Boynton v. Virginia Brief and Appendix for Respondent in Opposition to the Petition for Writ of Certiorari

    No. 16-393

I n the

Supreme (Hourt of tfyz States

GREG ABBOTT, IN HIS OFFICIAL CAPACITY AS 
GOVERNOR OF TEXAS, et al,

v.

Petitioners,

MARC VEASEY, e ta l,

Respondents.

On Writ of Certiorari to the United States 
Court of Appeals for the F ifth Circuit

BRIEF IN OPPOSITION

Wendy Weiser 
Myrna P erez 
J ennifer L. Clark 
The Brennan Center for 

J ustice at NYU School 
of Law

161 Avenue of the Americas, 
12th Floor-

New York, New York 10013

E zra D. R osenberg 
Counsel of Reco rd 

J on M. Greenbaum 
Brendan B. Downes 
L awyers’ Committee for 

Civil R ights Under Law 
1401 New York Avenue, N.W.,

Suite 400
Washington, DC 20005 
(202) 662-8600
erosenbergi@lawyerscommittee.org

Counsel for the Texas State Conference of NAACP 
Branches and the Mexican American Legislative 

Caucus of the Texas House of Representatives
(For Additional Counsel See Inside Covers)

0
C O U N S E L  PRESS 

(800) 274-3321 • (800) 359-6859

269352

mailto:erosenbergi@lawyerscommittee.org


Amy L. Rudd 
L indsey B. Cohan 
Dechert LLP 
500 West Sixth Street,

Suite 2010 
Austin, Texas 78701

Neil Steiner 
Dechert LLP
1095 Avenue of the Americas 
New York, New York 10036

Sidney S. R osdeitcher 
Paul, Weiss, R ifkind, 

Wharton & Garrison LLP 
1285 Avenue of the Americas 
New York, New York 10019

R obert Notzon 
The Law Office of 

R obert Notzon 
1502 West Avenue 
Austin, Texas 78701

Daniel Gavin Covich Gary Bledsoe
Covich Law F irm LLC The Bledsoe Law F irm
Frost Bank Plaza 316 W. 12th Street, Suite 307
802 North Carancahua Street, Austin, Texas 78701 

Suite 2100
Corpus Christi, Texas 78401 Victor Goode

NAACP
J ose Garza 4805 Mt. Hope Drive
Law Office Of J ose Garza Baltimore, Maryland 21215 
7414 Robin Rest Drive 
San Antonio, Texas 98209

Counsel for the Texas State Conference of NAACP 
Branches and the Mexican American Legislative 

Caucus of the Texas House of Representatives

R obert W. Doggett 
Shoshana J. Krieger 
Texas R ioGrande L egal A id 
4920 North IH-35 
Austin, Texas 78751

Marinda van Dalen 
Texas R ioGrande Legal A id 
531 East St. Francis Street 
Brownsville, Texas 78529

J ose Garza
T exas R iogrande L egal A id 
1111 North Main Ave.
San Antonio, Texas 78212

Counsel for Lenard Taylor, Eulalio Mendez Jr., Lionel 
Estrada, Estela Garcia Espinoza, M aximina Martinez 

Lara and La Union Del Pueblo Entero, Inc.



Sherrilyn Ifill 
J anai Nelson 
Christina A. Swarns 
Coty Montag 
Leah C. Aden 
Deuel R oss
NAACP Legal Defense and 

E ducational F und, I nc.
40 Rector Street, 5th Floor 
New York, New York 10006

J onathan Paikin 
Kelly P. Dunbar 
Tania Faransso 
Thaddeus C. E agles 
Matthew R obinson 
W ilmer Cutler P ickering 

Hale and Dorr LLP 
1875 Pennsylvania Avenue, N.W. 
Washington, DC 20006

Counsel for Imani Clark

R olando L. R ios 
115 East Travis Street,

Suite 1645
San Antonio, Texas 78205

Counsel for the Texas 
Associatio?i of Hispanic 
County Judges and County 
Commissioners



i

STATEMENT PURSUANT TO SUPREME 
COURT RULE 29.6

Pursuant to Rule 29.6, none of the Plaintiffs filing 
the Brief in Opposition has a parent corporation or issues 
stock. The Texas State Conference of NAACP Branches 
is an affiliate of the national NAACP.



I I

TABLE OF CONTENTS

Page

STATEMENT PURSUANT TO SUPREM E 
COURT RULE 29.6....................... ......................... i

TABLE OF CONTENTS................................................ii

TABLE OF CITED AUTHORITIES........................   .v

SUMMARY OF ARGUMENT....................................... 1

I. THE FIFT H  CIRCUIT CORRECTLY 
APPLIED THE SECTION 2 RESULTS 
TEST..................................................................... 5

A. The Fifth Circuit Properly Affirmed the
District Court’s Finding of Causation 
Based on a Totality of Circumstances 
A nalysis....................... ............................... 6

1. The Senate Factors apply in vote
denial or abridgement cases...................6

2. The Senate Factors are relevant to
causation.......................   7

B. The Fifth Circuit Properly Affirmed
the D istric t C ou rt’s F ind ings of 
Fact Regarding Causation Because 
Those Findings Were Not Clearly 
Erroneous..................................................... 9



m

Table of Contents

Page
II. THE FIF T H  CIRCUIT’S DECISION 

DOES NOT CREATE A C IR C U IT  
SPLIT ON THE ISSUE OF WHETHER 
SECTION 2 REQUIRES PROOF OF 
D E C R E A SE D  VOTER TURNO UT 
OR REGISTRATION.........................................14

A. The Fifth Circuit Correctly Found
That Section 2 Does Not Require 
Proof Of Decreased Voter Turnout or 
Registration................................................ 15

B. T h ere  Is No S p lit Am ong th e
F ou rth , F ifth , Sixth, and N inth 
Circuits............................................  17

1. The c irc u its  a g re e  th a t  a
s ta tis tic a l d isp a rity  alone is 
insufficient to establish a Section 2 
violation..................................................18

2. The circuits agree th a t proof 
of reduced  vo ter tu rn o u t or 
registrations is not a requirement
of a Section 2 violation...........................19

3. Seventh Circuit law regarding 
discrim inatory resu lts claims 
under Section 2 is ambiguous
and evolving...........................................21



Table of Contents

Page
III. REFUSAL TO GRANT CERTIORARI

WILL NOT LEAD TO PETITIONERS’ 
PARADE OF HORRIBLES............................. 22

IV. T H E  F I F T H  C I R C U I T ’ S
IN T E R PR E T A T IO N  OF SECTION 
2 F I T S  S Q U A R E L Y  W I T H I N  
CONGRESS’S POWER UNDER THE 
FIFTEENTH AMENDMENT........................24

V. THE F IF T H  C IR C U IT ’S REMAND 
OF THE DISCRIMINATORY INTENT 
CLAIM DOES NOT MERIT REVIEW
BY THIS COURT...............................................27

VI. T H E  R E M A N D  FOR DE C I S I O N
ON R E M A I N I N G  I S S U E S  
MILITATES AGAINST REVIEW  AT 
THIS TIM E..............................................   32

CONCLUSION 35



V

TABLE OF CITED AUTHORITIES

Page
CASES

Anderson v. City of Bessemer City,
470U.S.564 (1985)..........................................   9

Brown v. Post,
279 F. Supp. 60 (W.D. La. 1968)...............................15

Burton v. City of Belle Glade,
178 F.3d 1175 (11th Cir. 1999).....................................7

Bush v. Vera,
517 U.S. 952 (1996)...................................  24

Chisom v. Roemer,
501 U.S. 380 (1991).....................................................16

City ofBoerne v. Flores,
52i U.S. 507 (1997).............................................. 25, 26

City of Mobile v. Bolden,
446 U.S. 55 (1980)...................   16

City of Rome v. United States,
446 U.S. 156 (1980)............................................  24, 26

Frank v. Walker,
768 F.3d 744 (7th Cir. 2014).................................21, 22

Frank v. Walker,
819 F.3d 384 (7th Cir. 2016) .22



VI

Cited Authorities

Page
Frank v. Walker,

No. ll-c-1128, 2016 WL 3948068
(E.D. Wis. July 19, 2016)..........................................22

Gaston County v. United States,
395 U.S. 285 (1969)................................................... .7

Gillespie v. U.S. Steel Corp.,
379 U.S. 148 (1964)..................................................... 33

Gingles v. Edministen,
590 F. Supp. 345 (E.D.N.C. 1984)................... passim

Gomez v. City of Watsonville,
863 F.2d 1407 (9th Cir. 1988)............................. . .12

Gonzalez v. Arizona,
677 F.3d 383 (9th Cir. 2012)..................... 7,18, 20, 21

Graver Tank & Mfg. Co. v. Linde A ir Prods. Co.,
336 U.S. 271 (1949).......................................................9

Holland v. United States,
348 U.S. 121 (1954).................................................30

Johnson v. DeGrandy,
512 U.S. 997 (1994)............................................. 23,25

