purpose or effect. See United States v. Virginia, 518 U.S. at
546-47, 116 S. Ct. at 2282-83; Wise v. Lipscomb, 437 U.S. 535, 540, 98 S. Ct.
2493, 2497 (1978); Westwego Citizens, 946 F.2d at 1123-24.
6 To the contrary, the Veasey II majority stated a “primary concern” of the district
court was to respect the policy choices made by the Legislature in passing SB 14. 830 F.3d
at 242-43.
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The court also erred in apparently presuming, without proof, that any
invidious intent behind SB 14 necessarily carried over to and fatally infected
SB 5. This case is unlike Hunter v. Underwood, 471 U.S. 222, 105 S. Ct. 1916
(1985), which overturned an intentionally discriminatory, yet facially neutral,
felon disenfranchisement law that had been on the books for a hundred years
without substantial alteration. Id. at 1923. As this court has noted,
substantial, race-neutral alterations in an old unconstitutional law may
remove the discriminatory taint. Cotton v. Fordice, 157 F.3d 388, 391-92 (5th
Cir. 1998). And in any event, because intervening legislation “with meaningful
alterations may render the current law valid” notwithstanding the previous
drafter’s intent, the “state of mind of the [subsequent legislature] must also be
considered.” Chen v. City of Houston, 206 F.3d 502, 521 (5th Cir. 2000). The
court here overlooked SB 5’s improvements for disadvantaged minority voters
and neither sought evidence on nor made any finding that the Texas
legislature in 2017 intentionally discriminated when enacting SB 5. In fact,
no evidence was offered to show that the agreed interim remedy, in place for
the full panoply of elections in a Presidential year, was insufficient—and that
remedy served as the model for SB 5.
Having relied on incorrect presumptions of taint and invalidity, the
district court then failed to defer to the legislature’s proffered remedy. As
Operation PUSH made clear, a federal court is “precluded from substituting
even what it considers to be an objectively superior plan for an otherwise
constitutionally and legally valid plan ... enacted by the appropriate state
governmental unit.” 932 F.2d at 406-07. “[T]he fact that broader relief was
possible did not authorize the court to invalidate the proffered solution.” Id. at
407. Courts must defer to [the government’s proposed remedy] unless the
newly enacted plan is itself unconstitutional or violates federal law. Id. And
it is the duty of the plaintiff/objectors to challenge the superseding legislation,
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should the new legislation fail to correct “unreasonably distorted” voter
registration rates. Id. The district court, however, placed the burden on the
state without any intimation that SB 5 itself was a product of unconstitutional
discrimination or any statutory violation. Finally, the court never considered
ordering relief less stringent than wholesale invalidation of SB 5.
Because the court misapplied the governing legal standards, its remedial
order represents an abuse of discretion. Moreover, the court declined to make
any finding on whether SB 5 has a discriminatory intent or purpose. To the
contrary, all of the evidence supports that SB 5 was designed to remedy every
defect claimed in the Plaintiffs’ evidence and to supply indigent voter
protections recommended by this court’s remand order.
The deficiencies in the court’s remedial findings came about not only
because of its erroneous presumptions, but because the Plaintiffs never
actually challenged SB 5 in pleadings or evidence during the remedial phase.
It is undisputed that SB 5’s DRI enumerates seven grounds for a voter’s
inability to show compliant ID, and these grounds cover every one of the
difficulties related in the testimony of Plaintiffs’ 27 individual fact witnesses.
Any voter who executes a DRI, checks one of the boxes, and produces some
alternative form of ID may cast a ballot -- not a provisional ballot but a
definitive ballot -- with no questioning permitted by election officials. 7 SB 5
provides for education of the public and election officials concerning the
7 Because there is no evidence about the alleged disparate impact of SB 5’s expanded
availability of a DRI, the dissent must speculate. Its farfetched hypothetical, fn. 15, posits a
voter who “arrives at the polls and is told that the names on her ID and on the rolls are not
‘substantially similar’ and who has not brought with her secondary forms of ID...” Note that,
far from implying a situation that could disproportionately embroil indigent minority voters,
a discrepancy in the voter rolls creates a wholly race-neutral situation. The dissent, like the
district court, may not invent criticisms of SB 5 where no evidence was introduced to sustain
them.
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standards for DRIs, and it allows mobile voter units to issue EICs so that
official alternative photo voter IDs are more readily available.
SB 5 more generously offers a DRI alternative to producing compliant
photo voter ID than the statutes analyzed by the courts in Crawford, 553 U.S.
at 186 (upholding Indiana’s photo-ID law, which required voters who could not
afford IDs to execute indigency affidavits) or Frank v. Walker, 768 F.3d 744
(7th Cir. 2014) (upholding a Wisconsin photo-ID law requiring voters to cast
provisional ballots and whose list of acceptable identification documents was
less inclusive than SB 5’s), or N.C. State Conference of NAACP v. McCrory,
831 F.3d 204, 240-41 (4th Cir. 2016) (enjoining a North Carolina photo-ID law
that required voters to cast a provisional ballot subject to challenge), cert.
denied sub nom. N.C. v. N.C. State Conference of NAACP, 137 S. Ct. 1399
(2017).
In the face of these obvious improvements over SB 14, Plaintiffs neither
allude to nor adduce any proof that SB 5 has a discriminatory effect on indigent
minority voters. To a large extent, SB 5 replicates the terms to which both
parties agreed as an interim measure to cure SB 14’s Section 2 deficiencies in
advance of the national 2016 election. Although the interim remedy was
without prejudice to any party’s asserting its legal rights at a later date, one
must wonder why the features the Plaintiffs agreed to only a year ago yielded
an insufficient remedy when enacted into law. No explanation is forthcoming
in their briefs.
To be fair, Plaintiffs criticize two features of SB 5 that the district court
found insufficient for remedial purposes. SB 5 has no check box on the DRI
form for “other” reasons a voter does not have a compliant ID, although the
parties’ interim DRI had that alternative. Further, the SB 5 DRI must be
signed under penalty of perjury, a warning of which appears on the bottom of
the form. Neither of these features is reasonably assailable, however. The
16
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state explained that in more than a dozen cases during the 2016 election
season, prospective voters checked the “other” box with express statements
that flouted the law’s purpose. The state also pointed out that the seven broad
enumerated grounds to excuse producing a photo ID still cover all of the
objections raised in Plaintiffs’ evidence. Plaintiffs offered nothing concrete to
rebut these explanations. As for executing a DRI under penalty of perjury, the
state noted that this requirement appeared in the interim DRI with Plaintiffs’
counsels’ approbation. In any event, many official government papers signed
by individuals are subject to false statement laws, which are enforceable only
against knowingly false declarations. Plaintiffs’ concern that this warning
would intimidate voters who need to avail themselves of a DRI is wholly
speculative.
That Plaintiffs’ factual critique boils down to speculation demonstrates
the prematurity of the court’s decision to invalidate SB 5 in 2017, well before
the law took effect in 2018. Nothing we conclude today disposes of any
potential challenges to SB 5 in the future. See Operation PUSH, 932 F.2d at
407(“We emphasize that nothing in this opinion prevents PUSH from bringing
a future challenge to Mississippi’s voter registration procedures….”). Plaintiffs
may file a new lawsuit, and bear the burden of proof, if the promise of the law
to remedy disparate impact on indigent minority voters is not fulfilled. They
did not challenge SB 14, for instance, for several years after its effective date.
As a remedy for the deficiencies found by this court in Veasey II, however, there
is no evidentiary or legal basis for rejecting SB 5, and the district court was
bound not to take the drastic step of enjoining it. Further, because SB 5
constitutes an effective remedy for the only deficiencies testified to in SB 14,
and it essentially mirrors an agreed interim order for the same purpose, the
State has acted promptly following this court’s mandate, and there is no
equitable basis for subjecting Texas to ongoing federal election scrutiny under
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Section 3(c). See McCrory, 831 F.3d at 241 (declining to impose relief under
Section 3 of the Voting Rights Act and noting “[s]uch remedies ‘[are] rarely
used’. . . .”).
For the foregoing reasons, we REVERSE and RENDER the district
court’s permanent injunction and order for potential further relief.
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PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring:
I join Judge Jones in reversing the district court’s injunction of SB 5
enforcement, but I travel a somewhat different path, as I will explain.
I.
I find the alternative path of mootness put forth by the state to possess
considerable force. As I am alone in this view, I only pause to describe it briefly.
The lower courts in Operation PUSH and in this case took polar opposite
approaches to the remedial phase. The district court in Operation PUSH halted
its proceedings upon liability, inviting the state to respond. 1 In short, the
district court in that case took a classic restrained posture in order to allow the
legislature a chance to solve the underlying problems. This Court in Operation
PUSH then accepted the district court’s continuing jurisdiction and authority
to consider the reach of the remedial law. 2 The new law had full force, and if
by its terms it ended the state conduct found impermissible, the district court
was obliged to accede—to defer.
In contrast, the district court here excluded the state from participation
in the remedial phase, declining the urging of both the state and this Court.
The district court instead entered judgment and sent it on appeal. Here, we
have a case in which prospective relief is at issue and the controlling law has
changed. The remedy is no more than applying the new law. 3 And when that
new law supplies the sought relief, the case is moot. 4 Of course, even if we had
1 Mississippi State Chapter, Operation PUSH, Inc. v. Mabus, 932 F.2d 400, 404 (5th Cir. 1991).
2 Id. at 409 (describing the enactment of the legislative amendment as “the remedy decision”
growing out of the district court’s holding).
