Gregg v. Georgia Brief Amicus Curiae
Public Court Documents
January 1, 1975
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Brief Collection, LDF Court Filings. Veasey v. Abbott Brief for Private Plaintiffs-Appellees, 2017. 208b4bfe-c79a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/dc979d7c-01f7-4299-a541-2bbe4e4c3deb/veasey-v-abbott-brief-for-private-plaintiffs-appellees. Accessed April 29, 2025.
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No. 17-40884
3fn ®Jje ®ntteb States; Court of Appeals! for tfje Jftftfj Ctrcutt
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 D irector 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.
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.
On Appeal from the United States District Court for the Southern District of Texas,
Corpus Christi Division, Nos. 2:13-cv-193, 2:13-cv-263, 2:13-cv-291, and 2:13-cv-348
Brief For Private Plaintiffs-Appellees
Counsel listed on inside cover
J. G er a ld H eb er t
Da n iel le M . La n g *
C a m pa ig n L eg a l C enter
1411 K Street NW Suite 1400
Washington, D.C. 20005
* Admitted in New York and California
Courts only; Practice limited to U.S.
Courts and federal agencies.
C h a d W. D unn
K. Sc o t t B ra zil
B r a zil & D unn
4201 Cypress Creek Parkway,
Suite 530
Houston, Texas 77068
A rm a n d G. D erfn er
D er fn er & A ltm a n
575 King Street, Suite B
Charleston, South Carolina 29403
N e il G. Ba ro n
La w O ffic e of N eil G. Baro n
914 FM 517 W, Suite 242
Dickinson, Texas 77539
D a v id R ich a r d s
R ic h a r d s , R o d r ig u e z & Sk e it h , LLP
816 Congress Avenue, Suite 1200
Austin, Texas 78701
Luis R o b e r t o V e r a , J r .
La w O ffice of Luis Ro ber to
V era J r .
111 Soledad, Suite 1325
San Antonio, Texas 78205
Counsel for LULAC
S herrily n Ifill
Jan a i N elson
Leah C. A den
D euel R oss
C ara M c C lella n
N A A C P L egal D efen se and
Ed u c a tio n a l Fu n d , In c .
40 Rector Street, 5th Floor
New York, New York 10006
Jo n a th a n Pa ikin
K elly P. D u n b a r
Ta n ia F a r a n sso
W ilm er C u tler P ic k er in g H ale
and D o r r LLP
1875 Pennsylvania Avenue, NW
Washington, D.C. 20006
Counsel for Imani Clark
Counsel for Veasey/LULAC Plaintiffs
R o bert W . Do g g ett
S h o sh a n n a K rieg er
T exas R ioG ran de L egal A id
4920 N. IH-35
Austin, Texas 78751
Jo se G arza
T exas R ioG ran de Legal A id
1111 N. Main Ave.
San Antonio, Texas 78212
Counsel for Lenard Taylor, Eulalio
Mendez Jr., Lionel Estrada, Estela
Garcia Espinoza, Maximina Martinez
Lara, and La Union Del Pueblo
Entero, Inc.
CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel of record certifies th a t the following listed
persons and en tities as described in the fourth sentence of Rule 28.2.1
have an in te re s t in th e outcome of th is case. These rep resen ta tions are
m ade in order th a t th e judges of th is court m ay evaluate possible
disqualification or recusal.
Private Plaintiffs-Appellees Former or Current Counsel
• M arc Veasey
• Ja n e H am ilton
• Sergio DeLeon
• Floyd C arrie r
• A nna B urns
• M ichael M ontez
• Penny Pope
• O scar O rtiz
• Koby Ozias
• John M ellor-Crum ley
• Ken Gandy
• Gordon Benjam in
• Evelyn B rickner
• D allas County, Texas
• League of U nited L atin
A m erican C itizens
• Neil G. Baron
• B razil & D unn
• Jo sh u a Jam es Bone
• Kem bel Scott Brazil
• C am paign Legal C enter
• A rm and D erfner
• Chad W. D unn
• M ark P. G aber
• J . G erald H ebert
• D anielle M. Lang
• D avid R ichards
• R ichards, Rodriguez &
Skeith , LLP
• P au l M arch Sm ith
• Luis Roberto Vera, J r .
• M exican A m erican
Legislative Caucus, Texas
House of R epresen tatives
• Texas S ta te Conference of
NAACP B ranches
• V ishal A g rah ark ar
• Jen n ife r C lark
• B rennan C enter for Justice
• L indsey B. Cohan
• G ary Bledsoe
• Covich Law Firm LLC
• D echert LLP
• D aniel Gavin Covich
• B rendan B. Downes
• M axim illian L. Feldm an
♦ 1
Private Plaintiffs-Appellees Former or Current Counsel
• Jose G arza
• Victor Goode
• Jon M. G reenbaum
• Law Office of Jose G arza
• Law Office of Robert Notzon
• L aw yers’ Com m ittee of Civil
R ights U nder Law
• Robert Notzon
• NAACP
• M yrna Perez
• Paul, Weiss, Rifkind,
W harton & G arrison LLP
• P o tte r Bledsoe, LLP
• Sidney S. Rosdeitcher
• E zra D. Rosenberg
• Amy L. Rudd
• Neil S teiner
• W endy W eiser
• M ichelle Yeary
• E rand i Zam ora
• E ste la G arcia Espinosa
• Lionel E strad a
• La U nion Del Pueblo Entero,
Inc.
• M axim ina M artinez L ara
• Eulalio Mendez, J r .
• L enard Taylor
• Jose G arza
• Robert W. Doggett
• S hoshanna K rieger
• Texas Rio G rande Legal Aid,
Inc.
• M arinda van D alen
• Im ani C lark • Leah C. Aden
• H asan Ali
• D anielle Conley
• Kelly D unbar
• T haddeus Eagles
• Lynn E isenberg
• T ania C. F aransso
11
Private Plaintiffs-Appellees Former or Current Counsel
• Ryan Haygood
• S herrilyn A. Kill
• N atash a K orgaonkar
• Sonya Lebsack
• C ara M cClellan
• Coty M ontag
• Ja n a i S. Nelson
• NAACP Legal Defense and
E ducational Fund, Inc.
• Jo n a th an E. Paik in
• Deuel Ross
• R ichard Short
• C hristina A. Sw arns
• W ilm er C utler P ickering
H ale and Dorr LLP
Non-Private Plaintiffs-Appellees Counsel
• U nited S ta tes of A m erica • A nna Baldwin
• M eredith B elL Platts
• Robert S. B erm an
• Thom as E. C handler
• R ichard Dellheim
• D iana K. F lynn
• D aniel J. F reem an
• Gregory B. Friel
• Bruce I. G ear
• Jo h n M. Gore
• Bradley E. H eard
• T. C hristian H erren , J r .