Jones v. City of Lubbock,
727 F.2d 364 (5th Cir. 1984).....................................25



vii

Cited Authorities

Page
Jordan v. Winter,

604 F. Supp. 807 (N.D. Miss. 1984), sum. a ff’d 
sub. nom., Mississippi Republican Exec.
Comm. v. Brooks, 469 U.S. 1002 (1984).................. 24

Kimel v. Florida Bd. Of Regents,
528 U.S. 62 (2000)..'................................................. 25

Lane v. Wilson,
307 U.S. 268 (1939).................................................... 16

League of Women Voters ofN.C. v.
North Carolina,
769 F.3d 224 (4th Cir. 2014)......................... 6, 7,17-18

Lodge v. Buxton,
639 F.2d 1358 (5th. Cir. 1981), affirmed, sub nom., 
Rogers v. Lodge, 458 U.S. 613.......................... . .31

Lopez v. Monterey County,
525 U.S. 266 (1999)................... ........................ 24,26

LULAC v. Perry,
548 U.S. 399 (2006)..................... .......... ............ 7,23

Major v. Treen,
574 F. Supp. 325 (E.D. La. 1983).............................25

McIntosh County NAACP v. City of Darien,
605 F.2d 753 (5th Cir. 1979)...................... 12



Vlll

Cited Authorities

Page
Mich. State A. Phillip Randolph Inst. v.

Johnson,
833 F.3d 656 (6th Cir. 2016)................... .. .7,18,20

Michael v. United States,
454 U.S. 950 (1981)............................................... ..32

Mount Soledad Mem’l Ass’n v. Trunk,
132 S. Ct. 2535 (2012)......................................... 32, 33

North Carolina State Conference ofNAACP v.
McCrory
831 F.3d 204 (4th Cir. 2016).......................................19

Ohio Democratic Party v. Husted,
834 F.3d 620 (6th Cir. 2016).................................18, 20

Ohio State Conference ofNAACP v. Husted,
768 F.3d 524 (6th Cir. 2014), vacated on other
grounds, No. 14-3877, 2014 WL 10384647
(6th Cir. Oct. 1,2014)................................................ 18

One Wisconsin Inst., Inc. v. Thomsen,
No. 15-CV-324,2016 WL 4059222
(W.D. Wis. July 29,2016)........................................ 22

Ortiz v. City of Philadelphia,
28 F.3d 306 (3d Cir. 1994) ........................................7

Pullman-Standard v. Swint,
456 U.S. 273 (1982).....................................4, 27, 28, 31



IX

Cited Authorities

Page

Roberts v. Wamser,
679 F. Supp. 1513 (E.D. Mo. 1987), rev’d on
other grounds, 883 F.2d 617 (8th Cir. 1989)..............7

Rogers v. Lodge,
458 U.S. 613 (1982).........   8,30

Shelby County v. Holder,
133 S. Ct. 2612 (2013)................................................ 1

Smith v. Town of Clarkton,
682 F.2d 1055 (4th Cir. 1982).....................................31

South Carolina v. Katzenbach,
383 U.S. 301 (1966).................................................24

Thornburg v. Gingles,
478 U.S. 30 (1986)........................................................ 2

United States v. Blaine County,
363 F.3d 897 (9th Cir. 2004).............................  24, 26

United States v. Brown,
561 F.3d 420 (5th Cir. 2009).....................................30

United States v. Marengo County Comm’n,
731 F.2d 1546 (11th Cir. 1984)....................... 12, 24-25

United States v. Post,
297 F. Supp. 46 (W.D. La. 1969) 15



X

Cited Authorities

Page
Village of Arlington Heights v.

Metropolitan Housing Development Corp.,
429 U.S. 252 (1977)............................................ passim

STATUTES AND OTHER AUTHORITIES

F o u r t e e n t h  A m e n d m e n t  to t h e  U.S.
Constitution...............................................16, 24, 25, 32

F i f t e e n t h  A m e n d m e n t  t o  t h e  U. S .
Constitution....................... ......................... 15,16,24

28 U.S.C. §1291................. .................. .........................33

52 U.S.C. § 10301(a).......................................................15

52 U.S.C. § 10301(b)............................................... 6,16,21

Fed. R. Civ. P. 5 2 ....................... ................................... 20

Fed. R. Civ. P. 52(a) ......................... ............ .......... 9

Fed. R. Civ. P. 52(a)(6).......................................................9

Fed. R. Civ. P  52(b)............... .......... ..............................2

Jim Malewitz, A m id early voting rush, Texas 
sees vo ter ID hiccups, T exas T ri bune  
(Oct. 25, 2016) 33



XI

Cited Authorities

Page

S. Rep. 97-417 (1982)............................................. 7,15,26

Senate Bill 14 (2011)..............................................passim

Sup. Ct. R. 10........................................................ ... .9,28

Texas S ecre ta ry  of S ta te , Im p o rta n t 2017
Election D ates .......................................................... 33

Voting Rights Act, § 2 ................................   passi?n

Voting Rights Act, § 5 ................................................ 1, 31



1

SUMMARY OF ARGUMENT

The Fifth Circuit, sitting en banc, held that Texas’s 
photo voter identification law, Senate Bill 14 (2011) 
(“SB14”), violates the “results” test of Section 2 of the 
Voting Rights Act (“Section 2”). That conclusion, initially 
reached by the district court, was affirmed by both the 
three-judge Fifth Circuit panel that considered the appeal 
and a super-majority of the en banc court. Additionally, 
prior to Shelby County v. Holder, 133 S. Ct. 2612 (2013), 
a three-judge federal panel in the District of Columbia 
denied preclearance to SB 14 under Section 5 of the Voting 
Rights Act, finding that its implementation would likely 
have a retrogressive impact on Black and Latino voters’ 
ability to participate in the political process. Thus, a 
total of twelve federal judges have reached the same 
conclusion that SB14—the most stringent photo ID law 
in the nation—violates the rights of Black and Latino 
Texan voters.

Significantly, the Fifth Circuit en banc court also 
held that, while there was some evidence on which the 
district court should not have relied in finding that 
SB14 was enacted with discrim inatory intent, there 
was substantial other evidence that could support such 
a finding. Recognizing that the record allows for more 
than one possible outcome, the en banc court remanded 
to the district court to determine whether the remaining 
evidence supports a finding of intentional discrimination. 
The Fifth Circuit also remanded for the fashioning of 
appropriate relief on the results violation. Expedited 
proceedings are currently under way in the district court 
consistent with the remand.



2

Petitioners now seek to circumvent the ongoing 
proceedings before the district court. None of the reasons 
Petitioners offer to try  to justify this Court’s intervention 
in this case are persuasive. The Court therefore should 
decline to issue the extraordinary writ.

In addressing the Section 2 results claim, the Fifth 
Circuit correctly applied the legal standard mandated by 
this Court’s decision in Thornburg v. Gingles, 478 U.S. 
30 (1986): the totality of circumstances as viewed through 
application of the Senate Factors. Appropriately applying 
the “clear e rro r” standard of Federal Rule of Civil 
Procedure 52(b), the Fifth Circuit affirmed the findings 
of the district court based on the overwhelming evidence 
that SB14 placed a disproportionate burden on Black 
and Latino Texans exercising the right to vote—not only 
because these voters were less likely than Anglo voters 
to possess SB14 ID, but also because it was more difficult 
for these voters than for Anglo voters to obtain SB14 
ID. The Fifth Circuit also affirmed the district court’s 
findings, based on equally substantial evidence, that 
these disproportionate burdens interact with social and 
historical conditions specific to Texas to cause inequality 
in the electoral opportunities enjoyed by Black and Latino 
voters, so as to violate Section 2.

In reaching that conclusion, the Fifth Circuit correctly 
held that a Section 2 results violation does not require 
proof of decreased voter turnout or registration. No 
court has held to the contrary. Further, as the Fifth 
Circuit explained, such a standard would be unworkable 
because voter turnout and registration statistics are not 
necessarily accurate reflections of the burden placed 
on minority voters by vote suppression measures and



3

would effectively vitiate pre-enforcement actions to stop 
discriminatory conduct before it takes effect.

Nevertheless, Petitioners attempt to concoct a circuit 
split on the issue, claiming that the Sixth, Seventh, 
and Ninth Circuits require proof of diminished voter 
turnout or registration as an element of such a claim, 
while the Fourth  and F ifth  Circuits do not. W hat 
Petitioners mischaracterize as a circuit split is, in fact, the 
unremarkable result of different circuit courts applying 
the same standard to different evidence and reaching 
different conclusions.

Indeed, contrary to Petitioners’ argument, the Fourth, 
Fifth, Sixth, and Ninth Circuits each applied the same 
legal standard mandated by this Court’s decision in 
Gingles, but simply reached different factual conclusions 
based on their weighing of the specific evidence as 
presented by the parties before them. This is not a basis 
for a grant of a writ of certiorari.

