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«Case: 14-41127 Document: 00513142615 Page: 1 Date Filed: 08/05/2015 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court ...»

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Case: 14-41127 Document: 00513142615 Page: 1 Date Filed: 08/05/2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

August 5, 2015

No. 14-41127

Lyle W. Cayce

Clerk

MARC VEASEY; JANE HAMILTON; SERGIO DELEON; FLOYD CARRIER;

ANNA BURNS; MICHAEL MONTEZ; PENNY POPE; OSCAR ORTIZ; KOBY

OZIAS; LEAGUE OF UNITED LATIN AMERICAN CITIZENS; JOHN

MELLOR-CRUMMEY, KEN GANDY; GORDON BENJAMIN, EVELYN

BRICKNER, Plaintiffs – Appellees

TEXAS ASSOCIATION OF HISPANIC COUNTY JUDGES AND COUNTY

COMMISSIONERS, Intervenor Plaintiffs – Appellees v.

GREG ABBOTT, in his Official Capacity as Governor of Texas; CARLOS CASCOS, Texas Secretary of State; STATE OF TEXAS; STEVE MCCRAW, in his Official Capacity as Director of the Texas Department of Public Safety, Defendants – Appellants ************************************************************************

UNITED STATES OF AMERICA,

Plaintiff – Appellee

TEXAS LEAGUE OF YOUNG VOTERS EDUCATION FUND; IMANI

CLARK, Intervenor Plaintiffs – Appellees v.

Case: 14-41127 Document: 00513142615 Page: 2 Date Filed: 08/05/2015 STATE OF TEXAS; CARLOS CASCOS, Texas Secretary of State; STEVE MCCRAW, in his Official Capacity as Director of the Texas Department of Public Safety, Defendants – Appellants ************************************************************************

TEXAS STATE CONFERENCE OF NAACP BRANCHES; MEXICAN

AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF

REPRESENTATIVES, Plaintiffs – Appellees v.

CARLOS CASCOS, Texas Secretary of State; STEVE MCCRAW, in his Official Capacity as Director of the Texas Department of Public Safety, Defendants – Appellants ************************************************************************

LENARD TAYLOR; EULALIO MENDEZ, JR.; LIONEL ESTRADA; ESTELA

GARCIA ESPINOSA; MARGARITO MARTINEZ LARA; MAXIMINA

MARTINEZ LARA; LA UNION DEL PUEBLO ENTERO, INCORPORATED,

Plaintiffs – Appellees v.

STATE OF TEXAS; CARLOS CASCOS, Texas Secretary of State; STEVE MCCRAW, in his Official Capacity as Director of the Texas Department of Public Safety, Defendants – Appellants Case: 14-41127 Document: 00513142615

–  –  –

Before STEWART, Chief Judge, HAYNES, Circuit Judge, and BROWN, District Judge.*

HAYNES, Circuit Judge:

In 2011, Texas (“the State”) passed Senate Bill 14 (“SB 14”), which requires individuals to present one of several forms of photo identification in order to vote. See Act of May 16, 2011, 82d Leg., R.S., ch. 123, 2011 Tex. Gen.

Laws 619. Plaintiffs filed suit challenging the constitutionality and legality of the law.

The district court held that SB 14 was enacted with a racially discriminatory purpose, has a racially discriminatory effect, is a poll tax, and unconstitutionally burdens the right to vote. See Veasey v. Perry, 71 F. Supp.

3d 627, 633 (S.D. Tex. 2014).

We VACATE and REMAND the Plaintiffs’ discriminatory purpose claim for further consideration in light of the discussion below. If on remand the district court finds that SB 14 was passed with a discriminatory purpose, then the law must be invalidated. However, because the finding on remand may be different, we also address other arguments raised by the Plaintiffs. We AFFIRM the district court’s finding that SB 14 has a discriminatory effect in violation of Section 2 of the Voting Rights Act and remand for consideration of the proper remedy. We VACATE the district court’s holding that SB 14 is a poll tax and RENDER judgment in the State’s favor. Because the same relief is available to Plaintiffs under the discriminatory effect finding affirmed District Judge for the Eastern District of Louisiana, sitting by designation.