• Jenn ife r L. M aranzano
• Abe M artinez
• A vner M ichael Shapiro
• U.S. D epartm ent of Ju stice
• E lizabeth S. W estfall
Ill
Defendants-Appellants Counsel
• Greg Abbott, in his official • Adam W. Aston
capacity as Governor of • J . Cam pbell B arker
Texas • Jam es D. Blacklock
• Rolando Pablos, in his • J. Reed Clay, J r .
official capacity as Texas • A ngela V. Colmenero
Secretary of S ta te • A rth u r C. D’A ndrea
• S ta te of Texas • Ben A. Donnell
• Steve M cGraw, in h is official • M atthew H. F rederick
capacity as D irector of the • S tephen Ronald K eister
Texas D epartm en t of Public • Scott A. Keller
Safety • Jaso n R. LaFond
• D onald A. K ieshnick
• Jeffrey C. M ateer
• Office of the A ttorney
G eneral
• Ken Paxton
• Jen n ife r M. Roscetti
• Jo h n B. Scott
• S tephen Lyle T atum , Jr .
• G. David W hitley
• L indsey E lizabeth Wolf
/s /L in d s e y B. Cohan_______________
Lindsey B. Cohan
Counsel fo r Texas S ta te Conference o f
N A A CP B ranches & M A L C
IV
STATEMENT REGARDING ORAL ARGUMENT
This m a tte r is cu rren tly scheduled for oral argum en t before the
Court on Tuesday, Decem ber 5, 2017. P riv a te Plaintiffs-A ppellees
agree th a t th is case w arra n ts oral argum ent.
v
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES........................................................................................ x
INTRODUCTION......................................................................................................... 1
COUNTER-STATEMENT OF JURISDICTION....................................................... 5
COUNTER-STATEMENT OF THE ISSUES............................................................ 5
STATEMENT OF THE CASE..................................................................................... 5
SUMMARY OF ARGUMENT.................................................................................... 9
ARGUMENT............................................................................................................... 12
I. STANDARDS OF REVIEW.................................................................12
II. THE DISTRICT COURT’S DISCRIMINATORY INTENT
FINDING SCRUPULOUSLY COMPLIED WITH THIS
COURT’S DIRECTIONS AND SHOULD BE AFFIRMED
UNDER RULE 52.................................................................................. 13
A. The District Court Did Not Commit Legal Error On
Remand.........................................................................................15
1. The district court correctly construed this
Court’s decision.................................................................15
2. This Court did not direct the district court to
retry all its prior findings of fact.......................................17
3. The district court followed this Court’s
instructions......................................................................... 18
4. Discriminatory intent need be only one purpose
of the action and judicial deference to the
Legislature is not due........................................................ 21
5. The district court was not required to await
legislative action before rendering its opinion on
discriminatory intent......................................................... 24
v i
6. Texas’s claim that SB14’s spillover effects on
some white voters defeat Plaintiffs’
discriminatory purpose claim has been waived
and is frivolous................................................................. 26
B. The District Court’s Findings Of Fact On Intentional
Discrimination Are Not Clearly Erroneous............................... 28
1. Discriminatory intent is an issue of fact......................... 28
2. The district court properly applied the Arlington
Heights factors.................................................................. 30
i. SB 14 disparately impacted Black and
Latino voters........................................................... 31
ii. Seismic demographic changes coupled
with racially polarized voting, led to SB 14.......... 31
iii. The Legislature knew of the probable
disparate impact of SB 14...................................... 35
iv. The Legislature justified the bill with
pretext..................................................................... 40
v. The legislative history of SB 14 provides
substantial evidence of discriminatory
intent....................................................................... 44
(a) The proponents of SB 14 used
unprecedented measures to
achieve their goal........................................ 45
(b) SB 14’s passage was marked by
substantive departures................................. 52
(c) SB 14’s proponents rejected
ameliorative amendments........................... 55
(d) Contemporaneous statements—and
silence—by legislators provide
evidence of discriminatory intent.............. 57
(e) Texas’s new legislative history
theory is improper and further proof
of pretext......................................................59
vii
vi. Texas has a recent history of
discrimination in voting........................................ 62
vii. Texas has not met its burden of proving it
would have enacted SB 14 absent
discriminatory purpose.......................................... 63
III. THIS COURT SHOULD AFFIRM THE DISTRICT
COURT’S REMEDIAL ORDER.........................................................66
A. Standard Of Review.................................................................... 66
B. The District Court’s Remedial Order Was Sound,
Supported, And Within Its Equitable Discretion...................... 66
1. Unlawful intentional discrimination requires a
meaningful and complete remedy................................... 70
2. SB5 perpetuates SB14’s discriminatory features............72
3. SB5 subjects victims of intentional
discrimination to additional unnecessary
procedures to vote............................................................. 78
4. Viewed in its proper context, SB5 does not
remedy the violations........................................................84
C. Texas And The United States Have Identified No
Abuse Of Discretion In The District Court’s Remedy............. 86
IV. THIS CASE IS NOT MOOT...............................................................101
A. Private Plaintiffs Are Entitled To Additional Remedies....... 102
1. Private Plaintiffs have a concrete, live interest in
a finding that SB 14 is intentionally
discriminatory..................................................................103
2. Plaintiffs have a live, concrete interest in a full
remedy to discriminatory results................................... 106
B. The Adoption of SB5 in 2017 Does Not by Itself
Automatically Moot This Case................................................. 107
C. Texas’s Cessation Of Its Enforcement Of SB 14 Cannot
Moot This Case..........................................................................110
D. The District Court’s Decision Should Not Be Vacated......... 113
viii
V. SB14 DID HAVE RACIALLY DISCRIMINATORY
RESULTS.............................................................................................116
CONCLUSION......................................................................................................... 116
IX
TABLE OF AUTHORITIES
Page(s)
Cases:
Abie S ta te B ank v. Weaver,
282 U.S. 765 (1931)..................................................................................109
A lvarez v. Sm ith ,
558 U.S. 87 (2009)...................................................................................114
Am . F ed ’n o f State, City A n d M un. Em ps. v. City o f Benton,
513 F.3d 874 (8th Cir. 2008)....................................................................66
Anderson v. City o f Bessemer City,
470 U.S. 564 (1985)............................................................................. 13, 29
Ansell v. Green Acres Contracting Co.,
347 F.3d 515 (3rd Cir. 2003)....................................................................25
A rizona v. California,
460 U.S. 605 (1983).................................................................................... 16
Ayotte v. P lanned Parenthood o f N. New E ngland,
546 U.S. 320 (2006)....................................................................................87
B ethune-H ill v. Va. S ta te Bd. O f Elections,