To the extent that, as Petitioners argue, some 
language in the Seventh Circuit’s opinion in Frank v. 
Walker suggests a split with the Fifth Circuit’s en banc 
holding, that language does not create the type of clear 
conflict of law meriting review by this Court. Moreover, 
the proceedings in the Seventh Circuit remain ongoing, 
and that circuit should be given the opportunity to clarify 
its law—consistent with the approach of every other 
circuit to have addressed the issue—before this Court 
finds a “split” justifying further review.

Petitioners’ argum ent that upholding the F ifth  
Circuit’s opinion would violate the Constitution and lead



4

to a parade of horribles, under which widely accepted 
election procedures would be deemed discriminatory, is 
based on the same faulty premise that Plaintiffs must 
show diminished turnout to prevail on a Section 2 results 
claim. Instead, the “totality of circumstances” test, as 
properly applied by the Fifth Circuit here, guards against 
the consequences imagined by Petitioners.

Finally, Petitioners’ argument that the Fifth Circuit 
erred in remanding Plaintiffs’ intentional discrimination 
claim reflects nothing more than a difference between 
Petitioners’ opinion of what the law should be and the 
court’s legally supported application of the settled 
Pullman-Standard  doctrine. As detailed by the Fifth 
Circuit, there is overwhelming evidence to support 
more than  one possible resolution of the issue of 
intentional discrimination. Therefore, remand was not 
only appropriate, but mandatory.

The interlocutory posture of this case argues strongly 
against granting the petition. The district court has set 
an expedited schedule for resolution of the remaining 
issues, after which this Court may consider the entire 
case, with the full benefit of the lower courts’ findings and 
a final judgment fashioning the appropriate relief, rather 
than engage in the type of disfavored piecemeal review 
proposed by Petitioners.1

1. P la in tiffs  acknowledge th a t the law disfavoring 
interlocutory appeals may be subject to different considerations 
when the exercise of a fundamental right is at stake. However, 
here, where the state has been allowed continued enforcement of a 
law that has been held to discriminate against minorities in each of 
four tribunals to have considered the law under the Voting Rights 
Act, there is no countervailing harm to favor interlocutory appeal.



5

I. THE FIFTH CIRCUIT CORRECTLY APPLIED
THE SECTION 2 RESULTS TEST

After determining that SB14 disparately burdens 
Black and Latino voters, the Fifth Circuit properly applied 
the totality of circumstances analysis, using the Senate 
Factors adopted in Gingles and following more than 30 
years of guidance from this Court, to conclude that SB14 
abridges Texas minorities’ right to vote on account of race 
or color, thereby violating Section 2.

The Fifth Circuit adopted a two-part framework to 
implement this Court’s guidance in Gingles. Under this 
framework,

[1] [T]he challenged standard, practice, or 
procedure m ust impose a d iscrim inatory 
burden on members of a protected class, 
meaning that members of the protected class 
have less opportunity than other members of 
the electorate to participate in the political 
process and to elect representatives of their 
choice, [and]

[2] [T]hat burden must in part be caused by 
or linked to social and historical conditions 
that have or currently produce discrimination 
against members of the protected class.

App. 48a-49a.

As described in Gingles, Congress specifically 
amended the Voting Rights Act to make clear that a Section 
2 violation can “be proved by showing discriminatory



6

effect alone.” Gingles, 478 U.S. at 35; see also 52 U.S.C. 
§ 10301(b). Under Gingles, to prove that a law produces 
discriminatory effects in violation of Section 2, plaintiffs 
must show not only that the practice has a disparate 
impact on minority voters, but also that “under the totality 
of the circumstances, the [practice] results[s] in unequal 
access to the electoral process,” because it “interacts with 
social and historical conditions to cause an inequality in 
the opportunities enjoyed by black and white voters to 
elect their preferred representatives.” Gingles, 478 U.S. 
at 46-47. This is precisely what the two-part framework 
does. F irst, it requires analysis of the conduct that 
deprives minority voters of equal opportunity, and second, 
it requires analysis of the totality of circumstances that 
provide a causal link to “social and historical conditions 
that have or currently produce discrimination against 
members of the protected class.” League of Women Voters 
ofN.C. v. North Carolina, 769 F.3d 224,240 (4th Cir. 2014) 
(internal quotations omitted).

A. The F ifth  Circuit Properly Affirmed the 
District Court’s Finding of Causation Based 
on a Totality of Circumstances Analysis

Petitioners claim that the Fifth Circuit erred by 
using the Senate Factors to assess causation. Pet. 22-26. 
Each of their arguments lacks support in the statute or 
in precedent.

1. The Senate Factors apply in vote denial or 
abridgement cases.

In assessing the totality of circumstances, courts 
consider the non-exclusive Senate Factors, derived largely



from this Court’s case law and adopted in the Senate 
Report accompanying the amended Section 2. Gingles, 
478 U.S. at 43-45,79; Sen. Rep. No. 97-417, at 28-29 (1982). 
Contrary to Petitioners’ argument (Pet. 23), nothing in 
the text of Section 2 or its subsequent application by this 
Court limits the “totality of circumstances” analysis or 
the accompanying Senate Factors to vote dilution claims. 
See, e.g., LULAC v. Perry, 548 U.S. 399, 426 (2006) 
(“[T]he Senate Report on the 1982 amendments to the 
Voting Rights Act [] identifies factors typically relevant to
a § 2 claim__ ”). In crafting Section 2, the Senate offered
no alternate test for vote denial or abridgement cases.2 
As a result, in addition to the Fifth Circuit, numerous 
other courts have considered the Senate Factors when 
adjudging vote denial and abridgement claims. See, e.g., 
Mich. State A. Phillip Randolph Inst. v. Johnson, 833 
F.3d 656, 667 (6th Cir. 2016); League of Women Voters of 
N.C., 769 F.3d at 240, 245-47; Gonzalez v. Arizona, 677 
F.3d 383,405-07 (9th Cir. 2012) (en banc); Burton v. City 
of Belle Glade, 178 F.3d 1175,1198 (11th Cir. 1999); Ortiz 
v. City of Philadelphia, 28 F.3d 306,309-12 (3d Cir. 1994); 
Roberts v. Wamser, 679 F. Supp. 1513,1529-32 (E.D. Mo. 
1987), rev’d on other grounds, 883 F.2d 617 (8th Cir. 1989).

2. The Senate Factors are relevant to 
causation.

Petitioners further argue that the Senate Factors 
are not relevant to proof of causation. Pet. 24. This is

2. Notably, one of this Court’s earliest cases under the Voting 
Rights Act used an examination of the totality of circumstances 
similar to the Senate Factors analysis to determine whether a 
literacy test had a discriminatory effect. See Gaston County v. 
United States, 395 U.S. 285, 293 (1969).



8

contrary to this Court’s precedent, which recognizes that 
“[t]he essence of a § 2 claim is that a certain electoral law, 
practice, or structure interacts with social and historical 
conditions to cause an inequality in the opportunities 
enjoyed by black and white voters to elect their preferred 
representatives.” Gingles, 478 U.S. at 47 (emphasis added). 
In other words, causation is determined by whether the 
law, under the totality of circumstances (guided by the 
Senate Factors), abridges minorities’ right to vote. As this 
Court has counseled, the determination required under 
Section 2 ‘“is peculiarly dependent upon the facts of each 
case,’ and requires ‘an intensely local appraisal of the 
design and impact’ of the contested electoral mechanisms.” 
Id. at 79 (quoting Rogers v. Lodge, 458 U.S. 613, 621-22 
(1982)).

The Fifth Circuit’s application of the Senate Factors, 
as directed by Congress and by this Court, ensured that 
its decision was not based on mere statistical disparate 
impact, but also on the interaction between SB 14 and the 
historical and social conditions in Texas that exist due 
to past and continuing racial discrimination. See App. 
93a-95a. The Fifth Circuit affirmed the district court’s 
findings of a past history of voting discrimination by the 
state; discrimination in employment and education that 
make ID possession less likely and more difficult to obtain; 
racially polarized voting, where different racial groups 
have different candidate preferences and, thereby, those 
who possess ID may have an opportunity to participate 
equally in the political process and elect candidates of 
choice; a lack of responsiveness and representation in the 
legislature that led the majority of legislators to ignore 
concerns of minority citizens; and the lack of any well- 
founded, well-explained, and non-pretextual rationales



9

supporting the passage of the strictest photo ID law in 
the country. See App. 76a-95a.