* Case: 14-41127 Document: 00513142615 Page: 4 Date Filed: 08/05/2015

–  –  –

herein, under the doctrine of constitutional avoidance, we do not address the merits of whether SB 14 unconstitutionally burdens the right to vote under the First and Fourteenth Amendments. We therefore VACATE this portion of the district court’s opinion and DISMISS Plaintiffs’ First and Fourteenth Amendment claims.

I. Factual Background and Procedural History A. Senate Bill 14 Prior to the implementation of SB 14, a Texas voter could cast a ballot in person by presenting a registration certificate—a document mailed to voters upon registration. TEX. ELEC. CODE §§ 13.142, 63.001(b) (West 2010). Voters appearing without the certificate could cast a ballot by signing an affidavit and presenting one of multiple forms of identification (“ID”), including a current or expired driver’s license, a photo ID (including employee or student IDs), a utility bill, a bank statement, a paycheck, a government document showing the voter’s name and address, or mail addressed to the voter from a government agency. Id. §§ 63.001, 63.0101 (West 2010).





With the implementation of SB 14, Texas began requiring voters to present certain specific forms of identification at the polls. These include: (1) a Texas driver’s license or personal identification card issued by the Department of Public Safety (“DPS”) that has not been expired for more than 60 days; (2) a U.S. military identification card with a photograph that has not been expired for more than 60 days; (3) a U.S. citizenship certificate with a photo; (4) a U.S.

passport that has not been expired for more than 60 days; (5) a license to carry a concealed handgun issued by DPS that has not been expired for more than 60 days; or (6) an Election Identification Certificate (“EIC”) issued by DPS that

–  –  –

has not been expired for more than 60 days. TEX. ELEC. CODE § 63.0101 (West Supp. 2014). 1 SB 14 states that DPS “may not collect a fee for an [EIC] or a duplicate [EIC],” TEX. TRANSP. CODE § 521A.001(b) (West 2013), and allows DPS to promulgate rules for obtaining an EIC. Id. § 521A.001(f); § 521.142. To receive an EIC, DPS rules require a registered voter to present either: (A) one form of primary ID, (B) two forms of secondary ID, or (C) one form of secondary ID and two pieces of supporting information. 37 TEX. ADMIN. CODE §15.182(1). Thus, any application for an EIC requires either one Texas driver’s license or personal identification card that has been expired for less than two years, or one of the following documents, accompanied by two forms of supporting identification: (1) an original or certified copy of a birth certificate from the appropriate state agency; (2) an original or certified copy of a United States Department of State Certification of Birth for a U.S. citizen born abroad;

(3) U.S. citizenship or naturalization papers without a photo; or (4) an original or certified copy of a court order containing the person’s name and date of birth and indicating an official change of name and/or gender. Id. § 15.182(3). 2 SB 14 also requires the name on the photo ID to be “substantially similar” to the voter’s registered name. TEX. ELEC. CODE § 63.001(c) (West Supp. 2014). If the names are not identical but are substantially similar, the voter must sign an affidavit that the voter and the registered voter are one and the same. Id. If the names are not substantially similar, the voter may submit a provisional ballot and within six days must go to the county registrar with additional ID to verify his or her identity. Id. §§ 63.001(g), 63.011, 65.0541(a) (West Supp. 2014).

Among the forms of supporting identification are: voter registration cards, school records, insurance policies that are at least two years old, identification cards or driver’s licenses issued by another state that have not been expired for more than two years, Texas vehicle or boat titles or registrations, military records, Social Security cards, W-2 forms, expired driver’s licenses, government agency ID cards, unexpired military dependent identification cards, Texas or federal parole or mandatory release forms, federal inmate ID

–  –  –

Before May 27, 2015, a statutory provision distinct from SB 14 imposed a $2 or $3 fee for a certified copy of a birth certificate. 3 TEX. HEALTH & SAFETY CODE § 191.0045 (West 2010). As discussed below, after the district court issued its judgment, the Texas Legislature passed Senate Bill 983 during the 2015 legislative session and eliminated this fee.