137 S. Ct. 788 (2017)...................................................................................62
Blackm oon v. Charles M ix Cnty.,
505 F. Supp. 2d 585 (D.S.D. 2007).......................................................105
Brooks v. United States,
757 F.2d 734 (5th Cir. 1985).............................................................26, 59
Brown v. Plata,
563 U.S. 493 (2011)....................................................................................66
B urszta jn v. United States,
367 F.3d 485 (5th Cir. 2004)....................................................................29
Cane v. Worcester Cnty.,
35 F.3d 921 (4th Cir. 1994)...................................................................... 85
Chapm an v. N A SA ,
736 F.2d 238 (5th Cir. 1984)....................................................................16
x
City o f Cuyahoga Falls v. Buckeye Cmty. Hope Found,.,
538 U.S. 188 (2003)..................................................................................... 50
City o f Mobile, Ala. v. Bolden,
446 U.S. 55 (1980)........................................................................................23
City o f Port A r th u r u. United States,
459 U.S. 159 (1982)..................................................................................... 84
City o f R ichm ond v. United States,
422 U.S. 358 (1975)............................................................................. 70, 86
Coggeshall v. United States,
69 U.S. 383 (1864)........................................................................................30
Colum bus Bd. o fE duc. v. Penick,
443 U.S. 449 (1979)..................................................................................... 35
Common Cause/G eorgia v. B illups,
406 F. Supp. 2d 1326 (N.D. Ga. 2005).................................................. 82
Consumer Prod. Safety C om m ’n v. G TE Sylvania , Inc.,
447 U.S. 102 (1980)..................................................................................... 25
Cooper v. H arris,
137 S. Ct. 1455 (2017).................................................................................22
Cooper u. M cBeath,
11 F.3d 547 (5th Cir. 1994)................................................................... 109
Covington v. N orth Carolina,
No. 1:15CV399, 2017 WL 4162335 (M.D.N.C. Sept. 19,
2017)..................................................................................................................85
Crawford v. M arion County,
553 U.S. 181 (2008)............................................................................. 41, 87
D avis v. Abbott,
781 F.3d 207 (5th Cir. 2015)...................................................................109
D avis v. D ep’t o f Labor & Indus, o f Wash.,
317 U.S. 249 (1942)..................................................................................... 23
D ep’t o f Labor v. Triplett,
494 U.S. 715 (1990)..................................................................................... 23
xi
Diffenderfer v. Cent. B ap tist Church,
404 U.S. 412 (1972).................................................................................. 107
D illard v. B a ldw in Cnty. C om m ’n,
694 F. Supp. 836 (M.D. Ala. 1988)........................................... 77, 85, 91
Doe ex rel. Doe v. Lower M erion Sch. Dist.,
665 F.3d 524 (3d Cir. 2011)...................................................................... 28
Easley v. Cromartie,
532 U.S. 234 (2001)..............................................................................22
E llis v. Ry. Clerks,
466 U.S. 435 (1984)............................................................................102
Fairley v. Hattiesburg, M iss.,
584 F.3d 660 (5th Cir. 200 9 )....................................................................13
Foster v. Chatm an,
136 S. Ct. 1737 (2016).................................................................................61
Friends o f the Earth, Inc. v. L a id law Envtl. Servs. (TOC), Inc.,
528 U.S. 167 (2000).........................................................................110, 111
Gates u. Cook,
376 F.3d 323 (5th Cir. 2004)....................................................................66
Gen. Elec. Co. v. Joiner,
522 U.S. 136 (1997)..............................................................................66
Green v. Cnty. Sch. Bd.,
391 U.S. 430 (1968)...................................................................... 70, 93, 94
H all u. Bd. O f Sch. C om m ’rs,
656 F.2d 999 (5th Cir. U n it B Sept. 1 981 )........................................112
H arris v. Siegelm an,
695 F. Supp. 517 (M.D. Ala. 1988)......................................................... 82
Hopwood v. Texas,
236 F.3d 256 (5th Cir. 200 0 )....................................................................13
Houston Chronicle Pub. Co. v. City o f League City,
488 F.3d 613 (5th Cir. 2 007 )........................................................ 114, 115
xii
H unter v. Underwood,
471 U.S. 222 (1985)............................................................................passim
H utto v. Finney,
437 U.S. 678 (1978)..................................................................................... 66
In re Corrugated Container Grand Jury,
659 F.2d 1330 (5th Cir. U n it A Oct. 1981)........................................108
Karcher v. May,
484 U.S. 72 (1987)......................................................................................114
Kirksey v. Bd. o f Supervisors,
554 F.2d 139 (5th Cir. 1977)..................................................................... 78
Knox v. Serv. Em ps. I n t ’l Union, Local 1000,
132 S. Ct. 2277 (2012)....................................................................102, 108
Koch v. United States,
857 F.3d 267 (5th Cir. 2017).............................................................12, 29
Kram er v. Union Free Sch. Dist. No. 15,
395 U.S. 621....................................................................................................23
Kremens v. Bartley,
431 U.S. 119 (1977)................................................................................... 108
Lane v. Wilson,
307 U.S. 268 (1939).................................................................................... 74
Lewis v. C onti B ank Corp.,
494 U.S. 472 (1990).................................................................................. 108
Louisiana v. United States,
380 U.S. 145 (1965).................................................................... 71, 84, 104
LU LAC v. Perry,
548 U.S. 399 (2006).................................................................... 18, 32, 104
M assachusetts v. Oakes,
491 U.S. 576 (1989).................................................................................. 108
M atter o f Com plaint o f L u h r Bros., Inc.,
157 F.3d 333 (5th Cir. 1998).................................................................... 28
xm
M cCleskey v. Kemp,
481 U.S. 279 (1987)....................................................................................23
M cD onald v. Bd. o f Election C om m ’rs,
394 U.S. 802 (1969)....................................................................................23
M cIntosh Cnty. Branch o f the N AAC P v. City o f Darien,
605 F.2d 753 (5th Cir. 1979).................................................................... 82
M cKinley v. Abbott,
643 F.3d 403 (5th Cir. 2011)..................................................................105
Med. Ctr. Pharm acy v. Holder,
634 F.3d 830 (5th Cir. 2011).................................................................... 16
M iller v. Johnson,
515 U.S. 900 (1977).................................................................................... 23
Miss. S ta te Chapter, Operation P ush v. A lla in ,
674 F. Supp. 1245 (N.D. Miss. 1987).................................................. 105
M iss. S ta te Chapter, Operation Push, Inc. v. M abus,
932 F.2d 400 (5th Cir. 1991)...........................................................passim
N.C. S ta te Conference o f N AAC P v. McCrory,
831 F.3d 204 (4th Cir. 2016), cert, denied,
137 S. Ct. 1399 (2017).......................................................................passim
Ne Fla. Chapter o f Associated Gen. Contractors o f Am . v.