B. The F ifth  Circuit Properly Affirmed the 
District Court’s Findings of Fact Regarding 
Causation Because Those Findings Were Not 
Clearly Erroneous

Petitioners argue that the application of the Senate 
Factors does “not show a discriminatory effect on minority 
voting participation here.” Pet. 24. Petitioners ignore 
that the Fifth Circuit’s review was governed by Federal 
Rule of Civil Procedure 52(a), which prohibits the setting 
aside of findings of fact “unless clearly erroneous,” giving 
“due regard to the trial court’s opportunity to judge the 
witnesses’ credibility.” F ed. R. Civ. P. 52(a)(6). This rule is 
strictly applied in this Court, Anderson v. City of Bessemer 
City, 470 U.S. 564, 573 (1985), further suggesting that a 
grant of certiorari review is inappropriate. Certiorari 
is “rarely granted when the asserted error consists of 
erroneous factual findings.” U.S. Sup. Ct. R. 10; see Graver 
Tank & Mfg. Co. v. Linde A ir Prods. Co., 336 U.S. 271, 
275 (1949) (“A court of law, such as this Court is, rather 
than a court for correction of errors in fact finding, 
cannot undertake to review concurrent findings of fact 
by two courts below in the absence of a very obvious and 
exceptional showing of error.”)

These standards apply with particular force in this 
complex and fact-intensive Section 2 case. As discussed 
above, Section 2 cases are heavily dependent on a fact- 
driven analysis of the totality of circumstances. See 
Gingles, 478 U.S. at 79. The district court’s findings of 
fact were based on a weighing of the credibility of the live



10

testimony of 16 expert witnesses and 30 fact witnesses 
presented by Plaintiffs and the rejection of the testimony 
of the single expert presented live by Petitioners as 
“unconvincing” and entitled to “little weight.” App. 381a.

There is substantial, indeed overwhelming, evidence 
in the record to support the Fifth Circuit’s affirmance 
of the d istric t court’s finding tha t SB14 offers less 
opportunity for 600,000 registered and one million eligible 
minority voters in Texas to participate equally in the 
political process on the basis of race or ethnicity. Contrary 
to Petitioners’ argument, the Fifth Circuit’s affirmance 
of the district court’s findings regarding the burden on 
minority voters imposed by Texas’s photo ID law was not 
based merely on ID possession rates. The district court 
first concluded, based on the evidence of multiple expert 
witnesses, that 4.5% of registered Texans lack SB14 
ID, and that Latino registered voters were 195% more 
likely, and Black registered voters 305% more likely, 
than Anglo voters to lack the ID required to vote. App. 
61a-63a. The district court also credited evidence that 
many Texas voters without qualifying photo ID face heavy 
burdens in obtaining such ID, and that those burdens fall 
disproportionately on Black and Latino Texans. The Fifth 
Circuit enumerated burdens ranging from “the cost of 
underlying documents necessary to obtain [photo ID to 
vote],” “difficulties with delayed, nonexistent, out-of-state, 
or amended birth certificates,” “long distances and other 
travel issues,” a strict disability exemption,” and much 
more. App. 70a-71a.

The Fifth Circuit also expressly held that “the record 
evidence disproves the State’s claim that ‘the plaintiffs 
have failed to identify a single individual who faces a



11

substantial obstacle to voting because of SB14.”’ App. 
72a. Multiple witnesses at trial testified that they lacked 
ID, leading them to either cast no ballot at all or to cast a 
provisional ballot that would not count. Id. These included 
Floyd Carrier, who “was completely prevented from 
voting” because of the “almost impossible bureaucratic 
morass” that he encountered in attempting to obtain the 
underlying documents needed to obtain photo ID; Sammie 
Bates, who lost her right to vote because “she could not 
afford to purchase her Mississippi birth certificate;” 
Gordon Benjamin, who was unable to get the so-called 
“free” ID offered by Texas because “he was unable to 
get his Louisiana birth certificate for the hefty $81 fee 
online;” and others. App. 72a-73a.

Having affirmed the district court’s finding that SB 14 
has a disproportionate impact on Black and Latino voters 
in Texas, the Fifth Circuit then considered the district 
court’s conclusion that the law interacts with social and 
historical conditions in Texas to cause inequality in the 
electoral opportunities enjoyed by these voters. After 
reviewing the district court’s analysis of the relevant 
Senate Factors, the Fifth Circuit determined that the 
“conditions engendered by current and former state- 
sponsored discrimination are sufficiently linked to the 
racial disparity in ID possession under SB14” to merit 
a finding that Section 2 had been violated. App. 77a 
(emphasis added).

The F ifth  Circuit firs t reviewed the history of 
official discrimination in Texas (Senate Factor 1) and 
found a multitude of examples—dating up through this 
decade—of discrimination at the polls on the basis of 
race. App. 77a-79a. The court noted that the district court



12

had found “contemporary examples of state-sponsored 
discrimination,” including two racially discriminatory 
redistricting plans passed by the very same legislature 
that passed SB14. App. 77a-78a.3

The Fifth Circuit also noted the disparity in health, 
education, and employment outcomes amongst Texans 
on the basis of race, all traceable to state-sponsored 
discrimination, and affecting Texans’ ability to participate 
in the political process (Senate Factor 5). App. 80a-87a. 
This diminished political participation is evidenced by the 
lower turnout and registration rates of minority voters in 
Texas as compared to Anglo voters, which the trial court 
acknowledged. App. 82a, 86a-87a.

3. Discrimination need not be state-sponsored to be relevant to 
the impact analysis. See United States v. Marengo County Comm’n, 
731 F.2d 1546, 1567 n.36 (11th Cir. 1984) (finding that “history of 
private discrimination” in county was relevant in analyzing Section 
2 claim because “such discrimination can contribute to the inability 
of blacks to assert their political influence and to participate 
equally in public life”) (internal citations omitted); Gom,ez v. City 
of Watsonville, 863 F.2d 1407,1418 (9th Cir. 1988) (Senate Factor 
Five’s “language describes the people discriminated against, not 
the discriminator”); McIntosh County NAACP v. City of Darien, 
605 F.2d 753,759 (5th Cir. 1979) (“Although our cases have not been 
precise about which governmental body must have practiced the 
pervasive discrimination, the distinction between state and local 
governments hinted at by the district court is without merit.”); 
Gingles v. Edministen, 590 F. Supp. 345, 361-62 (E.D.N.C. 1984), 
aff’d sub. nom. Gingles, 478 U.S. 30 (finding that private and local 
discrimination were relevant in a Section 2 challenge to state laws). 
But even if Section 2 could somehow be read to require a showing 
that the discrimination was state-sponsored, the district court and 
Fifth Circuit found that the historical and ongoing discrimination 
in Texas was perpetrated by state actors.



13

The Fifth Circuit also examined racially polarized 
voting in Texas (Senate Factor 2), the low representation 
rates of minority individuals in Texas among elected 
officials (Senate Factor 7), and the related  lack of 
legislative responsiveness to minority communities’ 
needs (Senate Factor 8), and tied all of them to the well- 
documented rejection by SB14’s supporters of ameliorative 
amendments to the law that would have decreased the 
discriminatory impact on Black and Latino Texans. App. 
79a-80a, 87a-89a.

Finally, the Fifth Circuit considered the tenuousness 
of the justifications for SB14 (Senate Factor 9), noting 
that “the provisions of SB14 fail to correspond in any 
meaningful way to the legitimate interests the State 
claims to have been advancing through SB14.” App. 
90a-91a. The court recounted the state’s history of passing 
laws purportedly aimed at voter fraud as a pretext for 
imposing obstacles that discriminate against voters on 
the basis of race. App. 31a-32a. In this case, as the Fifth 
Circuit concluded, there was “little proven incidence” of 
fraud at the polls to justify replacing Texas’s effective 
preexisting voter ID regime with the strictest photo ID 
requirements in the country. App. 91a. Indeed, the circuit 
court recognized that “in the decade leading up to SB14’s 
passage,” there were “only two convictions for in-person 
voter impersonation fraud out of 20 million votes cast.” 
App. 35a. Meanwhile, the law failed to cover absentee 
balloting, where some fraud does occur. See App. 91a. 
Additionally, supposed concerns about noncitizen voting 
were “misplaced” because “undocumented immigrants 
are unlikely to vote as they try  to avoid contact with 
government agents for fear of being deported.” Id. 
Nor would SB14 stop noncitizen voting (even if it were



14

occurring) because it permits forms of ID that noncitizen 
persons can legally obtain, App. 91a-92a.

II. THE FIFTH CIRCUIT’S DECISION DOES 
NOT CREATE A CIRCUIT SPLIT ON THE 
ISSUE OF WHETHER SECTION 2 REQUIRES 
PROOF OF DECREASED VOTER TURNOUT OR 
REGISTRATION

Petitioners argue that the Fifth Circuit has created 
an “exceptionally important circuit split” regarding the 
appropriate test for a discriminatory results claim under 
Section 2. Pet. 12. Specifically, Petitioners claim that the 
Sixth, Seventh, and Ninth Circuits—unlike the Fourth 
and Fifth Circuits—require a showing that the voter ID 
law disproportionately impacts minority voter turnout or 
registration rates. Petitioners mistake different courts’ 
factual conclusions based on their weighing of different 
evidence as presented by the parties for a dispute about 
the appropriate legal standard for determining liability 
under Section 2. Contrary to Petitioners’ argument, no 
circuit court has held that voter turnout or registration 
is a sine qua non of a vote denial or abridgement case. 
The relative weight that any one of these courts gave to 
voter turnout or registration was dictated by the way the 
parties before it chose to present its case and by the courts’ 
weighing of that evidence, not because of any difference 
between the circuits on the applicable legal standard. To 
the extent that language in the Seventh Circuit’s case law 
suggests otherwise, that case is still under review in the 
Seventh Circuit, and this Court should await the Seventh 
Circuit’s resolution of the case before deciding whether 
there is a conflict among the circuits justifying a grant of 
certiorari.