3 Indeed, in earlier pleadings, the private plaintiffs specifically noted that, as an alternative to
the framework SB 14 established, “Texas could have provided a ‘reasonable impediment’ exemption,
as South Carolina has done.” Texas has provided just that. And in doing so, it has also provided all
twenty-seven of the individual voters identified by the plaintiffs with the ability to vote.
4 See, e.g., United States v. Microsoft Corp., No. 17-2, slip op. at 3 (U.S. Apr. 17, 2018) (per
curiam) (“No live dispute remains between the parties over the issue with respect to which certiorari
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found this case to be moot, it bears repeating Judge Jones’s point that nothing
stands in the way of the plaintiffs’ ability to mount a new attack on the
operation of SB 5 itself.
II.
The district court enjoined SB 5 without any suggestion of its
independent invalidity, in part by attempting to recast this case in the all-too-
familiar mold of school desegregation. 5 In doing so, it passed by why those
cases were not closed but remained under the supervision of district judges for
years—district judges dismissing them only upon the achievement of unitary
status, which often took decades. The underlying constitutional right enjoyed
by the student was to attend a racially integrated school—a status to be
achieved by rooting out segregated schools “root and branch.” While this
became a mantra in the Civil Rights movements—one of great rhetorical
force—it has no role in this play, where the validity of discrete state rules are
at issue. Nor, despite its historic role, can it be cast here as an understudy to
fill in for an absent Section 5 of the Voting Rights Act. 6
III.
The district court’s finding that SB 14’s legislative purpose was in part
racial rests on a jurisprudential fault line, one that it passed over. The
was granted.”); Hall v. Beals, 396 U.S. 45, 48–49 (1969) (“[U]nder the statute as currently written, the
appellants could have voted in the 1968 presidential election. The case has therefore lost its character
as a present, live controversy of the kind that must exist if we are to avoid advisory opinions on abstract
propositions of law.”); see also Farrakhan v. Gregoire, 623 F.3d 990, 994 (9th Cir. 2010) (en banc)
(Thomas, J., concurring) (“[T]he legal landscape has materially changed. Plaintiffs sought to enjoin
operation of the prior statute. That prospective relief is no longer available.”); Bradley v. Work, 154
F.3d 704, 710 (7th Cir. 1998) (“We agree that given the extent and timing of the change in statutory
scheme any challenge the Voters might have had to the former system is now moot, and that the
district court appropriately found that the record was too thin to support declaratory relief against the
new system.” (citation omitted)).
5 See, e.g., Green v. Cty. Sch. Bd. of New Kent Cty., Va., 391 U.S. 430 (1968).
6 See Shelby Cty., Ala. v. Holder, 570 U.S. 529, 557 (2013).
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difficulty lies in disentangling partisan advantage and racial purpose when a
party controls the legislature and racial minorities are heavily invested in the
opposite party. 7 Sections 2 and 5 of the Voting Rights Act operating in tandem
faded much of this difficulty. Now, with Section 2 no longer at issue here and
without Section 5 in full force, we turn to the denial of equal protection at its
constitutional source, guided by basic principles set forth by Davis 8 and
Feeney. 9 Together these cases shed light on the difficulty, the first demanding
a racial purpose, 10 and the second guiding the analysis when a facially neutral
law impacts a minority. 11 We are to ask if the legislature acted “in spite of” or
“because of” that impact. 12 While a bit question-begging, this inquiry brings
concrete utility to the determination of purpose demanded by Davis and
Feeney—it can expose purpose in a relevant way. It is fair to ask whether
Texas’s new restraints on voting would have been enacted to begin with if
African Americans were heavy Republican voters (as they were when it was
the party of Lincoln).
I repair to this difficulty not to suggest an answer—rather to suggest
that a confessed purpose to gain partisan advantage may well be fatal under a
traditional equal protection analysis, race aside. Race, as a suspect criterion,
always triggers strict scrutiny. But so do regulatory classifications that
7 See Richard L. Hasen, Race or Party?: How Courts Should Think About Republican Efforts to
Make it Harder to Vote in North Carolina and Elsewhere, 127 HARV. L. REV. F. 58, 61 (2014) (“When
party and race coincide, as they did in 1900 and they do today, it is much harder to separate racial and
partisan intent and effect.”); see also, e.g., Veasey, 830 F.3d at 336 (Costa, J., dissenting in part); Garza
v. Cty. of Los Angeles, 918 F.2d 763, 778 (9th Cir. 1990) (Kozinski, J., concurring) (“[T]he record here
illustrates a more general proposition: Protecting incumbency and safeguarding the voting rights of
minorities are purposes often at war with each other.”).
8 Washington v. Davis, 426 U.S. 229 (1976).
9 Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256 (1979).
10 426 U.S. at 247–48.
11 442 U.S. at 279.
12 Id.
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demean fundamental constitutional rights. Though they are few, these rights
include the right to vote. 13 To be sure, the High Court’s characterization of
voting as a fundamental right is context-dependent, and it has given rise to
various scholarly writings attempting to tender some cohesive force to the
field. 14 At the least, where the state action denies the right to individual voters,
and where that denial concerns state ballots for public office, its validity must
meet the close attention of strict scrutiny. 15
This is not the precise issue now before the High Court, where the
question is how much partisanship is too much in the apportionment context. 16
Where, as here, the state cannot show that its hurried pursuit of a so recently
arrived fear of voter fraud exists beyond the fantasy of political spin, its efforts
can only be described in terms of race or the pursuit of political advantage. 17
Either way, strict scrutiny is triggered—when the answer to the charge of
racial purpose is a claim that the true purpose was partisan advantage, the
state action fails for want of a legitimate purpose. This, because we have not a
dilution but an outright denial of the right to vote.
13 See, e.g., Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 627–28 (1969) (“[W]hen we
are reviewing statutes which deny some residents the right to vote, the general presumption of
constitutionality afforded state statutes and the traditional approval given state classifications if the
Court can conceive of a ‘rational basis’ for the distinctions made are not applicable.” (citations
omitted)).
14 See, e.g., Joshua Douglas, Is the Right to Vote Really Fundamental?, 18 CORNELL J. L. & PUB.
POL’Y 143 (2008).
15 See Dunn v. Blumstein, 405 U.S. 330, 336 (1972) (“[A]s a general matter, ‘before that right
(to vote) can be restricted, the purpose of the restriction and the assertedly overriding interests served
by it must meet close constitutional scrutiny.’” (quoting Evans v. Cornman, 398 U.S. 419, 422 (1970)).
16 See generally Gill v. Whitford, No. 16-1161 (U.S. argued Oct. 3, 2017).
17 See Kramer, 395 U.S. at 627. At oral argument, for instance, Texas noted that there have
been only four prosecutions for in-person voter fraud in Texas over the past decade—four prosecutions
out of “millions and millions” of votes cast. Cf. Patrick Marley, Attorney General Brad Schimel Suggests
Donald Trump Won Wisconsin Because of the State’s Voter ID Law, MILWAUKEE J. SENTINEL (Apr. 13,
2018, 3:02 PM), https://www.jsonline.com/story/news/politics/2018/04/13/attorney-general-brad-
schimel-suggests-donald-trump-won-wisconsin-because-states-voter-id-law/514628002/ (“Attorney
General Brad Schimel this week suggested Donald Trump won Wisconsin in 2016 because the state
had its voter ID law in place.”).
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In any particular case, claims of voter fraud and racial purpose may both
be attenuated. But the right to vote remains fundamental and cannot be easily
frustrated, whether it affects poor African American voters or poor Caucasian
voters. That is the direction we ought to take.
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JAMES E. GRAVES, JR., Circuit Judge, concurring in part and dissenting in
part:
“A hog in a silk waistcoat is still a hog.” 1
S.B. 14 is an unconstitutional disenfranchisement of duly qualified
electors. S.B. 5 is merely its adorned alter ego. The Texas Legislature enacted
S.B. 14 with an intent to suppress minority voting. Because the thread of
discriminatory intent runs through both S.B. 14 and S.B. 5, the district court’s
judgment and remedial order should be affirmed. I concur in Judge Jones’s
conclusion that this appeal is not moot. But from the remainder of the
majority’s opinion, I respectfully dissent.
I
The majority cites no authority that allows it to ignore the district court’s
decision on S.B. 14 in favor of addressing the district court’s decision on S.B. 5
alone. When this case was first tried, the district court found not only that S.B.
14 had a discriminatory effect on Black and Latino voters, but also that it was
enacted with a discriminatory purpose. Veasey v. Perry, 71 F. Supp. 3d 627 (S.D.
Tex. 2014) (Veasey I). This court, sitting en banc, affirmed the district court’s
discriminatory effect finding. Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016) (en
banc) (Veasey II), cert. denied, 580 U.S. —, 137 S. Ct. 612 (2017). However,
because the district court relied on infirm evidence in finding discriminatory
intent, we remanded for the district court to “reexamin[e] . . . the probative
evidence underlying Plaintiffs’ discriminatory purpose claims weighed against
the contrary evidence.” Id. at 242 (citation and internal quotation marks
omitted). On remand, the district court reweighed the evidence—excluding the
evidence we deemed infirm—and held again that S.B. 14 was passed with a
Charles H. Spurgeon, 1 The Salt-Cellars: Being a Collection of Proverbs, together with
1
Homely Notes Thereon 18 (1889).