City o f Jacksonville,
508 U.S. 656 (1993)............................................................... 108, 109, 110
Pac. Shores Props., LLC v. City o f Newport Beach,
730 F.3d 1142 (9th Cir. 2013)...........................................................43, 47
Perez v. Abbott,
253 F. Supp. 3d 864 (W.D. Tex. 2017).......................................106, 109
Perez v. Texas,
891 F. Supp. 2d 808 (W.D. Tex. 2012)............................................ 33-34
Perez v. Texas,
970 F. Supp. 2d 593 (W.D. Tex. 2013)................................................ 113
xiv
Perkins v. City o f West Helena,
675 F.2d 201 (8th Cir. 1982)....................................................................49
Pers. A d m ’r o f Mass. u. Feeney,
442 U.S. 256 (1979).................................................................................... 30
Princeton Univ. v. Schm id ,
455 U.S. 100 (1982)................................................................................... 108
P ullm an-S tandard v. Sw in t,
456 U.S. 273 (1982)......................................................................13, 16, 29
Reeves v. Sanderson P lum bing Prods., Inc.,
530 U.S. 133 (2000)..................................................................................... 44
Regan v. Time, Inc.,
468 U.S. 641 (1984)..................................................................................... 87
Resident A dvisory Bd. v. Rizzo,
564 F.2d 126 (3d Cir. 1977)................................................................ 47-48
Reynolds v. S im s,
377 U.S. 533 (1964)............................................................................. 84-85
R ichardson v. City and County o f Honolulu,
124 F.3d 1150 (9th Cir. 1997).................................................................. 28
Rogers v. Lodge,
458 U.S. 613 (1982)............................................................................. 13, 29
Salazar v. Buono,
559 U.S. 700 (2010)............................................................................. 87, 88
Shaw v. Reno,
509 U.S. 630 (1993)..................................................................................38
Sierra Club v. G lickman,
156 F.3d 606 (5th Cir. 1998)................................................................. 114
Sossam on v. Lone S tar S ta te o f Texas,
560 F.3d 316 (5th Cir. 2009).............................................. I l l , 112, 113
South Carolina v. Katzenbach,
383 U.S. 301 (1966)..................................................................................101
xv
South Carolina v. United States,
898 F. Supp. 2d 30 (D.D.C. 2 0 1 2 )................................................. passim
St. M ary’s Honor Ctr. v. Hicks,
509 U.S. 502 (1993).....................................................................................44
Staley v. H arris Cnty.,
485 F.3d 305 (5th Cir. 2007)................................................................. 116
Sta te Indus., Inc. v. Mor-Flo Indus., Inc.,
948 F.2d 1573 (Fed. Cir. 1 9 9 1 )............................................................... 16
Sta ten v. New Palace Casino, LLC,
187 Fed. App’x 350 (5th Cir. 2006)........................................................ 44
S u n d a y Lake Iron Co. v. W akefield Twp.,
247 U.S. 350 (1918).....................................................................................23
Sw ann v. Charlotte-M ecklenburg Bd. o f Educ.,
402 U.S. 1 (1971)..................................................................................86, 87
Trin ity L utheran Church o f Columbia, Inc. v. Comer,
137 S. Ct. 2012 (2017)...............................................................................I l l
U.S. Bancorp Mortg. Co. v. Bonner M all P ’ship,
513 U.S. 18 (1994)...........................................................................114, 115
United S ta tes v. Brown,
561 F.3d 420 (5th Cir. 2 009 )......................................................... passim
United S ta tes v. Chem. Found.,
272 U.S. 1 (1926).......................................................................................... 23
United S ta tes v. Gregory-Portland Indep. Sch. Dist.,
654 F.2d 989 (5th Cir. U n it A Aug. 1981)........................................... 28
United States v. M unsingwear,
340 U.S. 36 (1950)............................................................................. 113-114
United S ta tes v. Osamor,
271 Fed. App’x 409 (5th Cir. 2008)................................................. 26, 59
United S ta tes v. Schaffer,
600 F.2d 1120 (5th Cir. 1979)................................................................. 39
xvi
United States v. Texas,
457 F.3d 472 (5th Cir. 2006)....................................................................27
United States v. Thomas,
167 F.3d 299 (6th Cir. 1999)....................................................................16
United States v. U.S. G ypsum Co.,
333 U.S. 364 (1948).................................................................................... 12
United States v. Vargas-Ocampo,
747 F.3d 299 (5th Cir. 2014)....................................................................31
United States v. Virginia,
518 U.S. 515 (1996)............................................................................passim
Veasey v. Abbott,
830 F.3d 216 (5th Cir. 2016).......................................................... passim
Veasey v. Perry,
71 F. Supp. 3d 627 (S.D. Tex. 2 0 1 4 )............................................ passim
Vill. o f Arlington H eights v. Metro. Hous. Dev. Corp.,
429 U.S. 252 (1977)............................................................................passim
W ashington v. Seattle Sch. Dist. No. 1,
458 U.S. 457 (1982)............................................................................... 89-87
Westwego Citizens for Better Gov’t v. City o f Westwego,
946 F.2d 1109 (5th Cir. 1991)................................................................. 89
W illiam s v. City o f Dothan,
818 F.2d 755 (11th Cir. 1987)...................................................................27
Wise v. Lipscomb,
437 U.S. 535 (1978)..................................................................................... 89
W iseman v. New Breed Logistics, Inc.,
72 F. Supp. 3d 672 (N.D. Miss. 2014)................................................... 61
Young v. Fordice,
520 U.S. 273 (1997)................................................................................... 101
xvii
Statutes & Other Authorities:
28 U.S.C. § 1291........................................................................................................ 4
28 U.S.C. § 1292........................................................................................................ 4
28 U.S.C. § 1331........................................................................................................ 5
28 U.S.C. § 1343........................................................................................................ 5
28 U.S.C. § 1345........................................................................................................ 5
52 U.S.C. § 10302................................................................................................. 104
52 U.S.C. § 10308......................................................................................................5
F ed . R. Civ . P. 5 2 .......................................................................................... passim
H.R. Rep. No. 89-439 (1965)............................................................................. 102
S. Rep. No. 97-417 (1982)......................................................................30, 58, 71
T ex. Elec . Code § 64.012 (2003)...................................................................... 54
T ex. P enal Code § 12.34 (2003)....................................................................... 54
V oting R ights Act § 2 ................................................................................... passim
Voting R ights Act § 3 ...................................................................................passim
Wright & M iller , F ed . P rac. & P roc. § 3 5 3 3 .......................................... 108
xviii
INTRODUCTION
At the h e a rt of th is appeal is the d istric t court’s well-founded
finding of in ten tiona l discrim ination. T hat finding is based on a record
th a t th is Court, s itting en banc, concluded could support a finding of
in ten tiona l d iscrim ination, even shorn of the evidence th is Court found
infirm . M eticulously following th is C ourt’s directive to determ ine
w hether th e absence of the infirm evidence affected the outcome of its
original calculus, the d istric t court reaffirm ed its prior findings th a t the
Texas L egislature, controlled by a m ajority p arty aw are of th e political
th re a t of an increasing m inority population, strong-arm ed to passage the
s tric tes t voter ID law in the country— SB 14—w ith the in ten t th a t the
law ’s requ irem en ts would d isproportionately im pact the voting righ ts of
Black and Latino voters. The d istric t court based th is conclusion on
ab u n d an t record evidence, including th e surgical precision w ith which
SB14’s proponents selected photo IDs th a t Blacks and Latinos were least
likely to possess and om itted several secure bu t less d iscrim inatory forms
of ID, and th e L eg isla tu re’s use of an unprecedented com bination of
procedural m aneuvers th a t shortcu t debate and rejected—usually
w ithout explanation—scores of am eliorative am endm ents, all the while
supporting the bill w ith a series of p re tex tu a l rationales, m ost notably
th a t th e law was in tended to p reven t non-existent in-person voter fraud.