15

A. The Fifth Circuit Correctly Found That Section 
2 Does Not Require Proof Of Decreased Voter 
Turnout or Registration

Petitioners argue that the Fifth Circuit erred by not 
requiring a showing that SB 14 “caused an actual effect 
on minority voting participation” through demonstration 
of decreased turnout or registration. Pet. 19, 20-22. But 
this Court has never imposed such a requirement, which 
would contravene the express language of Section 2, 
the guiding principle of the Fifteenth Amendment, and 
controlling case law.4

Section 2 prohibits the “denial or abridgement ” of the 
right to vote based on race or color. 52 U.S.C. § 10301(a) 
(emphasis added). To require a showing that voters were 
not able to register or vote would limit Section 2 violations 
to only those that result in a “denial” of the right to vote, 
and would read “abridgement” out of the statute. The law 
prohibits more than outright denial of the right to vote. 
The law is violated when “the political processes leading

4. Indeed, the Senate Report to the 1982 amendments to 
Section 2 cites two vote denial cases where a Section 2 violation 
was found, despite that the challenged practices did not necessarily 
affect turnout or registration. See S. Rep. 97-417, at 80, n.119 
(citing Brown v. Post, 279 F. Supp. 60, 63-64 (W.D. La. 1968) and 
United States v. Post, 297 F. Supp. 46, 50-51 (W.D. La. 1969)). 
In particular, the court in Brown found that the failure to make 
opportunities for absentee voting equally available to Black and 
white voters alike violated Section 2, despite “[t]he fact that the 
outcome of the election would not have been changed.” Brown, 
279 F. Supp. at 64; see also Post, 297 F. Supp. at 51 (holding that 
the distribution of incorrect voting instructions violated Section 
2 where it led a number of Black voters to cast effective ballots 
even though there was no evidence that it affected election results).



16

to nomination or election . . . are not equally open to 
participation by members of a [protected] class. . .  in that 
its members have less opportunity than other members 
of the electorate to participate in the political process.” 
52 U.S.C. § 10301(b) (emphasis added). Courts have never 
required a showing that voting is impossible for those 
impacted by the challenged practice and therefore that 
proof of reduced turnout or registration is necessary to 
establish liability.

Similarly, the Fifteenth Amendment, which together 
with the Fourteenth Amendment forms the principal 
constitutional basis for Section 2, see City o f Mobile 
v. Bolden, 446 U.S. 55, 60-61 (1980), does not limit 
its application to voting procedures that result in the 
wholesale denial of voting. Rather, it prohibits “onerous 
procedural requirem ents which effectively handicap 
exercise of the franchise” by minority voters, even though 
“the abstract right to vote may remain unrestricted as to 
race.” Lane v. Wilson, 307 U.S. 268, 275 (1939).

SB14 violates Section 2 by imposing onerous burdens 
on m inority voters that lessen their opportunity to 
participate in the electoral process, even if they ultimately 
manage to overcome these burdens and vote. See Chisom 
v. Roemer, 501 U.S. 380,408 (1991) (Scalia, J., dissenting) 
(“If, for example, a county permitted voter registration 
for only three hours one day a week, and that made it 
more difficult for blacks to register than whites, blacks 
would have less opportunity ‘to participate in the political 
process’ than whites, and § 2 would therefore be violated 
. . . . ”).



17

As the Fifth Circuit noted, Petitioners’ draconian view 
of the law would lead to absurd results that are inconsistent 
with this Court’s precedent. See App. 85a-86a. Under 
Petitioners’ view, literacy tests (were they not otherwise 
expressly prohibited) would not violate Section 2, without 
express proof of decreased voter turnout or registration. 
Id. Poll taxes (again, were they not otherwise prohibited) 
could pass muster as long as those disproportionately 
impacted could gather their resources and manage to 
vote. Id.

Further, there are other reasons to reject Petitioners’ 
novel theory. F irs t, adoption of Petitioner’s theory 
would preclude any pre-enforcement challenges because 
Plaintiffs cannot demonstrate that a challenged practice 
results in reduced registration or turnout before the law 
is implemented. Id. Second, as also noted by the Fifth 
Circuit, “turnout itself does not answer the question of a 
particular voter being denied access: turnout of certain 
people might increase while turnout of others decreases, 
leaving overall turnout the same; yet, those denied the 
right to vote are still disenfranchised.” Id. Thus, adopting 
Texas’s unsupported view of Section 2 would “unmoor 
the Voting Rights Act from its history and decades of 
well-established interpretations about its protections.” 
App. 86a.

B. There Is No Split Among the Fourth, Fifth, 
Sixth, and Ninth Circuits

The Fourth and Sixth Circuits have expressly agreed 
on the same two-part framework applicable to Section 2 
vote denial and abridgement claims that the Fifth Circuit 
applied in this case. See League o f Women Voters ofN.C.,



18

769 F.3d at 240; Ohio State Conference of NAACP v. 
Rusted, 768 F. 3d 524,554 (6th Cir. 2014) vacated on other 
grounds, No. 14-3877, 2014 WL 10384647 (6th Cir. Oct. 
1, 2014); see also Mich. State A. Phillip Randolph Inst., 
833 F.3d at 667 n.2.

These circuits agree that the framework for evaluating 
Section 2 vote denial and abridgement claims is the 
“totality of circumstances,” and that the Senate Factors 
identified in Gingles may also be relevant. App. 49a-50a; 
Mich. State A. Phillip Randolph Inst., 833 F.3d at 667 
n.2; Ohio Democratic Party v. Rusted, 834 F.3d 620, 638 
(6th Cir. 2016); League o f Women Voters ofN.C., 769 F.3d 
at 240.

Ninth Circuit law appears consistent with this 
approach. Indeed, in Gonzalez v. A r izo n a , which 
Petitioners cite in arguing that a circuit split exists, the 
Ninth Circuit explained that a vote denial or abridgement 
claim is “intensely fact-based and localized” and requires 
a “searching practical evaluation of the ‘past and present 
reality,’” guided by the Senate Factors, to determine 
whether “the challenged voting practice resu lts in 
discrimination on account of race.” 677 F.3d at 405-07 
(internal quotations omitted).

1. The circu its agree that a sta tistica l 
disparity alone is insufficient to establish 
a Section 2 violation.

Petitioners m ischaracterize  the te s t  employed 
by the F ifth  Circuit en banc court in arguing that 
the court created a circuit split. Petitioners claim, 
for example, that the Fifth Circuit held that “any law



19

that disparately impacts poor voters” is “necessarily” 
racially discriminatory. Pet. 17. This is wrong. The Fifth 
Circuit explicitly stated that “the district court’s findings 
. . .  rest on far more than a statistical disparity,” and that 
the district court instead “relied on concrete evidence 
regarding the excessive burdens faced by Plaintiffs.” 
App. 70a. Petitioners also mischaracterize Fourth Circuit 
case law, claiming that North Carolina State Conference 
of NAACP v. McCrory held that ‘“slowing] the [voting] 
process’ alone is sufficient to establish § 2 liability.” Pet. 
18. But the relevant passage in McCrory, which concerned 
a discriminatory purpose (rather than results) claim, 
explained that “the panoply of restrictions” at issue, 
including a voter ID provision that slows the voting 
process, “results in greater disenfranchisement than 
any of the law’s provisions individually.” 831 F,3d 204, 
231 (4th Cir. 2016). In other words, the Fourth and Fifth 
Circuits did not rely solely on any one factor to analyze 
the relevant laws’ disenfranchising effect, but—consistent 
with the other circuits—looked at all the relevant facts 
and circumstances to reach their conclusions.

2. The circuits agree that proof of reduced 
voter turnout or registrations is not a 
requirement of a Section 2 violation.

Petitioners also wrongly a sse rt th a t the Sixth 
and Ninth Circuits have held as a matter of law that a 
plaintiff must show evidence of reduced voter turnout or 
registration to succeed on a discriminatory-results claim 
under Section 2. A brief analysis of the case law in these 
circuits belies this assertion.



20

In M ichigan State A. Philip Randolph Inst. v. 
Johnson, the Sixth Circuit, in granting a preliminary 
injunction, held that, “[i]f black voters in Michigan 
disproportionately use straight-party voting, and the 
absence of straight-party voting in Michigan will increase 
wait times, then [the challenged law, which eliminated 
straight-ticket voting,] may in teract with the racial 
polarization of communities in Michigan to cause an 
inequality because African-American communities will 
likely face longer wait times.” 833 F.3d at 668-69 (internal 
alterations and quotations omitted). The court held that 
these wait times were likely to violate Section 2. Id. at 669. 
A requirement of decreased voter turnout or registration 
would be irreconcilable with the result reached by the 
Sixth Circuit at that pre-enforcement posture.