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discriminatory purpose. See Veasey v. Abbott, 249 F. Supp. 3d 868 (S.D. Tex.
2017) (Veasey III). Review of our decision in Veasey II and the district court’s
ruling in Veasey III reveals that the district court properly followed our
mandate in making its renewed finding. In the absence of clear error, that
finding should be affirmed.
A
I begin with a look back to Veasey II—how we conducted our initial review
of the district court’s discriminatory purpose finding, as well as what we
instructed the district court in light of that review.
“Proof of racially discriminatory intent or purpose is required to show a
violation of the Equal Protection Clause.” Veasey II, 830 F.3d at 230 (quoting
Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977)).
But “‘[r]acial discrimination need only be one purpose, and not even a primary
purpose,’ of an official action for a violation to occur.” Id. (quoting United States
v. Brown, 561 F.3d 420, 433 (5th Cir. 2009)). Against this backdrop, our analysis
of whether S.B. 14 violated the Voting Rights Act and the Fourteenth and
Fifteenth Amendments proceeded via the framework established by the
Supreme Court in Arlington Heights:
[T]he Supreme Court set out five nonexhaustive factors to determine
whether a particular decision was made with a discriminatory
purpose, and courts must perform a “sensitive inquiry into such
circumstantial and direct evidence of intent as may be available.”
See 429 U.S. at 266–68. “Those factors include: (1) the historical
background of the decision, (2) the specific sequence of events
leading up to the decision, (3) departures from the normal procedural
sequence, (4) substantive departures, and (5) legislative history,
especially where there are contemporary statements by members
of the decision-making body.” Overton v. City of Austin, 871 F.2d
529, 540 (5th Cir. 1989) (citing Arlington Heights, 429 U.S. at
267–68). Legislators’ awareness of a disparate impact on a
protected group is not enough: the law must be passed because
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of that disparate impact. Pers. Adm’r of Mass. v. Feeney, 442 U.S.
256, 279 (1979). The challengers bear the burden to show that
racial discrimination was a “‘substantial’ or ‘motivating’ factor
behind enactment of the law”; if they meet that burden, “the
burden shifts to the law’s defenders to demonstrate that the law
would have been enacted without this factor.” Hunter [v.
Underwood, 471 U.S. 222, 228 (1985)] (citation omitted).
Veasey II, 830 F.3d at 230–31 (footnotes omitted).
We made the following findings regarding the infirm evidence upon which
the district court relied:
First, the district court relied too heavily on evidence of Texas’s state-
sponsored discrimination from a bygone era—specifically, its use of all-white
primaries from 1895–1944, literacy tests and secret ballot restrictions from 1905–
1970, and poll taxes from 1902–1966. “The historical background of the decision
is one evidentiary source, particularly if it reveals a series of official actions taken
for invidious purposes,” Arlington Heights, 429 U.S. at 267, but “unless
historical evidence is reasonably contemporaneous with the challenged decision,
it has little probative value,” McCleskey v. Kemp, 481 U.S. 279, 298 n.20
(1987). See Veasey II, 830 F.3d at 232.
Second, the district court gave too much probative weight to the actions
of county officials in Walter County by imputing the motives of those officials
onto the Texas Legislature. Id.
Third, two of the more recent redistricting cases the district court relied
on as historical evidence of discrimination, “taken alone, form[ed] a thin basis
for drawing conclusions regarding contemporary State-sponsored
discrimination.” Id. at 232–33 (discussing Bush v. Vera, 517 U.S. 952 (1996),
and League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006)).
Fourth, the district court improperly relied on statements by opponents of
S.B. 14 speculating as to the proponents’ motives. Id. at 233–34.
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And fifth, the district court improperly relied on stray post-enactment
statements of individual legislators. Id. at 234.
In spite of that infirm evidence, we acknowledged that the record
contained “circumstantial evidence that could support a finding of
discriminatory purpose such that the record does not permit of only one
resolution of the factual issue of intent,” id. at 236, namely:
First, drafters and proponents of S.B. 14 were aware of the likely
disproportionate effect of the law on minorities, but they passed the bill
anyway without adopting a number of proposed ameliorative measures that
might have lessened this impact. The district court cited testimony that this
likely disproportionate impact was “common sense.” Id.
Second, one of S.B. 14’s authors testified that he “believe[s] today the
Voting Rights Act has outlived its useful life.” Id. at 236–37. Other legislators
asked this Senator about the possible disparate impact of the law, to which he
replied, “I am not advised.” Id. at 237.
Third, a proponent testified that he and other proponents voted to table
amendments that would have expanded the types of accepted IDs, expanded the
operating hours of Department of Public Safety stations that issued voter IDs,
and delayed implementation of S.B. 14 until an impact study could be completed.
These proponents, with an attitude that “was out of character for sponsors of
major bills,” largely refused to explain why they rejected these amendments at
the time and in subsequent litigation. Id.
Fourth, evidence and testimony revealed that S.B. 14 was “only tenuously
related to the legislature’s stated purpose of preventing voter fraud.” Id. A race
relations expert, Dr. Vernon Burton, testified that Texas has stated “voter fraud”
as the rationale for its previous discriminatory voting practices—all-white
primaries, secret ballot provisions, poll taxes, re-registration requirements,
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and voter purges—none of which actually responded to sincere incidences of
voter fraud. Id. In this instance there was also “evidence that could support a
finding that the Legislature’s race-neutral reason of [promoting] ballot
integrity . . . is pretextual.” Id. “The bill was subjected to radical departures
from normal procedures,” which “provides one potential link in the
circumstantial totality of evidence the district court must consider” and “may
lend credence to an inference of discriminatory intent.” Id. at 237–38. These
departures included: (1) getting special permission to file the bill under a low
number (i.e., “S.B. 14”) reserved for the Lieutenant Governor’s legislative
priorities, rather than the S.B. 178 number it was assigned upon its filing; (2)
then-Governor Perry’s decision to designate the bill as emergency legislation
so that it could be considered during the first sixty days of the legislative
session, even though no one explained what the “emergency” was; (3)
suspending a rule that would have required a two-thirds vote in the Texas
Senate to make S.B. 14 a “special order”; 2 (4) allowing the bill to bypass the
ordinary committee process in the House and Senate; (5) passing S.B. 14
with an unverified $2 million fiscal note despite the prohibition on doing so in
the 2011 legislative session due to a $27 million budget shortfall; (6) cutting
debate short to enable a three-day passage through the Senate; and (7) passing
resolutions to add provisions to S.B. 14, contrary to the Legislature’s rules and
2 “Under Senate Rule 5.11(a), a two-thirds majority vote is required to make a bill or
resolution a ‘special order.’ When designated as a ‘special order,’ the bill is considered prior to
other business of the Senate. The Senate of the 2009 Texas Legislature had adopted a
significant rules change to Rule 5.11 providing that a bill relating to voter ID requirements
that was reported favorably from the Committee of the Whole Senate could be set as a special
order at least 24 hours after a motion to set it was adopted by a majority of the members of
the Senate. That rule change, made solely for voter ID legislation, followed the 2007 session
when the two-thirds rule blocked predecessor HB 218 from being taken up out of the ordinary
order of business and the rule remained in place for the 2011 Texas Senate.” Veasey I, 71 F.
Supp. 3d at 647–48 (footnotes omitted).
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normal practice. See id. at 238. The district court noted that these departures
were odd, given that S.B. 14 was addressed earlier in priority than, and
without the same special solicitude as, “critically important issues such as
the $27 million budget shortfall and transportation funding.” Id. (quoting
Veasey I, 71 F. Supp. 3d at 657). We noted that “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, . . . such a bill would address
a problem of great magnitude.” Id. While ballot integrity is a “worthy goal,” the
evidence before the Legislature showed that in-person voting, the sole concern
addressed by S.B. 14, resulted in just two convictions for in-person voter
impersonation fraud out of the 20 million votes cast in the decade before S.B.
14 was passed. Id. We also noted that the law did nothing to address mail-in
ballots, which are much more vulnerable to fraud. Id. at 238–39. Thus, we
“c[ould] not say that the district court had to simply accept that legislators
were really so concerned with this almost nonexistent problem.” Id. at 239.
Fifth, the “extraordinary measures” accompanying S.B. 14’s passage
occurred in the wake of a rapid increase in Texas’s minority population—a
“seismic demographic shift”—which led the district court to find that the party
currently in power “face[d] a declining voter base and [could] gain partisan
advantage” through a strict voter ID law. Id. at 241 (quoting Veasey I, 71 F.
Supp. 3d at 700).
Sixth, the proponents of S.B. 14 “cloak[ed] themselves in the mantle of
following Indiana’s voter ID law, which had been upheld against a (different)
challenge” in Crawford v. Marion County Election Board, 553 U.S. 181 (2008),
yet proceeded to take out all the ameliorative provisions of the Indiana law,
including an indigency exception. Veasey II, 830 F.3d at 239.