And th e d istric t court found th a t SB 14 produced its in tended effect:
Black and Latino Texas voters are two to th ree tim es less likely to possess
the lim ited forms of ID th a t SB 14 requ ires and two to th ree tim es more
likely th a n Anglo Texas voters to be burdened in getting th e IDs.
Texas’s criticism s of the d istric t court’s findings are largely quibbles
w ith the court’s factual inferences—not evidence of the clear erro r th a t
m ust be shown to reverse those findings. The d istric t court’s findings,
based en tire ly on factual conclusions th a t th is Court has a lready found
to be supported by record evidence, easily pass m uster under Rule 52.
Because SB 14 was enacted w ith d iscrim inatory in ten t, th e d istric t
court properly enjoined not only SB14, bu t also the recently enacted SB5,
because the la tte r p erp e tu a ted alm ost all of SB14’s d iscrim inatory
features, and thereby subjects th e victim s of in ten tional d iscrim ination,
d isproportionately Black and Latino voters, to fu rth e r bu rdens—
including the th re a t of prosecution for felony perjury—before th e ir votes
can be counted. A lthough Texas and, now, the U nited S ta tes argue th a t
SB5 largely codifies the in te rim rem edial order agreed to by th e parties
2
as a “stop-gap” before the 2016 election and is no different th a n th e laws
of m any o ther states, the d istric t court m ade findings of fact to the
contrary in support of its order on rem edies. M ore im portan t, w hat Texas
and the U nited S tates assiduously ignore is th a t n e ith e r the in terim
rem edial order nor the laws of these o ther s ta te s were p u t in place after
a finding of in ten tional discrim ination. T h a t finding d istinguishes th is
case and, as discussed below, is dispositive on all issues ra ised by Texas.
Texas argues th a t a ju risd ic tion’s a ttem p t to rem ed iate—even if
only in p a rt— a discrim inatory resu lts violation concerning a law also
found to in tentionally d iscrim inate based on race au tom atically ends the
en tire case, bars the d istric t court from ordering a com plete rem edy for
proven in ten tional racial discrim ination, and wipes from the books
judicial findings of d iscrim inatory in ten t. No court has ever ru led as
Texas dem ands.
T here is good reason for th is. To agree w ith Texas would
underm ine the constitu tional and s ta tu to ry prohibitions against
in ten tional discrim ination. Ju risd ic tions could engage in purposefully
d iscrim inatory acts, w ith th e assu rance th a t, if caught, all they need do
3
is a lte r th e law to reduce its discrim inatory resu lts, and th en never be
required to rem edy th e ir pernicious in ten t. This is not the law.
R ather, th e law is th a t in ten tional d iscrim ination requ ires a
rem edy b roader th a n one addressing discrim inatory resu lts only. It
requ ires a rem edy th a t follows the settled principle th a t all vestiges of
d iscrim inatory in te n t m ust be elim inated “root and b ranch .” These
rem edies are prophylactic in na tu re , including declaratory and in junctive
relief, and, in th e voting righ ts context, relief under Section 3(c) of the
Voting R ights Act (“VRA”). P rivate P laintiffs are entitled to p u rsu e those
rem edies even afte r the passage of SB5.
4
COUNTER-STATEMENT OF JURISDICTION
This Court has appellate jurisd ic tion under 28 U.S.C. §§ 1291-
1292.
P lain tiffs’ claim s are not moot. The D istric t Court had jurisd iction
under 28 U.S.C. §§ 1331, 1343(a)(3), and 1345, 52 U.S.C. § 10308(f), and
th is C ourt’s m andate, see Veasey v. A bbott, 830 F.3d 216, 272 (5th Cir.
2016), cert, denied, 137 S. Ct. 612 (2017) (“V easeyIF ).
COUNTER-STATEMENT OF THE ISSUES
1. W hether th e d istric t court clearly erred in finding th a t SB14
had a d iscrim inatory purpose in violation of Section 2 of the VRA, and
th e F o u rteen th and F ifteen th A m endm ents to the U.S. C onstitution?
2. W hether th e d istric t court abused its discretion in
perm anen tly enjoining SB5?
3. W hether the Section 2 resu lts claim and/or the Section 2 and
constitu tional in ten tiona l d iscrim ination claim s are moot and subject to
vacatur?
STATEMENT OF THE CASE
P riv a te P laintiffs d ispu te the S ta tem en t of the Case as presen ted
by Texas, w ith respect to a t least several points.
5
The purpose of th e rem and w as to determ ine w hether th e absence
of the infirm evidence changed the outcome of the distric t court’s original
calculus, not to rev isit findings unaffected by infirm evidence. Indeed,
th is Court directed th a t no new evidence be considered. Veasey II, 830
F.3d a t 242. Texas also wrongly argues th a t th is Court directed the
d istric t court to consider legislative action in reassessing the in ten tiona l
d iscrim ination finding, which, as explained infra, is an incorrect reading
of th is C ourt’s opinion.