Moreover, although the Sixth C ircuit in Ohio 
Democratic Party v. Husted focused on registration and 
voting rate statistics in analyzing whether the elimination 
of early registration violated Section 2, this is because the 
only evidence that the parties presented was evidence of 
registration and voting rates. The claim failed because 
plaintiffs produced “no contrary statistical evidence 
showing a disparate impact.” 834 F.3d at 639. The Sixth 
Circuit has never ruled that decreased voter turnout or 
registration is a required element of a Section 2 results 
claim.

Nor has the Ninth Circuit. Contrary to Petitioners’ 
argum ent, nowhere in Gonzalez v. A rizona  did the 
court require evidence of decreased voter turnout or 
registration. The court in Gonzalez simply applied 
Rule 52’s “clear error” standard in ruling that, unlike 
the significant evidence adduced by Plaintiffs in this



21

case—that one million eligible Black and Latino voters 
and 600,000 Black and Latino registered voters were 
less likely to possess SB14-photo ID and more likely 
to be burdened in obtaining it—the Gonzalez plaintiffs 
“produced no evidence supporting  [disproportionate 
possession].” 677 F. 3d at 407 (emphasis added).

3. S e v e n th  C ir c u it  law  r e g a r d in g  
discrim inatory results claim s under 
Section 2 is ambiguous and evolving.

The Seventh Circuit is the only colorable outlier on 
the issue. In Frank v. Walker, 768 F.3d 744 (7th Cir. 2014) 
(Frank I), the Seventh Circuit upheld Wisconsin’s voter II) 
law against Section 2 and constitutional challenges. In so 
doing, the court appeared to place more emphasis than the 
other circuits on evidence of voter turnout and registration 
and found the Senate Factors to be “unhelpful.” 768 F.3d 
at 754.5 However, the court further explained that a 
range of evidence could be relevant to evaluating a law’s 
discriminatory impact, an approach that the Fifth Circuit 
in this case described as “not inconsistent with our own.” 
Id. at 753 (“To the extent outcomes help to decide whether 
a state has provided an equal opportunity, we must look 
not at [the challenged law] in isolation but to the entire 
voting and registration system.”); App. 57a.

5. There is also ambiguous language in the opinion that 
could be construed as importing an intent requirement into the 
Section 2 results analysis. Such an approach would not only be in 
conflict with the other circuits, but also with this Court’s precedent 
interpreting Section 2, as well as the text and purpose of the law 
itself. Gingles, 478 U.S. at 35; see also 52 U.S.C. § 10301(b). That 
language is not the basis of Petitioners’ circuit split argument here.



22

Furthermore, it is too early to declare that Seventh 
Circuit law regarding  discrim inatory resu lt claims 
conflicts with the law in other circuits. The proceedings in 
Frank v. Walker are ongoing. Frank I  was followed by a 
second district court opinion, resulting in a second Seventh 
Circuit opinion, 819 F.3d 384 (7th Cir. 2016) {Frank II), 
followed by a third district court opinion, No. ll-c-1128, 
2016 WL 3948068 (E.D. Wis. July 19, 2016), the appeal 
from which is awaiting oral argument before the Seventh 
Circuit. Another, separate challenge to Wisconsin’s voter 
ID law is also on appeal to the Seventh Circuit. See One 
Wisconsin Inst., Inc. v. Thomsen, No. 15-CV-324, 2016 
WL 4059222 (W.D. Wis. July 29,2016). Given these unique 
postures, and the ambiguity in Frank I, there is no clear 
conflict between the Seventh Circuit and the other circuits 
on the applicable standard for Section 2 results claims.

III. REFUSAL TO GRANT CERTIORARI WILL 
NOT LEAD TO PETITIONERS’ PARADE OF 
HORRIBLES

Petitioners’ argument about the alleged parade of 
horribles that could flow from the Fifth Circuit’s decision 
on the discriminatory result of SB 14 is misguided and does 
not merit granting certiorari. Contrary to Petitioners’ 
argument, a finding that SB14 has a discriminatory 
result does not endanger valid laws which, unlike SB14, 
do not impermissibly discriminate on the basis of race. 
The fact-bound and local nature of Section 2’s totality 
of circumstances analysis effectively and appropriately 
cabins the law.

As discussed above, appellate courts in at least 
five circuits have previously applied the to tality  of



23

circumstances analysis to Section 2 cases involving 
allegations of vote denial or vote abridgement, and 
states in these circuits still maintain voter registration 
requirements, assign voters to particular precincts to 
vote, and set regular hours and days for voting. Under this 
multi-factor analysis, some voting laws have been struck 
down as discriminatory under the Section 2 results test, 
see, e.g., LULACv. Perry, 548 U.S. 399 (2006), while many 
challenges to voting laws have failed because the analysis 
revealed no discriminatory results, see, e.g., Johnson v. 
DeGrandy, 512 U.S. 997 (1994).6

The Senate Factors enable courts to distinguish valid 
election laws that unavoidably impose some burdens on 
voters because those laws are necessary to assure the 
efficiency and integrity of elections, from those laws—-like 
Texas’s stringent photo ID law—which, for pretextual 
reasons, impose excessive burdens that discriminate 
against hundreds of thousands, if not millions, of minority 
voters on account of race or color.

6. Texas’s argument that the Fifth Circuit’s reasoning 
invites attack on many voting restric tions on the basis of 
socioeconomic inequality alone is unavailing for the same reason. 
It underestimates the importance of the fact-bound inquiry 
demanded by Section 2, in which a court must consider the precise 
requirements imposed by a policy as they relate to and interact 
with a multitude of factors, including socioeconomic status, that 
are specific to the jurisdiction imposing the policy.



24

IV. THE FIFTH CIRCUIT’S INTERPRETATION 
OF SECTION 2 FITS SQUARELY WITHIN 
CONGRESS’S POWER UNDER THE FIFTEENTH 
AMENDMENT

Petitioners further argue that the Fifth Circuit’s 
“expansive” interpretation of Section 2 is not congruent 
and proportional under the F ifteen th  Amendment 
and would lead to the subordination of “race-neutral” 
principles and to “racial considerations” in violation of 
the Fourteenth Amendment. Pet. 27-29. These arguments 
may be disposed of summarily.

First, every court to consider the issue has held that 
the Section 2 results test is constitutional, and the Court 
itself has operated under the assumption that the statute is 
constitutional. See Bush v. Vera, 517 U.S. 952,990-91 (1996) 
(O’Connor, J., concurring) (collecting Supreme Court 
cases assuming Section 2’s constitutionality and lower 
court cases universally affirming its constitutionality); 
see also Jordan v. Winter, 604 F. Supp. 807, 811 (N.D. 
Miss. 1984) (three-judge panel), sum. a ff’d sub nom„, 
Mississippi Republican Exec. Comm. v. Brooks, 469 U.S. 
1002 (1984) (holding that the results standard is within 
Congress’s enforcement power granted by the Fifteenth 
Amendment). Indeed, the Court has “compared Congress’ 
Fifteenth Amendment enforcement power to its broad 
authority under the Necessary and Proper Clause.” Lopez 
v. Monterey County, 525 U.S. 266,294 (1999) (citing City 
of Rome v. United States, 446 U.S. 156, 175 (1980) and 
South Carolina v. Katzenbach, 383 U.S. 301, 326 (1966)). 
Numerous lower courts have upheld the constitutionality 
of the results standard. See, e.g., United States v. Blaine 
County, 363 F.3d 897, 903-09 (9th Cir. 2004); Marengo



25

County Comm’n, 731 F.2d at 1556-63; Jones v. City of 
Lubbock, 727 F.2d 364, 373-75 (5th Cir. 1984); see also 
Major v. Treen, 574 F. Supp. 325, 342-49 (E.D. La. 1983).

Second, contrary to Petitioners’ argument, the Fifth 
Circuit’s impact analysis raises no constitutional concerns 
of incongruence and disproportionality. In City ofBoerne 
v. Flores, 521 U.S. 507 (1997), the Supreme Court held 
that, when Congress enacts legislation pursuant to its 
Fourteenth Amendment enforcement authority, “[tjhere 
must be a congruence and proportionality between the 
injury to be prevented or remedied and the means adopted 
to that end.” Id. at 520. However, Congress’s enforcement 
powers are “not confined to the enactment of legislation 
that merely parrots the precise wording of the Fourteenth 
Amendment.” Kimel v. Florida Bd. Of Regents, 528 U.S. 
62, 81 (2000). “Legislation which deters or remedies 
constitutional violations can fall within the sweep of 
Congress’ enforcement power even if in the process it 
prohibits conduct which is not itself unconstitutional 
. . . .” Boerne, 521 U.S. at 518. Furthermore, “[i]t is for 
Congress in the first instance to determinfe] whether and 
what legislation is needed to secure the guarantees of the 
Fourteenth Amendment, and its conclusions are entitled 
to much deference.” Kimel, 528 U.S. at 80-81 (internal 
quotations omitted).