Seventh, the record contained contemporary examples of State-sponsored
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discrimination. As late as 1975, Texas attempted to suppress minority voting
through voter-roll purges. In every redistricting cycle since 1970, Texas has been
found to have violated the Voting Rights Act with racially gerrymandered
districts. And between 1980 and 2013—when Shelby County v. Holder, 570
U.S. 529 (2013), heralded the end of Section 5—the Department of Justice
objected to at least one of Texas’s statewide redistricting plans in each period.
See Veasey II, 830 F.3d at 239–40.
And eighth, Texas’s rationale undergirding the voter ID law shifted as each
previous rationale was challenged or disproven by its opponents. At first, it was
preventing voter fraud. Then, it was guarding against voting by undocumented
immigrants. Then, it was increasing public confidence and voter turnout. See id.
at 240–41 (citing Foster v. Chatman, 578 U.S. —, —, —, 136 S. Ct. 1737, 1751–
52, 1754–55 (2016) (reasoning that the government’s “principal reasons” for its
action “shift[ing] over time . . . suggest[ed] that those reasons may [have been]
pretextual”)).
* * *
We summed up our view of the evidence and instructed the district court:
[A]lthough 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. . . . We therefore remand this claim to the district court
to re-examin[e] . . . the probative evidence underlying
Plaintiffs’ discriminatory purpose claims weighed against
the contrary evidence, in accord with the appropriate legal
standards we have described.
Id. at 241–42 (emphases added) (citation and internal quotation marks omitted).
We further instructed that the district court “should not take additional
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evidence,” but could hear additional oral argument prior to issuing its new
findings, if it decided to do so. Id. at 242. Finally, we directed that “[t]he district
court on remand should make its discriminatory purpose findings based on the
record we have, guided by this opinion and the instructions we have given the
district court about the legal infirmities in its initial findings,” id., and
“bearing in mind the effect any interim legislative action taken with respect to
SB 14 may have,” id. at 272.
B
Our instructions were clear. We acknowledged that the district court
relied on infirm evidence, but we also acknowledged that evidence apart from
that infirm evidence could support a finding of discriminatory intent. So we
remanded to the district court and told it to take no new evidence—rather, the
district court was simply to reweigh the discriminatory purpose claim without
the infirm evidence and make a ruling thereon.
On remand, the district court undertook anew its analysis of the
discriminatory purpose claim using the Arlington Heights framework. It
paraphrased that framework as requiring consideration of six factors:
(1) The disparate impact of the legislation; (2) Whether there is a
clear pattern, unexplainable on grounds other than race, which
emerges from the effect of the state action even when the governing
legislation appears neutral on its face; (3) The historical background
of the decision; (4) Whether the decision departs from normal
procedural practices; (5) Whether the decision departs from
normal substantive concerns of the legislature, such as whether
the policy justifications line up with the terms of the law or where
that policy-law relationship is tenuous; and (6) Contemporaneous
statements by the decisionmakers and in meeting minutes and
reports.
Veasey III, 249 F. Supp. 3d at 872 (citing Arlington Heights, 429 U.S. at 266).
Keeping in mind our instructions, the district court made several findings.
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As to the disparate impact of the legislation, the district court first noted
that we did not disturb its findings and conclusions relating to discriminatory
result (disparate impact)—in parts IV(B) and VI(B)(1) of Veasey I 3—with one
exception: we found that anecdotal evidence of racial appeals in campaigns did
not show that S.B. 14 denied or abridged the right to vote. Id. at 872–73 & 873
n.5 (citing Veasey II, 830 F.3d at 261). Assigning no weight to that anecdotal
evidence, the court adopted its prior findings and conclusions and found that
Plaintiffs satisfied this factor. Id. at 873 & n.5.
As to the clear pattern, unexplainable on nonracial grounds, the district
court recognized that in parts IV(A)(4) and (5) of Veasey I, 4 it had described the
ameliorative amendments that were suggested to soften the racial impact of S.B.
14 and the Legislature’s rejection of those amendments, and it noted in part
IV(A)(6) 5 that the Legislature offered no substantive justifications for the bill’s
“draconian terms.” Id. at 873. The court also reiterated its conclusion from part
VI(B) that “these efforts revealed a pattern of conduct unexplainable on non-
racial grounds to suppress minority voting.” Id. Because we had deemed that
evidence appropriate, probative, and reliable for consideration, the court was free
to adopt its previous findings and conclusions with respect to this factor. Id.
(citing Veasey II, 830 F.3d at 236).
As to the historical background, the court affirmatively stated that it “did
not, and does not, assign distant history any weight in the discriminatory
purpose analysis,” and that it “does not rely on the evidence of Waller County
officials’ efforts to suppress minority votes and the redistricting cases for the
discriminatory purpose analysis.” Id. at 873–74. However, it did adopt its post-
3 See Veasey I, 71 F. Supp. 3d at 660–79, 694–95.
4 Veasey I, 71 F. Supp. 3d at 651–53.
5 Veasey I, 71 F. Supp. 3d at 653.
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2000 historical evidence (found in part VI(B)(2) of Veasey I6), as well as the 1970s-
and-onward historical evidence we credited in the en banc opinion. Id. at 874
(citing Veasey II, 830 F.3d at 239–40). The court found, consistent with our
opinion, that the reasonably contemporaneous history of discriminatory
practices supported a discriminatory purpose finding. Id.
As to the departures from normal practices, the court explained that in
part IV(A) of Veasey I (specifically, parts IV(A)(1)–(5)), it “detailed the
extraordinary procedural tactics used to rush SB 14 through the legislative
process without the usual committee analysis, debate, and substantive
consideration of amendments.” Id. (citing Veasey I, 71 F. Supp. 3d at 645–
53). Given that we agreed that the district court could “credit these ‘virtually
unprecedented’ radical departures from normal practices,” the court adopted
its previous findings and conclusions with regard to this factor. Id. (quoting
Veasey II, 830 F.3d at 238).
As to the legislative drafting history, the court cited our statement that
“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.” Id. (quoting Veasey II, 830 F.3d at 240). The court then noted that
in parts III(B) and IV(A)(4) of Veasey I, 7 it detailed the “unduly strict” terms of
the bill—the categories of photo IDs accepted by other states that Texas
rejected, the period of time in which IDs could be expired, the limited
exceptions made available, and the heavier burdens imposed for taking
advantage of an exception—and how Texas failed to demonstrate that these
6 Veasey I, 71 F. Supp. 3d at 700.
7 Veasey I, 71 F. Supp. 3d at 642–45, 651–52.
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features were consistent with its purported interest in preventing voter fraud
or increasing public confidence in elections. Id. at 875. The court also
reiterated its previous finding in part IV(A)(6) of Veasey I 8 that Texas’s
rationales for S.B. 14 had shifted over time and were pretextual, and its findings
in parts IV(A)(2) and (3) 9 that S.B. 14 was passed with a fiscal note, despite the
Legislature’s stated prohibition against such bills.10 Given our “approv[al] of the
consideration of the tenuousness of the relationship between the legislature’s
policies and SB 14’s terms,” and our findings that the fiscal note issue was
relevant and that the district court could credit evidence of pretext, the
district court adopted its previous findings and conclusions with respect to this
factor. Id. (citing Veasey II, 830 F.3d at 237–41).
Finally, as to the contemporaneous statements, the district court stated
that it “assign[ed] no weight” to the evidence previously offered in part VI(B)(2)
of Veasey I 11 “regarding legislator observations of the political and legislative
environment at the time SB 14 was passed,” with two exceptions: the statement
by Senator Fraser, one of S.B. 14’s authors, that the Voting Rights Act had
“outlived its useful life,” and the evidence that the Legislature failed to adopt
ameliorative measures without explanation, which was out of character with
other major bills (evidence we had deemed appropriate). Id. (citing Veasey II,
830 F.3d at 236–37). But even as to those exceptions we approved of, the court
8 Veasey I, 71 F. Supp. 3d at 653–59.
9 Veasey I, 71 F. Supp. 3d at 649.
10 Texas claims that the district court erred by “adopt[ing] its reasoning from Part IV(A)”
of Veasey I, which, in part, had relied on an expert report by Dr. Alan Lichtman who had
himself relied on evidence we considered infirm. But the district court was exacting in
detailing which portions of its previous opinion it readopted; it did not simply readopt
wholesale an entire section that it recognized was infected by infirm evidence without
excising that infirm evidence from its consideration.
11 Veasey I, 71 F. Supp. 3d at 702.
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assigned the evidence “little weight.” Id.
Having outlined the evidence it would and would not consider, the court
concluded:
Because the Fifth Circuit found that some of the evidence in this
case was not probative of a discriminatory purpose in the Texas
Legislature’s enactment of SB 14, this Court was tasked with re-
examining its conclusion on the discriminatory purpose issue. Upon
reconsideration and a re-weighing of the evidence in conformity with
the Fifth Circuit’s opinion, the Court holds that the evidence found
“infirm” did not tip the scales. Plaintiffs’ probative evidence—that
which was left intact after the Fifth Circuit’s review—establishes
that a discriminatory purpose was at least one of the substantial or
motivating factors behind passage of SB 14. Consequently, the
burden shifted to the State to demonstrate that the law would have
been enacted without its discriminatory purpose. Hunter, 471 U.S.
at 228. The State has not met its burden. Therefore, this Court holds,
again, that SB 14 was passed with a discriminatory purpose in
violation of Section 2 of the Voting Rights Act.
Id. at 875–76.