On rem and, the D istric t Court en tered an In terim Rem edial Order,
which w as negotiated by the parties in the context of a resu lts violation
only in the “short tim efram e” before the approaching Novem ber election,
p u rsu an t to th is C ourt’s directive. Veasey II, 830 F.3d a t 269. P laintiffs
never asserted th a t the D eclaration of Reasonable Im pedim ent (“DRI”)
provided in the In terim Rem edial O rder constitu ted all re lief to which
they would be en titled on th e ir resu lts or in te n t claims. To the contrary,
all parties “preserve[d] th e ir righ ts to seek or oppose fu tu re relief.”
ROA.67879.
The d istric t court rew eighed its discrim inatory in te n t finding,
p u rsu an t to the tim eline suggested by th is Court, delaying any
6
determ ination and rem edy un til after the Novem ber 2016 election.
V easey ll, 830 F.3d a t 272; ROA.69764-73; ROA.70430-56.
Briefing on the in te n t issue was com pleted on Decem ber 16, 2016.
Texas subm itted proposed findings of fact based on a new, over-arching
theory, never before offered to the d istric t court or th is Court, i.e., th a t
SB14 w as the culm ination of Texas’s decades-long a ttem p t to m odernize
its election laws. ROA.68784-951. This is why “m uch of it [was] not
analyzed in th e court’s orig inal” ruling. 1 Br. for A ppellants, Doc.
00514199432 (“Tex. Br.”), a t 26.2 C ontrary to th e order of th is Court,
Texas asked the d istric t court to accept new evidence in support of th is
new theory.
The D istrict Court issued its decision finding th a t Texas passed
SB14 in 2011 w ith a d iscrim inatory in ten t on A pril 10, 2017, followed by
a hearing on rem edy procedures. ROA.69764—73; ROA.74949—79. Both
Texas and the U nited S ta te s argued th a t an ev identiary hearing w as not
necessary. ROA.74965-68. P riva te P laintiffs suggested th a t th e d istric t
1 As discussed infra, even if th e d istric t court considered th is purported
justification, the record evidence overw helm ingly supports a finding of
in ten tiona l discrim ination.
2 All cites to ECF docum ents are m ade to th e ECF page num ber.
7
court address the legal issues surrounding SB5’s sufficiency to rem edy
SB14’s harm s first, as th is could obviate the need for an evidentiary
hearing. ROA.69831—45. P riva te P laintiffs preserved th e ir request for
an ev identiary hearing if th e d istric t court determ ined th a t SB5 did not
fail as a m a tte r of law to rem edy SB14’s harm s. Id. The parties la te r
agreed to rely on the existing record. ROA.70432.
SB5 requ ires voters to a tte s t under penalty of perjury to th e specific
im pedim ent they face, b u t rem oves the “o ther” box th a t was included on
the DRI under the in te rim order. ROA.69813-15. SB5 also increases the
penalty for a false s ta tem en t on a reasonable im pedim ent declaration to
a “sta te ja il felony,” and requ ires th a t the DRI include “a notice th a t a
person is subject to prosecution for perjury . . . for a false s ta tem en t or
false inform ation.” ROA.69814-15.
A lthough Texas relies heavily on the in te rim order as evidence th a t
SB5 is curative of the resu lts violation, SB5 differs m aterially from the
in terim rem edy in im p o rtan t respects. This Court did not opine on the
specifics of a reasonable im pedim ent process, including w hether it should
perm it voters to provide a reasonable im pedim ent o ther th a n those
specifically delineated on th e DRI, and w hether voters should be subject
8
to crim inal prosecution re la ted to the DRI, or the appropria te scope of
any affirm ation under penalty of perjury.
P riv a te P lain tiffs have a live case or controversy after SB5 for the
reasons discussed in P a r t III, infra. P riva te P laintiffs also dispute
Texas’s p a rtia l description of th e d istric t court’s O rder on Rem edies as
not providing th e d istric t court’s com plete reasoning for its ruling.
SUMMARY OF ARGUMENT
The d istric t court m eticulously followed the directives of th is Court
on rem and. This Court found th a t several pieces of evidence upon which
th e d istric t court originally relied were infirm , and, recognizing th a t it
w as th e exclusive province of the d istric t court to assess the im pact of
th a t evidence on its original decision, rem anded the issue of in ten tiona l
d iscrim ination to th e d istric t court for th a t purpose, not to rev isit findings
untouched by the infirm evidence. This Court directed th a t th e d istric t
court en te r ta in no new evidence.
In its opinion on rem and, th e d istric t court carefully explained the
ex ten t to w hich the infirm evidence had factored into its orig inal decision
and, afte r rem oving th a t evidence, again concluded th a t SB14 had been
enacted w ith discrim inatory in ten t.
9
Texas’s claim ed legal erro rs in the d istric t court’s decision are
m eritless. There is no indication th a t th e decision on rem and w as based
on any infirm evidence and th e d istric t court specifically disclaim ed th a t
it was relying on any infirm evidence. N othing in th is C ourt’s opinion
directed th e d istric t court to w ithhold decision on in ten tiona l
d iscrim ination un til the leg isla tu re passed a new voter ID law, and any
subsequent legislation (including SB5) cannot erase th e original
d iscrim inatory in ten t behind SB 14. Texas’s argum ent th a t, because a
com parable absolute num ber of w hite and combined Black and Latino
voters w ere burdened by SB14, th e re could not be a Section 2 violation,
has already been rejected by th is Court as waived; raising th e issue for
the first tim e on rem and does not resu sc ita te it. F u rth er, in a racial
d iscrim ination case, it is th e disproportionate im pact on m inority
populations— not the re la tive absolute num bers—th a t is a t issue.
Texas’s challenges to th e d istric t court’s factual determ ination of
in ten tional d iscrim ination am oun t to no th ing more th a n an argum en t
th a t the d istric t court drew different inferences from the record evidence
th an those Texas would prefer. This is not evidence of clear erro r under
10
Rule 52. Additionally, Texas bases its factual challenge on new theories
p resen ted for the firs t tim e on rem and. These argum ents are waived.
The d istric t court’s in junction aga inst SB5 w as w ith in its sound
discretion. I t is w ith in th e d istric t court’s province to determ ine w hether
proposed rem edial legislative action fully cures the discrim inatory
resu lts and in te n t violations. A fter finding Texas liable for in ten tiona l
discrim ination, the d istric t court properly placed the bu rden on Texas to
prove th a t SB5 provides a com plete rem edy. SB5 does not fully cure the
in ten tiona l d iscrim ination violation because it does not elim inate the
in ten tiona l d iscrim ination “root and branch .” Instead , it subjects Black
and Latino Texans to the requ irem ent of th e sam e d iscrim inatory lis t of
photo IDs to vote in person, fails to provide for an adequate educational
program , and subjects those d iscrim inated ag a in st because they lack one
of the stric t photo IDs to a second process to vote by reasonable
im pedim ent affidavit, which carries w ith it the in tim ida ting th re a t of
perjury prosecution.