The C ourt has no reason to d ep art from the 
overwhelming and longstanding precedent upholding 
the constitutionality of Section 2, particularly in light of 
this deferential standard. Section 2 does not simply ban 
all laws that have any adverse impact on minority voters. 
See DeGrandy, 512 U.S. at 1011-12. Instead, Section 2 
asks courts to evaluate election laws and practices on



26

a case-by-case basis, examining a set of factors that 
are also relevant to proving discriminatory intent by 
circumstantial evidence. This narrow focus helps the law 
prohibit only those discriminatory devices that are either 
the result of purposeful discrimination or perpetuate 
the effects of past purposeful discrimination. See Blaine 
County, 363 F.3d at 909 (describing Section 2 as “self- 
limiting”); S. Rep. 97-417, at 43 (explaining that Section 
2 “avoids the problem of potential over-inclusion entirely 
by its own self-limitation”).

Boerne and its progeny in fact “strengthen[] the case 
for section 2’s constitutionality” because the Voting Rights 
Act “stands out as the prime example of a congruent and 
proportionate response to well documented violations 
of the Fourteenth and Fifteenth Amendments.” Blaine 
County, 363 F.3d at 904; see also City o f Rome, 446 U.S. 
at 173 (“[T]he prior decisions of this Court foreclose any 
argument that Congress may not, pursuant to § 2 [of 
the Fifteenth Amendment], outlaw voting practices that 
are discriminatory in effect.”); Lopez, 525 U.S. at 283 
(“[UJnder the Fifteenth Amendment, Congress may 
prohibit voting practices that have only a discriminatory 
effect.”) (internal quotations omitted).

Finally, as discussed above, Petitioners misleadingly 
claim that the Fifth Circuit’s decision was based solely 
on racially disparate rates of ID possession. Petitioners 
argue that, should this non-existent holding be upheld, 
states would be forced to calculate statistical disparities 
between the races at every turn, infecting decision­
making with proscribed “racial considerations.” Pet. 29. 
However, this Court has for over three decades followed 
Congress’s direction and used the multi-factor totality of 
circumstances analysis in adjudicating vote dilution claims



27

under Section 2—and yet, for example, the vast majority 
of jurisdictions manage to draw district lines that do not 
discriminate on the basis of race. The carefully-crafted 
totality of circumstances standard has throughout this 
time stood as sufficient and constitutional guidance for 
courts in Section 2 cases. There is no reason to upend it 
now.

V. THE FIFTH CIRCUIT’S REMAND OF THE
DISCRIMINATORY INTENT CLAIM DOES NOT
MERIT REVIEW BY THIS COURT

Petitioners argue that review by this Court is merited 
because the Fifth Circuit “contravened multiple precedents 
of this Court by remanding the discriminatory-purpose 
claim after recognizing that the district court’s finding 
was infirm.” Pet. 11,30-35. Nowhere do Petitioners explain 
precisely which “multiple precedents” were “contravened.” 
Rather, they simply disagree with the Fifth Circuit’s 
application of the settled rule of Pullman-Standard v. 
Swint, 456 U.S. 273 (1982), in which this Court held that 
remand is inappropriate only if “the record permits only 
one resolution of the factual issue.” Id. at 292. The Fifth 
Circuit expressly applied the Pullman-Standard test and 
gave no fewer than 13 separate record facts upon which a 
finding of discriminatory intent could be based. See App. 
30a-41a. Indeed, in light of the Fifth Circuit’s conclusion 
that “there remains evidence to support a finding of 
discriminatory intent,” it would have been error for the 
Fifth Circuit not to have remanded the discriminatory 
intent issue.7 App. 42a. Petitioners’ disagreements with

7. Private Plaintiffs maintain that the district court correctly 
applied the Arlington Heights test to the ample evidence of 
intentional discrimination.



28

the Fifth Circuit’s application of Pullman-Standard and 
its assessment of the factual record are not grounds for 
the grant of a writ of certiorari. See U.S. Sup. Ct, R. 10.

Petitioners misleadingly assert that the Fifth Circuit 
held the district court’s finding of discriminatory intent 
to be “infirm.” Pet. 30. In fact, the Fifth Circuit found 
that only “some” of the evidence underlying the district 
court’s ultimate conclusion of discriminatory intent was 
“infirm,” App. 42a, and nowhere near all of the evidence 
at that.8 While the Fifth Circuit devoted approximately 
six pages of its opinion to discussing the evidence upon 
which it believed the district court had placed too much 
weight, the court devoted more than twice that space to 
discussing the “evidence that could support a finding of 
discriminatory intent.” App. 26a. This evidence included: 
(1) the “seismic demographic sh ift” of an increased 
Latino and Black population that motivated the party in 
power, facing a declining voter base, to change the law, 
App. 41a; (2) contemporary examples of state-sponsored 
discrimination, including that the same legislature that 
passed SB14 passed two other laws ruled to have been

8. The Fifth Circuit described the district court’s analysis 
of discriminatory intent as containing “some legal infirmities.” 
App. 26a. For example, it said that the district court relied “too 
heavily” or “disproportionate[ly]” on older history of State- 
sponsored discrimination, App. 19a-20a, and that “several” more 
contemporaneous examples of discrimination were “limited in 
their probative value.” App. 21a. The court also noted that the 
district court “mistakenly relied in part on speculation by [SB14’s] 
opponents,” and “placed inappropriate reliance upon the type 
of post-enactment testimony which courts routinely disregard 
as unreliable,” while recognizing that even that testimony was 
“probative in theory.” App. 24a-25a.



29

enacted with discriminatory purpose, App. 39a-40a; 
(3) proponents’ awareness of SB14’s probable disparate 
impact on minorities, App. 30a; (4) the tenuousness of the 
legislature’s stated purpose of preventing voter fraud, App. 
31a-32a; (5) shifting rationales for the law, App. 40a; (6) 
Texas’s history of justifying voter suppression efforts with 
the supposedly race-neutral reason of promoting ballot 
integrity, App. 31a-32a; (7) the radical and unprecedented 
deviation from normal legislative procedures, App. 
32a-37a; (8) the law’s author’s stated belief that the Voting 
Rights Act had outlived its usefulness, App. 31a; (9) the 
law’s author’s dismissive responses to questions about 
possible disparate impact, id.; (10) the tabling of numerous 
ameliorative amendments, App. 31a; (11) proponents’ 
refusal to explain the rejection of those amendments, App. 
40a; (12) that the bill did nothing to combat the actual 
problem of mail-in ballot fraud, App. 35a-36a; and (13) that 
the bill’s proponents touted it as following Indiana’s voter 
ID law, but removed all of the ameliorative provisions of 
that law, App. 36a.

All of these facts go directly to the non-exhaustive 
factors laid out in Village o f A rling ton  Heights v. 
Metropolitan Housing Development Corp., 429 U.S. 252 
(1977), to determine discriminatory intent: (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. Id. at 266-68.

Petitioners ignore the F ifth  C ircu it’s detailed 
analysis altogether, instead resting virtually their entire



30

argument on the false proposition that “direct evidence” of 
discriminatory intent is required because Plaintiffs took 
discovery of legislative material and deposed legislators. 
Pet. 30, 32-35. First, no court has ever held that only 
so-called “direct” evidence can support a finding of 
discriminatory intent. In fact, the law is to the contrary: 
“[DJiscriminatory intent need not be proved by direct 
evidence.” Rogers, 458 U.S. at 618. “Determining whether 
invidious discriminatory purpose was a motivating factor 
demands a sensitive inquiry into such circumstantial 
and direct evidence of intent as may be available.” 
Arlington Heights, 429 U.S. at 266 (emphasis added); 
see United States v. Brown, 561 F.3d 420, 433 (5th Cir. 
2009) (“To find discriminatory intent, direct or indirect 
circumstantial evidence, including the normal inferences 
to be drawn from the foreseeability of defendant’s actions 
maybe considered.” (emphasis added) (internal quotations 
omitted)).

Second, there is no support for the proposition that 
“circumstantial evidence” is any less probative than 
“direct evidence.” Again, the law is to the contrary: 
“Circumstantial evidence in this respect is intrinsically 
no different from testimonial evidence. Admittedly, 
circumstantial evidence may in some cases point to 
a wholly incorrect result. Yet this is equally true of 
testimonial evidence.” Holland v. United States, 348 U.S. 
121,140 (1954).

Third, simply because Plaintiffs were afforded some 
discovery of the legislative process does not mean that it 
was expected that they would unearth so-called “direct 
evidence” of discriminatory intent. The expectations of 
our courts are to the contrary: “[Officials acting in their



31

official capacities seldom, if ever, announce on the record 
that they are pursuing a particular course of action 
because of their desire to discriminate against a racial 
minority.” Sm ith v. Town of Clarkton, 682 F.2d 1055, 
1064 (4th Cir. 1982). There is seldom a “smoking gun” in 
litigation of this sort and therefore “[cjlearly, the right 
to relief cannot depend on whether or not public officials 
have created inculpatory documents.” Lodge v. Buxton, 
639 F.2d 1358,1363 n. 8,1373 (5th Cir. 1981), affirmed sub 
nom., Rogers v. Lodge, 458 U.S. 613.