C
We should affirm the district court’s finding that S.B. 14 was enacted with
a discriminatory purpose. That finding of fact—which the district court made
following a full trial on the merits—may be reversed only if it is clearly erroneous.
Pullman-Standard v. Swint, 456 U.S. 273, 290 (1982); see also Veasey II, 830
F.3d at 229–30 (“If the district court’s findings are plausible in light of the record
viewed in its entirety, we must accept them . . . .” (quoting Price v. Aus. Indep.
Sch. Dist., 945 F.2d 1307, 1312 (5th Cir. 1991))). A reviewing court “oversteps
the bounds of its duty under [Federal Rule of Civil Procedure] 52(a) if it
undertakes to duplicate the role of the lower court.” Anderson v. City of
Bessemer City, 470 U.S. 564, 573 (1985). “[T]he very premise of clear error
review is that there are often ‘two permissible’—because two ‘plausible’—
‘views of the evidence.’” Cooper v. Harris, 581 U.S. —, —, 137 S. Ct. 1455, 1468
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(2017) (quoting Anderson, 470 U.S. at 574). Thus, the factfinder’s choice
between those two permissible views “cannot be clearly erroneous . . . even
when the district court’s findings . . . are based . . . on physical or documentary
evidence or inferences from other facts.” Anderson, 470 U.S. at 574 (emphasis
added). And “if the district court’s account of the evidence is plausible in light
of the record viewed in its entirety, the court of appeals may not reverse even
though convinced that had it been sitting as the trier of fact, it would have
weighed the evidence differently.” Id. at 573–74; see also GIC Servs., L.L.C. v.
Freightplus USA, Inc., 866 F.3d 649, 663 (5th Cir. 2017) (same); Veasey II, 830
F.3d at 238 n.22 (“We acknowledge that multiple inferences could reasonably
be drawn from the record evidence, but we must leave the drawing of those
inferences to the district court.”).
The district court affirmatively stated that it accorded the infirm evidence
no weight in its decision, and it then adopted the appropriate findings and
conclusions from its previously written, meticulously supported 147-page
opinion to conclude once again that racial discrimination was a substantial
motivating factor behind S.B. 14. And, adopting its previous finding that
Texas had not demonstrated that the law would have been enacted without
this motivating factor, the court held that S.B. 14 was passed with a
discriminatory purpose. Our instruction that the district court “reevaluate”
the discriminatory intent evidence and “determine anew” whether S.B. 14 was
passed with a discriminatory intent did not mean that the district court was
required to scrap the work it had done up to that point, rewrite its opinion on
discriminatory purpose, or retry the case. Nor was the district court required
to accept any additional briefing on the subject, though it did.
Given Veasey III’s finding that S.B. 14 was at least one substantial or
motivating factor behind S.B. 14’s enactment, the burden shifted to Texas to
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demonstrate that the law would have been enacted without its discriminatory
purpose. See Hunter, 471 U.S. at 228. The district court impliedly adopted
its previous finding from Veasey I—a finding disturbed by no infirm evidence—
that Texas
did not provide that the discriminatory features of S.B. 14 were
necessary to accomplish any fraud prevention effort. They did not
provide evidence that the discriminatory features were
necessary to prevent non-citizens from voting. They did not provide
any evidence that would link these discriminatory provisions to
any increased voter confidence or voter turnout. As the proponents
who appeared (only by deposition) testified, they did not know or
could not remember why they rejected so many ameliorative
amendments, some of which had appeared in prior bills or in the
laws of other states. There is an absence of proof that SB 14’s
discriminatory features were necessary components to a voter ID
law.
Veasey I, 71 F. Supp. 3d at 702.
This remains a plausible view of the evidence in light of the record and
is therefore not clearly erroneous. See Washington v. Davis, 426 U.S. 229, 242
(1976) (“Necessarily, an invidious discriminatory purpose may often be inferred
from the totality of the relevant facts . . . .”). The district court was not required
to apply any presumption of “good faith” to the Texas Legislature’s enactment. 12
Arlington Heights, the controlling decision on this issue, does not require such
deference to the Legislature once a finding of intentional discrimination is made.
12 The district court was also not required to wait for Texas to pass S.B. 5 prior to making
a ruling on the discriminatory purpose claim, and Texas overreads our instructions in claiming
as much. We explained that the district court “should not take additional evidence” and should
“make its discriminatory purpose findings based on the record we have.” Veasey II, 830 F.3d at
242. We did instruct the district court to “bear[] in mind the effect any interim legislative action
taken with respect to SB 14 may have,” id. at 272, but at the time the district court ruled on
the discriminatory purpose claim, no new legislation had been enacted. Whether the enactment
of S.B. 5 affected the remedy the district court ordered for the discriminatory purpose violation
is a separate issue from whether S.B. 14 was enacted with a discriminatory purpose.
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See 429 U.S. at 265–66 (“[I]t is because legislators and administrators are prop-
erly concerned with balancing numerous competing considerations that courts
refrain from reviewing the merits of their decisions, absent a showing of
arbitrariness or irrationality. But racial discrimination is not just another
competing consideration. When there is a proof that a discriminatory purpose
has been a motivating factor in the decision, . . . judicial deference is no longer
justified.”); Miller v. Johnson, 515 U.S. 900, 915 (1995) (explaining that the
“good faith of a state legislature must be presumed” only “until a claimant
makes a showing sufficient to support” an allegation of “race-based
decisionmaking,” which in and of itself is “inherently suspect”); accord N.C.
State Conf. of NAACP v. McCrory, 831 F.3d 204, 235 (4th Cir. 2016) (ruling that
legislative deference did not apply because the evidence established that, at
least in part, a discriminatory purpose motivated the North Carolina
legislature in passing voter ID legislation), cert. denied sub nom. North
Carolina v. N.C. State Conf. of NAACP, 581 U.S. —, 137 S. Ct. 1399 (2017).
Neither the district court nor this court need credit Texas’s new theory,
based on new evidence, that S.B. 14 “was intended to be one piece of a considered
response to a decade-long and nationwide push to improve election integrity and
increase public confidence in elections.” Texas raised this argument for the first
time in its proposed new findings of fact on remand. It cited no record evidence
in advancing this argument; instead, it cited to historical legislative documents
that were not in the record and sought to have the district court judicially notice
those documents. The district court was correct to ignore this argument and
evidence, given our instruction that no new evidence be admitted (which
would necessarily include evidence admitted by way of judicial notice). If
anything, that Texas has supplied yet another rationale behind the enactment
of S.B. 14 lends further credence to our observation that the State’s many,
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shifting rationales for a voter identification law were probative of
discriminatory intent. 13 Veasey II, 830 F.3d at 241; cf. Bethune-Hill v. Va. State
Bd. of Elec., 580 U.S. —, —, 137 S. Ct. 788, 799 (2017) (explaining in racial
gerrymandering challenge that the inquiry into the legislative intent behind
the drawing of a district’s lines “concerns the actual consideration that
provided the essential basis for the lines drawn, not post hoc justifications the
legislature in theory could have used but in reality did not”).
At bottom, our decision in Veasey II left the district court with a not-so-
high hurdle to clear before ruling, for a second time, that S.B. 14 was enacted
with a discriminatory purpose. It bears repeating that had we determined that
the only resolution of the factual issues arising from the record evidence was
13 While it is true that the Supreme Court has described safeguarding public confidence
in the integrity of the electoral process as a state interest of “independent significance,” Crawford
v. Marion Cty. Elec. Bd., 553 U.S. 181, 197 (2008) (opinion of Stevens, J.), the question remains
whether Texas genuinely holds this interest, considering that neither S.B. 14 nor S.B. 5 seeks
to ameliorate or reduce voter fraud in the area where, by most accounts, it is more likely
to occur: mail-in ballots. See, e.g., Gromer Jeffers Jr., Dallas County DA Investigating More
than 1,200 Mail-in Ballot Applications for Potential Voter Fraud, Dall. Morning News (Mar.
12, 2018), https://www.dallasnews.com/news/2018-elections/2018/03/12/dallas-county-da-
investigating-1200-mail-ballot-applications-potential-voter-fraud. Given its apparent lack of
interest in guarding against “voter fraud” wherever it may arise, it seems more accurate to
say that Texas, having itself stoked the fires of voter fraud in the mind of its electorate, now
purports to have a genuine interest in increasing public confidence in the firefighters. See Note,
Of Ballot Boxes and Bank Accounts: Rationalizing the Jurisprudence of Political Participation
and Democratic Integrity, 131 Harv. L. Rev. 1443, 1462 (2018) (“Somewhat ironically,
proponents of voter identification laws have begun to offer public perception of in-person
fraud as a rationale for further restrictions, having convinced many voters that such fraud
does indeed exist as part of campaigns to enact earlier restrictions.”); Danielle Lang & J.
Gerald Hebert, A Post-Shelby Strategy: Exposing Discriminatory Intent in Voting Rights
Litigation, 127 Yale L.J. F. 779, 784 (2018) (“Legislators have promoted a myth of widespread
voter fraud, stoking mistrust in our electoral system, to support these restrictions.”
(footnote omitted)); Michael Wines, In Absence of Voter Fraud, Targeting the Fear of It, N.Y.
Times, Mar. 24, 2017, at A11 (“[W]hile [proponents of restrictive voting legislation] have
traditionally argued that such laws are needed to police rampant voter fraud—a claim most
experts call unfounded—some are now saying the perception of fraud, real or otherwise, is an
equally serious problem, if not worse.”).