For sim ilar reasons, th e case is not moot. The passage of SB5 in
2017 did not cure P riva te P lain tiffs’ in ju ries for p as t in ten tiona l
d iscrim ination or resu lts. P riva te P lain tiffs are still en titled to
11
declaratory relief (which has special prophylactic value in race
d iscrim ination cases), com plete v itiation of SB14, and po ten tia l relief
under Section 3(c) of the VRA. To hold th is case moot would m ean th a t
a jurisd iction could escape judicial opprobrium for racial d iscrim ination
sim ply by am ending its law s—even ju s t p artia lly — a fte r being found
liable. The volun tary cessation doctrine does not shield Texas, because
Texas cannot carry th e bu rden of showing th a t it will not rep ea t its
d iscrim inatory conduct. Indeed, Texas enacted SB5 only after several
courts, including th is Court, had held th a t Texas engaged in racial
discrim ination.
ARGUMENT
I. STANDARDS OF REVIEW
The d istric t court’s “[find ings of fact, w hether based on oral or
o ther evidence, m ust not be set aside unless clearly erroneous.” FED. R.
ClV. P. 52(a); see Koch v. U nited S ta tes, 857 F.3d 267, 275-76 (5th Cir.
2017). A finding of fact is clearly erroneous only if “the review ing court
on the en tire evidence is left w ith the definite and firm conviction th a t a
m istake has been com m itted.” U nited S ta te s v. U.S. G ypsum Co., 333
U.S. 364, 395 (1948).
12
The d istric t court’s finding of d iscrim inatory in ten t is a finding of
fact. See R ogers v. Lodge, 458 U.S. 613, 623 (1982); P ullm an-S tandard
v. Sw in t, 456 U.S. 273, 290 (1982); V easey II, 830 F.3d a t 229. If the
d istric t court’s finding of d iscrim inatory in ten t “is plausible in ligh t of the
record viewed in its en tire ty , the court of appeals m ay not reverse it even
though convinced th a t had it been sitting as the tr ie r of fact, it would
have weighed the evidence differently.” A nderson v. C ity o f B essem er
C ity 470 U.S. 564, 573-74 (1985).
This Court reviews the d istric t court’s choice of rem edy for abuse
of discretion. See U nited S ta te s v. Brown, 561 F.3d 420, 435 (5th Cir.
2009); H opwood v. Texas, 236 F.3d 256, 276 (5th Cir. 2000).
This C ourt reviews the d istric t court’s conclusions of law de novo.
S ee F a irley v. H a ttiesb u rg ; M iss., 584 F.3d 660, 675 (5th Cir. 2009).
II. THE DISTRICT COURT’S DISCRIMINATORY INTENT
FINDING SCRUPULOUSLY COMPLIED WITH THIS COURT’S
DIRECTIONS AND SHOULD BE AFFIRMED UNDER RULE 52
In Veasey II, th is C ourt found th a t specific pieces of evidence the
d istric t court cited in reach ing its finding of discrim inatory in ten t were
infirm . B ut th e C ourt concluded th a t, independen t of the infirm evidence,
“the record also contained evidence th a t could support a finding of
13
discrim inatory in ten t.” 830 F.3d a t 234-35. N oting th a t, w hile it could
“sim ply affirm ” the d istric t court’s decision, th is Court in stead rem anded
th e issue to the d istric t court in whose “exclusive province” it lay, to
assess “how m uch th e evidence found infirm weighed in [its] calculus.”
Id. a t 238 n.22, 241. This Court m ade it clear th a t th e d istric t court was
not required to conduct a re tr ia l of th e o ther evidence th a t w as th e basis
for its original finding of in ten t, and th a t its rem and was not an occasion
for subm ission of new evidence or new theories. Id. a t 242 (“[T]he d istric t
court should not take additional evidence.”). The d istric t court
m eticulously followed those directions, despite Texas’s a ttem p t to
in te rjec t new facts and factual theories into th e case.
A fter excluding from consideration th e infirm evidence, th e d istric t
court found th a t the rem ain ing evidence in the record supported its
original finding of in te n t as se t forth in its in itia l 147-page opinion.
Texas’s p rim ary challenge to those findings is th a t the d istric t court
failed to draw the inferences th a t Texas prefers. However, as th is Court
has repeated ly advised, w here “m ultip le inferences could reasonably be
draw n from the record evidence, . . . we m ust leave the draw ing of those
inferences to the d istric t court.” Id. a t 238 n.22. Here, looking a t the
14
to ta lity of th e evidence, th e d istric t court found th a t the com plete mosaic
exposed a discrim inatory motive: a group of legislators, acting against
th e backdrop of a m ajor dem ographic shift in which m inority voters were
gaining political power, steam rolled the m ost strin g en t voter ID bill in
th e country th rough th e Legislature, using an unprecedented
com bination of tactics, all th e w hile justify ing th e ir actions w ith spurious
reasons and knowing th a t th e specific crite ria they carefully d rafted into
law would d ispara tely im pact Black and Latino voters. Rule 52 compels
affirm ance of the d istric t court’s decision.
A. The District Court Did Not Commit Legal Error On Remand
Texas posits a series of quibbles w ith th e d istric t court’s decision on
rem and, which it characterizes as legal error. They can be disposed of
sum m arily.
1. The district court correctly construed this Court’s
decision.
Texas claim s th a t th e d istric t court “erroneously read th is C ourt’s
opinion to hold th a t ‘th e re w as sufficient evidence to su sta in a conclusion
t h a t . . . SB 14[] was passed w ith a d iscrim inatory purpose.’” Tex. Br. a t
68 (quoting ROA.69764). B ut th a t is precisely w hat th is Court held:
“[T]he record also contained evidence th a t could support a finding of
15
discrim inatory in ten t.” V ea sey ll, 830 F.3d a t 234-35. In fact, an express
finding th a t th e re was sufficient record evidence th a t could support the
d istric t court’s original decision (even absen t the infirm evidence) was
essen tia l to th is C ourt’s conclusion under P ullm a n -S ta n d a rd th a t
rem and w as required because the record “does not ‘perm it [] only one
resolu tion of the factual issue .’” Veasey II, 830 F.3d a t 230 (quoting
P ullm an-S tandard , 456 U.S. a t 292).3 Thus, th is Court acknowledged
record support for specific findings a t the h ea rt of the purpose inquiry.