Persons who have a disability are exempt from SB 14’s photo ID requirement once they provide the voter registrar with documentation of their disability from the U.S. Social Security Administration or Department of Veterans Affairs. TEX. ELEC. CODE § 13.002(i) (West Supp. 2014). Other persons may vote by provisional ballot without a photo ID if they file affidavits either asserting a religious objection to being photographed or that their SB 14 ID was lost or destroyed as a result of a natural disaster occurring within 45 days of casting a ballot. Id. § 65.054. Additionally, voters who will be 65 or older as of the date of the election may vote early by mail. Id. § 82.003.

If a voter is unable to provide SB 14 ID at the poll, the voter can cast a provisional ballot after executing an affidavit stating that the voter is registered and eligible to vote. Id. § 63.001(a), (g). The vote counts if the voter produces SB 14 ID to the county registrar within six days of the election. Id.

§ 65.0541.

SB 14 requires county registrars to inform applicants of the new voter ID requirements when issuing voter registration certificates, id. § 15.005, and cards, Medicare or Medicaid cards, immunization records, tribal membership cards, and Veteran’s Administration cards. TEX. ADMIN. CODE § 15.182(4).

The Department of State Health Services (“DSHS”) waived most of the fees for obtaining a birth certificate to get an EIC, but this provision separately required the Bureau of Vital Statistics, local registrars, and county clerks to collect a $2 fee for the issuance of a certified copy of a birth certificate, and permitted local registrars and county clerks to impose an addition $1 fee. TEX. HEALTH & SAFETY CODE § 191.0045(d), (e), (h) (West 2010).

–  –  –

requires both the Secretary of State and voter registrar of each county with a website to post SB 14’s requirements online. § 31.012(a). The Id.

requirements must also be placed prominently at polling places. Id. § 62.016.

Additionally, the Secretary of State must “conduct a statewide effort to educate voters regarding the identification requirements for voting.” Id. § 31.012(b).

The district court found that SB 14 allocated a one-time expenditure of $2 million for voter education. 4 Veasey, 71 F. Supp. 3d at 649.

B. Procedural History The State began enforcing SB 14 on June 25, 2013. 5 The plaintiffs and intervenors (collectively, “Plaintiffs”) filed suit against Defendants to enjoin enforcement of SB 14, and their suits were consolidated before one federal district court in the Southern District of Texas. See Veasey, 71 F. Supp. 3d at

632. Plaintiffs claim that SB 14’s photo identification requirements violate the Fourteenth and Fifteenth Amendments to the United States Constitution and Section 2 of the Voting Rights Act because SB 14 was enacted with a racially discriminatory purpose and has a racially discriminatory effect. Plaintiffs also claim that SB 14’s photo ID requirement places a substantial burden on the fundamental right to vote under the First and Fourteenth Amendments, and constitutes a poll tax under the Fourteenth and Twenty-Fourth Amendments.

The State defends SB 14 as a constitutional requirement imposed to prevent The district court also found that one-quarter of the $2 million was earmarked for research into what type of voter education was needed. Veasey, 71 F. Supp. 3d at 649.

A three-judge district court declined to grant judicial preclearance to override the United States Attorney General’s denial of preclearance. See Texas v. Holder, 888 F. Supp.

2d 113, 144–45 (D.D.C. 2012), vacated and remanded, 133 S. Ct. 2886 (2013). The Supreme Court vacated and remanded this decision when it issued Shelby County v. Holder, 133 S. Ct.

2612 (2013), which held that the preclearance requirement in Section 5 of the Voting Rights Act was unconstitutional. Thereafter, Texas began enforcing SB 14.

–  –  –

in-person voter fraud and increase voter confidence and turnout.

The district court conducted a nine-day bench trial at which dozens of expert and lay witnesses testified by deposition or in person. Following that bench trial, the district court issued a lengthy and comprehensive opinion

holding:

SB 14 creates an unconstitutional burden on the right to vote [under the First and Fourteenth Amendments], has an impermissible discriminatory effect against Hispanics and African-Americans [under Section 2 of the Voting Rights Act], and was imposed with an unconstitutional discriminatory purpose [in violation of the Fourteenth and Fifteenth Amendments and Section 2]. [Furthermore,] SB 14 constitutes an unconstitutional poll tax [under the Fourteenth and Twenty-Fourth Amendments].



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