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that no discriminatory intent was present in enacting S.B. 14—as Texas here
suggests—then, following Pullman-Standard, we would have rendered
judgment in Texas’s favor rather than remanded. See Veasey II, 830 F.3d
at 229 (“[W]hen 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.’” (quoting Pullman-Standard, 456 U.S. at
292)). But we decidedly did not render judgment, because the evidence at least
raised the question whether a finding of a discriminatory purpose was
plausible.
The district court correctly found that S.B. 14 was passed with a
discriminatory purpose, in contravention of both constitutional and statutory
prohibitions on intentional discrimination. And because this finding is not
clearly erroneous, I would affirm the district court’s grant of declaratory relief
and its holding that S.B. 14 violates Section 2 of the Voting Rights Act and
the Fourteenth and Fifteenth Amendments to the U.S. Constitution. 14
II
I turn now to the district court’s permanent injunctions of S.B. 14 and S.B.
5, which we review for abuse of discretion. SEC v. Life Partners Holdings, Inc.,
854 F.3d 765, 784 (5th Cir. 2017). “A trial court abuses its discretion when its
ruling is based on an erroneous view of the law or a clearly erroneous
assessment of the evidence.” United States v. Murra, 879 F.3d 669, 678 (5th
Cir. 2018) (citation omitted).
“An injunction is an exercise of a court’s equitable authority, to be ordered
only after taking into account all of the circumstances that bear on the need for
14See Veasey III, 249 F. Supp. 3d at 576; Veasey v. Abbott, 265 F. Supp. 3d 684, 689 (S.D.
Tex. 2017).
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prospective relief.” Salazar v. Buono, 559 U.S. 700, 714 (2010) (opinion of
Kennedy, J.). And when a court finds that a law has been passed with a
discriminatory purpose, it may exercise that equitable authority to invalidate
that law. See Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982)
(affirming a permanent injunction of a state statute, passed by voter initiative,
that was motivated by a racially discriminatory purpose in violation of the
Fourteenth Amendment); see also Anderson v. Martin, 375 U.S. 399, 404
(1964) (“Race is the factor upon which the statute operates and its involvement
promotes the ultimate discrimination which is sufficient to make it invalid.”).
Indeed, “[a]n official action . . . taken for the purpose of discriminat[ion] . . . on
account of [] race has no legitimacy at all under our Constitution or under the
[Voting Rights Act].” City of Richmond v. United States, 422 U.S. 358, 378
(1975); see also id. at 378-79 (“[Official actions] animated by [a
discriminatory] purpose have no credentials whatsoever; for [a]cts generally
lawful may become unlawful when done to accomplish an unlawful end.” (last
alteration in original) (citation and internal quotation marks omitted)).
A
An examination of S.B. 5 reveals how little of S.B. 14 it actually changed.
See Veasey v. Abbott, 265 F. Supp. 3d 684, 691–97 (S.D. Tex. 2017) (Veasey IV)
(detailing S.B. 5’s provisions). S.B. 5 made a number of small changes. It
clarified that both a U.S. passport book and U.S. passport card would be
considered acceptable forms of identification; S.B. 14 referred only to
“passport[s].” It enlarged the amount of time an acceptable form of
identification may be expired from sixty days to four years and provided that
voters seventy years of age or older do not have a limit on the amount of time
their ID may be expired. Id. at 692. It also provided for free mobile units that
can travel the state and issue Election Identification Certificates (EIC) upon
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request from constituent groups or at special events; it, however, does not
provide how much notice must be, should be, or is to be given before these
mobile units arrive in a particular location so that voters can gather the
necessary documentation needed to obtain an EIC. Id. at 693.
The largest change within S.B. 5 was its creation of the Declaration of
Reasonable Impediment (DRI) procedure, which was derived from (but,
critically, is not identical to) the interim remedy put in place after our decision
in Veasey II in time for the 2016 presidential election. The procedure provides
that a voter can vote a regular ballot by completing a DRI if she does not
have and cannot reasonably obtain one of S.B. 14’s acceptable forms of
identification. Before a voter can be permitted to complete a DRI, she must
present either (1) one of an exhaustive list of documents that shows her name
and address (a government document, a copy of a current utility bill, a bank
statement, a government check, or a paycheck), or (2) a certified copy of a
domestic birth certificate. She then must check which of seven listed reasons
explains her inability to obtain acceptable photo ID: lack of transportation,
lack of birth certificate or other documents needed to obtain the sanctioned
photo ID, work schedule, lost or stolen ID, disability or illness, family
responsibilities, and ID applied for but not received. The interim remedy had
contained another check box—labeled “other”—which allowed a voter to write
in her own explanation for why she had not been able to obtain one of the
sanctioned IDs. But because nineteen people used the “other” box during the
2016 election for no other purpose than to protest S.B. 14, the Legislature
eliminated the box in S.B. 5’s codification of the procedure. Finally, the form
of the DRI contains a notice to voters that they fill out the form under penalty
of perjury, and S.B. 5 mandates that a voter who intentionally includes a false
statement or false information commits a state jail felony.
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S.B. 5 is not a replacement for S.B. 14. S.B. 5 retains much of S.B. 14’s
original structure. See Appendix. S.B. 5 does not eliminate S.B. 14’s photo ID
requirement. It does not expand S.B. 14’s list of acceptable photo IDs (other than
the change from “passport” to “passport book or card” that reads more as a
clarification than an expansion), thereby “perpetuat[ing] the selection of types
of ID most likely to be possessed by Anglo voters and, disproportionately, not
possessed by Hispanics and African Americans.” Veasey IV, 265 F. Supp. 3d at
692. S.B. 5 does not change S.B. 14’s requirement that an election officer must
compare the name on a voter’s ID with the registered name to determine
whether they are “substantially similar,” and, if they are not, refuse to permit
the voter to cast a regular ballot. 15 S.B. 5 does not meaningfully alleviate the
“financial, geographic, and institutional obstacles,” occasioned by S.B. 14,
“to obtaining qualifying photo ID or the underlying documentation necessary
to obtain qualifying photo ID.” Id. And S.B. 5 neither addresses what the
district court found to be S.B. 14’s “discriminatory features . . . regarding
education and training,” id. at 697, nor contains provisions identifying the
programs necessary to educate voters in the second-most populous state in the
nation about the litany of voter ID requirements and contingencies, nor
provides funding to implement any such programs.
B
The district court did not abuse its discretion in enjoining S.B. 5. On this
15 While this aspect of S.B. 14 has theoretically been remedied by the DRI procedure,
the situation is almost certain to arise where a voter arrives at the polls and is told that the name
on her ID is not “substantially similar” to a name on the rolls, but she does not have on her person
one of the secondary forms of ID which allows her to fill out a DRI. She therefore either would
not be permitted to vote via a DRI or would have to file a provisional ballot and follow S.B. 14’s
(seemingly unchanged) provisional ballot procedure, requiring her to go to the voter registrar
with additional documentation to verify her identity within six days of the election.
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issue, the Fourth Circuit’s decision in North Carolina State Conference of NAACP
v. McCrory is instructive. There, the court invalidated North Carolina’s voter ID
law after finding that the law was enacted with a racially discriminatory
purpose. During the litigation, the legislature amended one of the law’s
provisions to add a reasonable impediment exception—much like S.B. 5’s DRI
procedure. The Fourth Circuit refused to consider the amendment and
enjoined the entire law to remedy its underlying discriminatory purpose,
explaining:
[E]ven if the State were able to demonstrate that the amendment
lessens the discriminatory effect of the photo ID requirement, it
would not relieve us of our obligation to grant a complete remedy
in this case. That remedy must reflect our finding that the challenged
provisions were motivated by an impermissible discriminatory intent
and must ensure that those provisions do not impose any lingering
burden on African American voters. . . .
While remedies short of invalidation may be appropriate if a
provision violates the Voting Rights Act only because of its
discriminatory effect, laws passed with discriminatory intent
inflict a broader injury and cannot stand.
N.C. State Conference, 831 F.3d at 240. As support for that proposition, the court
cited our observation in Veasey II that a remedy for a discriminatory intent claim
is broader than the remedy for a discriminatory effect claim. See 830 F.3d at 268
& n.66. The Fourth Circuit reasoned that because the North Carolina voter ID
law was passed with a discriminatory intent, it had to be “eliminated root and
branch.” N.C. State Conference, 831 F.3d at 239 (quoting Green v. Cty. Sch. Bd.,
391 U.S. 430, 438 (1968)). And since the reasonable impediment amendment
neither invalidated nor repealed the photo ID requirement, it “f[ell] short of the
remedy that the Supreme Court has consistently applied in cases of this nature.”
Id. at 240.
The same result should obtain here. S.B. 14 is legislation borne out of a
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discriminatory purpose. Even if S.B. 5 were, as Texas and the majority both claim,
ostensibly to remove or otherwise lessen the discriminatory impacts of S.B. 14,
it still does not change the reason—the discriminatory reason—why the State
enacted a voter ID law in the first place. Should S.B. 5 be allowed to govern, its
congenital defect would persist. Texas argues that the Legislature passed voter
ID legislation to rid the state of voter fraud. But Texas produced no significant
evidence of voter fraud, no empirical data regarding voter fraud, and no pattern
of successful prosecutions for voter fraud (indeed, the evidence revealed only two
prosecutions out of twenty million votes cast in Texas in the decade prior to S.B.