Finally, the discovery perm itted to Plaintiffs did 
uncover important evidence upon which the Fifth Circuit 
based its decision that a remand pursuant to Pullman- 
Standard  was required. This includes an email from 
top legislative aide Bryan Hebert warning staffers that 
SB14 would fail preclearance under Section 5 of the 
Voting Rights Act and suggesting that the bill’s list of 
acceptable IDs be expanded, and another email from 
Mr. Hebert undercutting proponents’ public position 
that SB14 was modeled on Indiana’s law. App. 30a, 36a. 
In addition, the depositions of the legislators produced 
key testimony from the bill’s sponsors, who were unable 
to explain their rejection of ameliorative amendments 
or the unprecedented deviations from normal legislative 
procedure.

As the Fifth Circuit recognized repeatedly, it is the 
context in which the various Arlington Heights factors 
interact that is decisive, and findings in that regard are 
rightly made in the first instance by the trial court. It 
would have been reversible error for the Fifth Circuit 
to not remand the intent issue to the district court, 
and review by this Court of the decision to remand is 
unwarranted.



32

VI. THE REMAND FOR DECISION ON REMAINING
ISSUES MILITATES AGAINST REVIEW AT
THIS TIME

The petition for certiorari should be denied for an 
additional reason: there are proceedings under way in 
the district court that are intrinsically connected with the 
issues raised in the petition. The Fifth Circuit remanded 
for further fact-finding on the issue of discriminatory 
intent under Section 2 and the Fourteenth Amendment.9 
Additionally, the F ifth  C ircuit acknowledged that, 
following the decision on intentional discrimination, the 
district court will fashion an appropriate remedy. There 
is no justification for this Court to review the case in this 
unfinished posture.

This C ourt has routinely  denied petitions for 
certiorari when the decision below remanded all or part 
of the case or was otherwise in an interlocutory posture. 
Such delays allow the Court the benefit of the fact-finder’s 
determinations on remand and avoid piecemeal review 
and appeals. See, e.g., Mount Soledad Mem’l A ss’n v. 
Trunk, 132 S. Ct. 2535, at 2535-36 (2012) (certiorari denied 
because circuit court remanded case to district court 
for consideration of remedy). This general rule against 
interlocutory review by this Court has been applied even 
where a “square conflict has emerged” among the circuit 
courts, see Michael v. Ufiited States, 454 U.S. 950, 951 
(1981) (White, J., dissenting from denial of certiorari),

9. The parties have already submitted their initial briefs 
and proposed findings of fact to the district court on the issue of 
discriminatory intent. Oral argument is scheduled for January 
24, 2017.



33

and where fundamental constitutional rights are involved, 
see, e.g., Mount Soledad Mem’l A ss’n., 132 S. Ct. at 2535- 
36 (Alito, J., respecting denial of certiorari) (discussing 
Establishment Clause claims).

Furthermore, the Court particularly disfavors the 
taking of interlocutory appeals where the inconvenience 
and costs of piecemeal review outweigh any prejudice from 
delay. See Gillespie v. U.S. Steel Corp., 379 U.S. 148,152- 
53 (1964) (applying this standard in context of whether 
a case is “final” for purposes of 28 U.S.C. § 1291). Here, 
granting interlocutory review before the completion of 
the proceedings below would delay a final judgment and 
remedy for violations of the fundamental right to vote, now 
confirmed by twelve judges across four different courts 
that have considered Plaintiffs’ challenges to Texas’s strict 
photo ID law in litigation spanning almost five years.

While the Fifth Circuit ordered Texas to implement 
an interim remedy on the “results” violation in time for 
the 2016 election, even that remedy proved imperfect. See 
Jim Malewitz, Am id early voting rush, Texas sees voter 
ID hiccups, Texas Tribune (Oct. 25, 2016), available at 
https://www.texastribune.org/2Q16/10/25/amid-early- 
voting-rush-texas-sees-voter-id-hiccups/ (reviewing 
widespread instances of incorrect voter ID posters and 
misinformation by pollworkers). Elections are held in 
Texas throughout the year, so further delay on a final 
judgment and remedy below will have a concrete impact 
on Texas’s minority voters. Texas Secretary of State, 
Important 2017 Election Dates, available at http://www. 
sos.state.tx.us/elections/ voter/2017-important-election- 
dates.shtml (listing elections throughout 2017 with early 
voting for uniform elections beginning on April 24,2017).

https://www.texastribune.org/2Q16/10/25/amid-early-voting-rush-texas-sees-voter-id-hiccups/
https://www.texastribune.org/2Q16/10/25/amid-early-voting-rush-texas-sees-voter-id-hiccups/
http://www


34

In contrast, Petitioners will suffer no prejudice if 
their petition is denied. Their only claim of prejudice is 
based on the incorrect premise that, if the Court were 
to overturn the Fifth Circuit’s discriminatory result 
finding, “that would avoid unnecessary proceedings on the 
discriminatory-purpose claim.” Pet. 36-37. Petitioners are 
wrong. While discriminatory impact is relevant for both a 
results and an intent claim, the elements of the claims are 
different. A reversal of the results holding on any of the 
bases set forth in the petition would have no impact on the 
viability of the intent claim, which is governed by the above 
discussed Arlington Heights test. Accordingly, even were 
this Court to reverse the “results” decision, the district 
court would still have to adjudicate the discriminatory 
intent claim.



35

CONCLUSION

For the reasons sta ted  above, the Petition for 
Certiorari should be denied.

Date: November 28, 2016 Respectfully submitted,

Wendy Weiser 
Myrna P erez 
J ennifer L. Clark 
T he Brennan Center for 

J ustice at NYU School

E zra D. R osenberg 
Counsel of Record 

J on M. Greenbaum 
Brendan B. Downes 
Lawyers’ Committee for

of Law Civil R ights Under Law
161 Avenue of the Americas, 1401 New York Avenue, N.W., 

12th Floor Suite 400
New York, New York 10013 Washington, DC 20005 

(202) 662-8600
A my L. Rudd 
L indsey B. Cohan 
Dechert LLP 
500 West Sixth Street, 

Suite 2010 
Austin, Texas 78701

erosenberg@lawyerscommittee.org

Sidney S. R osdeitcher 
Paul, Weiss, R ifkind, Wharton 

& Garrison LLP 
1285 Avenue of the Americas 
New York, New York 10019

Neil Steiner 
Dechert LLP R obert Notzon
1095 Avenue of the Americas The Law Office of 
New York, New York 10036 R obert Notzon

1502 West Avenue 
Austin, Texas 78701

mailto:erosenberg@lawyerscommittee.org


36

Daniel Gavin Covich 
Covich Law F irm LLC 
Frost Bank Plaza 
802 North Carancahua 

Street, Suite 2100 
Corpus Christi, Texas 78401

J ose Garza
Law Office Of J ose Garza 
7414 Robin Rest Drive 
San Antonio, Texas 98209

Gary Bledsoe 
The Bledsoe Law F irm 
316 W. 12th Street, Suite 307 
Austin, Texas 78701

Victor Goode 
NAACP
4805 Mt. Hope Drive 
Baltimore, Maryland 21215

Counsel for the Texas State Conference of NAACP 
Branches and the Mexican American Legislative 

Caucus of the Texas House of Representatives

R obert W. Doggett 
Shoshana J. Krieger 
Texas R ioGrande L egal A id 
4920 North IH-35 
Austin, Texas 78751

Marinda van Dalen 
Texas R ioGrande L egal A id 
531 East St. Francis Street 
Brownsville, Texas 78529

J ose Garza
Texas R iogrande L egal A id 
1111 North Main Ave.
San Antonio, Texas 78212

Counsel for Lenard Taylor, Eulalio Mendez Jr., Lionel 
Estrada, Estela Garcia Espinoza, M aximina Martinez 

Lara and La Union Del Pueblo Entero, Inc.



37

Sherrilyn I fill 
J anai Nelson 
Christina A. Swarns 
Coty Montag 
L eah C. Aden 
Deuel R oss
NAACP L egal Defense and 

E ducational F und, I nc.
40 Rector Street, 5th Floor 
New York, New York 10006

J onathan Paikin 
Kelly P. Dunbar 
Tania Faransso 
Thaddeus C. E agles 
Matthew R obinson 
W ilmer Cutler P ickering 

H ale and Dorr LLP  
1875 Pennsylvania Avenue, N.W. 
Washington, DC 20006

Counsel for Imani Clark

R olando L. R ios 
115 East Travis Street,

Suite 1645
San Antonio, Texas 78205

Counsel for the Texas 
Association of Hispanic 
County Judges and County 
Commissioners