14’s enactment). See also, e.g., Justin Levitt, A Comprehensive Investigation of
Voter Impersonation Finds 31 Credible Incidents Out of One Billion Votes Cast,
Wash. Post, Aug. 6, 2014, http://www.washingtonpost.com/news/wonk/wp/2014/
08/06/a-comprehensive-investigation-of-voter-impersonation-finds-31-credible-
incidents-out-of-one-billion-ballots-cast (detailing thirty-one possible incidents
of in-person voter impersonation throughout the United States between 2000
and 2014).
So if ridding the state of voter fraud is the beginning premise, it is
unsupported. And everything the State does in furtherance of that premise is
undermined by the fact that the premise is not based on any evidence. Enter
S.B. 5. If Texas seeks to protect against in-person voter fraud, how does the
statute’s DRI procedure in any way contribute? As the district court aptly
observed, how does the reason a voter lacks a form of sanctioned photo
identification “make[] any difference in identifying a voter so as to prevent
fraud”? Veasey IV, 265 F. Supp. 3d at 695. Texas belies its own stated mission
when it refuses to implement protections against anything other than nearly
nonexistent, in-person voter impersonation. It completely fails to address mail-
in ballot fraud, for example. In my view, when a proposed solution to a problem
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doesn’t even target where the problem is most likely to arise, a claimed interest
in solving that problem is, at best, illusory. See supra note 13.
C
1
The majority is mistaken in claiming that the Plaintiffs bear the burden
to show that S.B. 5 is not a sufficient remedy. Rather, it is Texas that bears the
burden of proving that S.B. 5 is a sufficient remedy. This issue is foreclosed by
the Supreme Court’s decision in United States v. Virginia. There, the Court found
unconstitutional Virginia’s state policy of excluding women from the Virginia
Military Institute. After it did so, it considered whether Virginia, not the
plaintiffs, had satisfied its burden to show that its proposed remedy was
sufficient. See Virginia, 518 U.S. at 547–48 (“Having violated the Constitution’s
equal protection requirement, Virginia was obliged to show that its remedial
proposal ‘directly address[ed] and relate[d] to’ the violation, i.e., the equal
protection denied to women ready, willing, and able to benefit from educational
opportunities of the kind VMI offers.” (citation omitted) (quoting Milliken v.
Bradley, 433 U.S. 267, 282 (1977))); see also Green, 391 U.S. at 439 (“The
burden on a school board today is to come forward with a plan that promises
realistically to work, and promises realistically to work now.”). 16 Here, it is
Texas’s statute that violates the Constitution; thus, it is Texas that must show
that it has remedied the violation.
2
The majority attempts to bind the Plaintiffs to S.B. 5 because “no evidence
was offered to show that the agreed interim remedy . . . was insufficient—and
16Nothing is so unique about school desegregation litigation that the teachings of those
cases cannot reasonably be applied to discrimination affecting the right to vote, an equally
invidious affront to constitutional rights.
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that remedy served as the model for SB 5.” Ante at 14. But two unique
circumstances fundamental to the interim remedy’s adoption cannot be
neglected. First, the remedy was approved as a stop-gap measure with a
presidential election only three months away. Second, at the time the interim
remedy was implemented, this Court had found only that S.B. 14 had a
discriminatory impact, so the remedy had to be formulated from the options
available to remedy a discriminatory impact violation—not the broader options
available to remedy a discriminatory purpose violation. Once the district court
reaffirmed its discriminatory purpose finding, any justification behind
continuing the interim remedy—or behind fashioning new legislation out of the
interim remedy—fell away.
3
The majority claims that S.B. 5 cures all of S.B. 14’s potential ills because
the DRI’s seven listed impediment options “cover every burden” alleged by the
individual voter Plaintiffs. Ante at 5. But S.B. 5 does not fully remove the burden
disproportionately placed on poor and minority voters; it just creates a new and
different burden. The existence of the DRI may mean that the Plaintiffs—and
others like them—no longer have to obtain one of S.B. 14’s acceptable forms of
photo ID before being permitted to vote. But in place of that burden, they must
enter a separate line, fill out a separate declaration and state, under threat of a
state jail felony for perjury, which of an exhaustive list of reasons explains
exactly why they were unable to obtain one of the acceptable forms of photo
ID. The district court saw the danger in this:
Listing a limited number of reasons for lack of S.B. 14 [identification]
is problematic because persons untrained in the law and who are
subjecting themselves to penalties of perjury may take a restrictive
view of the listed reasons. Because of ignorance, a lack of confidence,
or poor literacy, they may be unable to claim an impediment to which
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they are entitled for fear that their opinion on the matter would not
comport with a trained prosecutor’s legal opinion. Consequently, the
failure to offer an “other” option will have a chilling effect, causing
qualified voters to forfeit the franchise out of fear,
misunderstanding, or both.
Veasey IV, 265 F. Supp. 3d at 695. And this danger is precisely why the Fourth
Circuit rejected the North Carolina legislature’s DRI remedy. The court explained
that even if North Carolina could show that the remedy would lessen the
discriminatory effect of the state’s photo ID requirement, it was obliged to grant
a complete remedy that would remove “any lingering burden on African
American voters.” N.C. State Conference, 831 F.3d at 240 (emphasis added).
Because the record failed to reflect that a reasonable impediment exception
would “fully cure[] harm from the photo ID provision,” the court did not
entertain it. Id. If S.B. 5, in amending the discriminatory S.B. 14, does not
“place persons unconstitutionally denied an opportunity or advantage in ‘the
position they would have occupied in the absence of [discrimination],” and does
not “eliminate [so far as possible] the discriminatory effects of the past’ and . . .
‘bar like discrimination in the future,’” then it should not be permitted to
stand. Virginia, 518 U.S. at 547 (alterations in original) (quoting Milliken, 433
U.S. at 280, and Louisiana v. United States, 380 U.S. 145, 154 (1965)).
4
Next, the majority’s reliance on both Cotton v. Fordice, 157 F.3d 388 (5th
Cir. 1998), and Chen v. City of Houston, 206 F.3d 502 (5th Cir. 2000), for the
proposition that the seemingly “race-neutral” alterations of S.B. 5 removed S.B.
14’s discriminatory intent, is misplaced. In Cotton, we addressed a provision of
the Mississippi Constitution, enacted in 1890, which was written intentionally
to disenfranchise any person convicted of what were commonly considered to be
“black” crimes: bribery, burglary, theft, arson, false pretenses, perjury, forgery,
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embezzlement or bigamy. Miss. Const., art. XII, § 241 (1890); see also Ratliff v.
Beale, 20 So. 865, 868 (Miss. 1896). Section 241 was amended in 1950 to remove
burglary from the list of crimes and again in 1968 to add murder and rape (which
were not considered to be “black” crimes). Both amendments involved, first, a
deliberative process that required two-thirds votes of both houses of the state
legislature and, second, assent of the majority of Mississippi voters to “the entire
provision, including the revision.” Cotton, 157 F.3d at 391–92. In light of that
process, we explained that section 241 in its then-present form could be
considered unconstitutional only if the amendments were themselves
adopted with discriminatory purpose. But the plaintiff provided no evidence
that the legislators and voters who “re-enacted” section 241 sixty and seventy-
eight years, respectively, after it was first enacted were motivated by any such
purpose. As a result, we held that the provision was not unconstitutional. Id.
In Chen, the City of Houston was required by ordinance to redraw its city
council districts every two years. The 1991 redistricting plan was denied pre-
clearance, and though the City never implemented the plan it drafted in response,
which created additional concentrations of minorities, that draft plan formed
the template for the 1993, 1995, and 1997 redistricting plans. The plaintiffs sued
on the 1997 plan, arguing that race predominated over the City’s drawing of
districts. We acknowledged that while under Hunter v. Underwood “the
discriminatory intent of the original drafter may carry forward despite
subsequent judicial invalidation of the most obviously discriminatory
provisions, intervening reenactment with meaningful alterations may
render the current law valid.” Chen, 206 F.3d at 521 (citing Hunter, 471 U.S.
at 232–33). In rejecting the plaintiffs’ claim, we relied on Cotton, which we
stated “broadly stands for the important point that when a plan is
reenacted—as opposed to merely remaining on the books like the provision in
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Hunter—the state of mind of the reenacting body must also be considered.” Id.
These cases seem to be the grounds upon which the majority found it
unnecessary to address the district court’s discriminatory intent finding. That
is, the majority must have reasoned that any taint of S.B. 14 was cleansed
simply because a new legislature passed new legislation. Not so.
Each of the three cases—Cotton, Chen, and the instant case—has a thread
of discriminatory intent running through it. The passage of time and the actions
of intervening parties cut that thread of intent in Cotton: two legislatures, acting
eighteen years apart (with the first acting sixty years after the offending
constitutional provision was enacted) approved the amendments by two-thirds
majorities, and then the entire sections—not just the amendments—were
subject to statewide votes in favor of full reenactment. The two-year
redistricting ordinance cut the thread in Chen: whatever the City’s intent vis-
à-vis race predominance in 1991, the City was required to reenact the plan and
redraw the districts with “meaningful alterations” in 1993, 1995, and 1997. 206
F.3d at 521.
Nothing cuts the thread of intent here. No passage of time cuts the thread:
a mere six years passed between the enactment of S.B. 14 and the enactment of
S.B. 5. No intervening parties cut the thread: the voters had no say, and many
of the original legislators who passed S.B. 14 were still in office to pass S.B. 5.
And no statutory reenactment requirement cut the thread: the State of Texas
was not required to periodically enact voter ID legislation. In fact, what
happened in the interim was that two federal courts ruled that S.B. 14 had a
discriminatory impact on poor and minority voters, and the district court twice
ruled that S.B. 14 was passed with a discriminatory purpose.
We need not consider the “state of mind of the reenacting body,” as we did
in Chen, because there is no reenacting body here. There was no reenactment.
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Contrary to Cotton’s twice-reenacted constitutional provision and Chen’s thrice-
reenacted redistricting plan, the 2017 Texas Legislature did not reenact S.B.
14, and S.B. 5 did not replace S.B. 14. The new legislation just added new
provisions to the discriminatory framework of the former legislation—
modifications which, as previously discussed, continue to burden the franchise
of poor and minority voters. The old legislation “remain[s] on the books” and is
still the law in Texas.
5
Finally, I disagree with the majority’s determination that our decision in
Mississippi State Chapter, Operation PUSH, Inc. v. Mabus, 932 F.2d 400 (5th
Cir. 1991), should control here. On first blush, it might appear so, given that both
that case and this involve legislative remediation of a statute found to violate
the Voting Rights Act. In Operation PUSH, we explained that a district court “is
precluded from substituting even what it considers to be an objectively
superior plan for an otherwise constitutionally and legally valid plan that has
been proposed and enacted by the appropriate state governmental unit,” and it
“must accept a plan offered by the local government if it does not violate
statutory provisions or the Constitution.” Id. at 406–07 (quoting Seastrunk v.
Burns, 772 F.2d 143, 151 (5th Cir. 1985)); accord Wise v. Lipscomb, 437 U.S.
535, 540 (1978) (stating that a legislative remedy is “the governing law unless
it, too, is challenged and found to violate the Constitution” (emphasis
added)); Westwego Citizens for Better Gov’t v. City of Westwego, 946 F.2d 1109,
1123 (5th Cir. 1991) (“[J]udicial relief becomes appropriate only when a
legislature fails to reapportion according to federal constitutional requisites in
a timely fashion after having had an adequate opportunity to do so.” (quoting
White, 412 U.S. at 794–95)). But it cannot be understated that Operation
PUSH dealt only with legislation that was found to have had a discriminatory
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impact under Section 2. Had the district court’s sole finding here been that
S.B. 14 had a discriminatory impact, then it would be required to wait, per
Operation PUSH, for the legislative remedy to be given time to operate before
it could determine that it too had a discriminatory impact. But there was no
finding of discriminatory intent in Operation PUSH as there is here. In light
of that finding, the district court need not have given S.B. 5 any time at all
before acting.
III
The district court did not take its duty here lightly. It scrutinized the
provisions of S.B. 5 against the record to see whether that legislation could work
as a proper remedy. See Veasey IV, 265 F. Supp. 3d at 691–97. That scrutiny
correctly resulted in a finding that Texas failed to meet its burden on that issue.
As in North Carolina State Conference, the record here “establishe[d] that the
reasonable impediment exception amendment does not so fundamentally alter
the photo ID requirement as to eradicate its impact or otherwise ‘eliminate the
taint from a law that was originally enacted with discriminatory intent.’” 831
F.3d at 240 (quoting Johnson v. Gov’r of Fla., 405 F.3d 1214, 1223 (11th Cir.
2005) (en banc)). The only appropriate relief, then, was the relief the district
court chose to impose—the invalidation of both S.B. 14 and S.B. 5. 17
The scant changes implemented through S.B. 5 do not alter the district
court’s finding that S.B. 14 was enacted with a discriminatory purpose. Instead,
S.B. 5 merely carries forward the discriminatory strain of its predecessor, and
for that reason it should be quarantined. I would therefore find that the district
17 To borrow from the Fourth Circuit’s succinct conclusion, “If in the future the [Texas
Legislature] finds that legitimate justifications counsel modification of its election laws, then
the [Texas Legislature] can certainly so act. Of course, legitimate justifications do not include
a desire to suppress [minority] voting strength.” N.C. State Conference, 831 F.3d at 240.
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court did not abuse its discretion in enjoining both S.B. 14 and S.B. 5. Because
the majority does not do so, I respectfully dissent.
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APPENDIX
S.B. 14 S.B. 5
(1) Provided the following list of (1) Changed in three respects:
“acceptable form[s] of photo • Amended “United States
identification” (all of which must passport” to “United States
be current or, if expired, must not passport book or card”
have expired earlier than sixty • Acceptable forms of
days before presentation at the identification, if expired, must
polls): not have expired earlier than
• Department of Public Safety– four years before presentation
issued driver’s license, or at the polls
personal identification card • Persons age 70 or older may use
• U.S. military identification card acceptable form of identification
with photograph that has been expired for any
• U.S. citizenship certificate with length of time, as long as
photograph identification is otherwise valid 2
• U.S. passport
• Department of Public Safety–
issued license to carry a
concealed handgun 1
(2) Eliminated the following as (2) Unchanged
acceptable forms of identification:
• Long-expired DPS–issued
driver’s license or personal
identification card
• Driver’s license or personal
identification card issued from
agency of another state
(whether or not expired)
• Any other form of identification
containing the person’s
photograph that establishes the
person’s identity
1 S.B. 14 § 14.
2 S.B. 5 § 5.
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• A birth certificate or other
document confirming birth that
is admissible in the court of law
and that establishes the person’s
identity
• Other U.S. citizenship papers
• Long-expired U.S. passport
• Official mail addressed to the
person by name from a
governmental agency
• Copy of a current utility bill,
bank statement, government
check, paycheck, or other
government document that
shows the voter’s name and
address of the voter
• Any other form of identification
prescribed by the secretary of
state 3
(3) Established Election Identification (3) Unchanged
Certificate procedure 4
(4) Established requirement that voter (4) Unchanged, except as provided by
must present valid photo ID to an Declaration of Reasonable
election officer at polling place in Impediment procedure
order to vote 5
(5) Established that a disabled voter (5) Superseded by Declaration of
seeking to be exempted from photo Reasonable Impediment procedure
ID requirement must provide:
• Written documentation from the
U.S. Social Security
Administration evidencing the
voter has been determined to
3 S.B. 14 § 14.
4 Id. § 20.
5 Id. § 9.
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have a disability; or
• Written documentation from the
U.S. Department of Veterans
Affairs evidencing the voter has
a disability rating of at least 50
percent; and
• A statement in a form prescribed
by the secretary of state that
the voter does not have an
“acceptable” form of
identification 6
(6) Established requirement that (6) Unchanged
election officer determine whether
voter’s registered name and name
on photo ID are “substantially
similar” to each other 7
(7) Provided that if registered name (7) Superseded in part by Declaration
and name on the photo ID are not of Reasonable Impediment
deemed by election officer to be procedure (for voters who have
“substantially similar,” or if the approved documentation that
voter does not have the necessary allows them to complete a DRI)
photo ID, the voter may cast a
provisional ballot that will be
counted only if the voter, within six
days of the election, goes to the
voter registrar with additional
documentation to verify his or her
identity 8
(8) Directed secretary of state to (8) Unchanged
“conduct a statewide effort to
educate voters regarding the
identification requirements” 9
6 Id. § 1.
7 Id. § 9.
8 Id.
9 Id. § 5.
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(9) Directed county voter registrar to (9) Unchanged
provide notice of the photo ID law
when issuing registration
certificates and post requirements
in county clerk’s office and online 10
(10) Established Declaration of
Reasonable Impediment
procedure:
• If a voter does not have one of
the “acceptable forms of
identification,” an election
officer shall notify the voter
that the voter may be accepted
for voting if the voter has:
o A government document
showing voter’s name and
address (including voter’s
voter registration certificate)
o A copy of a current utility
bill that shows the name and
address of the voter
o A bank statement that
shows the name and address
of the voter
o A government check that
shows the name and address
of the voter
o A paycheck that shows the
name and address of the voter
o A certified copy of a domestic
birth certificate or other
document confirming birth
that is admissible in a court
of law and establishes the
10 Id. §§ 3 & 5.
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person’s identity
• The voter must execute a
declaration attesting that he or
she has a reasonable
impediment to meeting the
requirement to have one of the
acceptable forms of
identification
• The declaration must include a
notice to the voter that he or
she is subject to prosecution for
perjury if he or she
intentionally makes a false
statement or provides false
information on the declaration
• The voter must indicate one or
more of a defined set of
impediments:
o Lack of transportation
o Lack of birth certificate or
other documents needed to
obtain one of the acceptable
forms of identification
o Work schedule
o Lost or stolen information
o Disability or illness
o Family responsibilities
o Identification applied for but
not received 11
(11) Established criminal penalty (state
jail felony) for voter who
intentionally makes false
statement or provides false
information on Declaration of
11 S.B. 5 §§ 2 & 5(b).
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Reasonable Impediment 12
(12) Provided that secretary of state
shall establish a program to
provide mobile units to provide
Election Identification
Certificates 13
12 Id. § 3.
13 Id. § 1.
59