S ee V easey II, 830 F.3d a t 236—41.
3 This C ourt’s ru lings are the law of the case. W hen a court decides a ru le
of law, “th a t decision should continue to govern the sam e issues in
subsequen t stages in th e sam e case.” A rizona v. California, 460 U.S. 605,
618 (1983); M ed. Ctr. P harm acy v. H older, 634 F.3d 830, 834 (5th Cir.
2011). The doctrine extends to findings of fact: “D isturb ing findings from
earlier [stages of] litigation requires more th a n a litig an t’s assertion th a t
the previous findings were ‘ju s t w rong.’” U nited S ta te s v. Thomas, 167
F.3d 299, 307 (6th Cir. 1999); see also A rizona v. California, 460 U.S. a t
619 (refusing to reexam ine factual findings under the “general principles
of finality and repose”). Texas’s argum ent to the contrary, (Tex. Br. a t
68), is based on inapposite au thority . C hapm an v. N A SA , 736 F.2d 238
(5th Cir. 1984), s tands for the unrem arkab le proposition th a t “[a] factual
issue, of course, could become the law of the case, b u t only if previously
appealed and affirm ed as not being clearly erroneous.” Id. a t 242 n.2. In
S ta te Indus., Inc. v. M or-Flo Indus., Inc., 948 F.2d 1573 (Fed. Cir. 1991),
the issue w as w hether th e tr ia l court’s findings of fact th a t had been
vacated on appeal as inadequate were the law of the case. Id. a t 1576-
77.
16
F u rth e r, in affirm ing the d istric t court’s discrim inatory resu lts
finding under th e clear erro r rule, th is C ourt m ade a series of ru lings
which can no longer be questioned by Texas in th is case, including the
history of recen t d iscrim ination in voting, the existence of racially
polarized voting, and, m ost im p o rtan t for purposes of the in te n t claim,
the tenuousness of the ra tiona les provided by SB14’s proponents. See id.
a t 257-64. As th is Court found, “th e provisions of SB 14 fail to correspond
in any m eaningful way to th e leg itim ate in te re s ts the S ta te claim s to
have been advancing th rough SB 14.” Id. a t 263.
2. This Court did not direct the district court to retry all its
prior findings of fact.
Texas argues th a t th is C ourt in stru c ted the d istric t court, on
rem and, to reconsider in ten tiona l d iscrim ination on a b lank slate. Tex.
Br. a t 22—23. B ut th is is not true . This Court rem anded the
discrim inatory in te n t claim to the d istric t court because it found some
fau lt in th e d is tric t court’s orig inal reasoning, and w anted to ensu re th a t
the d istric t court’s conclusion w as not infected by those fau lts .4 This
4 Specifically, th is Court ru led th a t th e d istric t court should not have
relied on evidence of state-sponsored discrim ination “dating back
hundreds of years ,” evidence of “reprehensib le actions” in a single county,
“post-enactm ent speculation by opponents,” and “stray s ta tem en ts m ade
17
Court did not in stru c t th e d istric t court to reassess th e in ten tiona l
d iscrim ination claim from scratch. To th e contrary , the issue on rem and
was limited^ th is Court in stru c ted the d istric t court to assess “how m uch
the evidence found infirm w eighed in th e d istric t court’s calculus.”
V easey II, 830 F.3d a t 241. This Court directed the d istric t court “to
re weigh th e factors” w ithout th e infirm evidence and w ithou t “tak[ing]
additional evidence” and potentially even w ithout “en tertain[ing]
additional oral argum en t.” Id. a t 235, 242. If a finding of fact m ade by
th is Court did not im plicate infirm evidence, the re was no basis for the
d istric t court to revisit, le t alone change, it.
3. The district court followed this Court’s instructions.
In its opinion, the d istric t court carefully analyzed each category of
evidence, indicated w ith precision w hether the infirm evidence factored
into its decision-m aking, and th en rew eighed the evidence, as a whole,
exclusive of the infirm evidence. S ee ROA.69764—73. In th is context,
Texas’s dism issive description of the d istric t court’s opinion on rem and
as “cursory,” (Tex. Br. a t 18, 67), is inaccurate and insulting. The d istric t
by a few individual legislators voting for SB 14.” Veasey II, 830 F.3d at
231-34. This Court also lim ited th e re la tive w eight of B ush v. Vera and
L U L A C v. Perry. Id. a t 232-33.
18
court spen t m onths scouring the record afte r th e two-week tr ia l in 2014.
Moreover, the d istric t court, on its own in itia tive, perm itted th e parties
to subm it extensive findings of fact and conclusions of law and briefs on
rem and, held oral argum ent, and issued an opinion over four m onths
after the filing of the last w ritten subm ission, and six w eeks after oral
argum ent. In th a t opinion, the d istric t court incorporated v irtua lly all of
its previous 147-page opinion, carefully noting, however, w here it w as not
now assigning weight to any evidence th is C ourt had deem ed “infirm ,”
and explaining th a t such evidence did not im pact its u ltim ate findings.5
Accordingly, it reevaluated th e rem ain ing evidence, as th is Court
5 The d istric t court specified th a t it assigned no w eight to anecdotal
evidence re la tin g to racial appeals in political cam paigns, (ROA.69767);
th a t its reference to older h istory of Texas’s d iscrim inatory practices “was
for context only,” and it was not assigning “d is tan t h isto ry any w eight in
th e d iscrim inatory purpose analysis,” (ROA.69768—69); th a t it w as not
relying on W aller County officials’ efforts to suppress m inority votes and
the red istric ting cases, (ROA.69770); and th a t it w as not assigning any
w eight to evidence offered regard ing leg islator observations of the
political and legislative environm ent a t th e tim e SB14 was passed, except
for a s ta tem en t by Senator F raser, upon w hich th is C ourt itse lf had
relied, (ROA.69772).
19
instructed , and determ ined anew th a t the L egislature acted w ith a
d iscrim inatory purpose.
Texas claim s th a t th e d istric t court incorporated infirm evidence in
its opinion, because it “adopted its reasoning from P a r t IV(A) of its
original ru ling ,” “p a r t” of which relied on the expert report of Dr. A lan
L ichtm an, who, “in tu rn , relied” on some infirm evidence, and th a t P a r t
IV(A) also relied on s ta tem en ts by SB14’s opponents. Tex. Br. a t 69.
Texas purposefully m isreads the distric t court’s opinion. The d istric t
court carefully described th e extent to which it was reaffirm ing the
findings in P a r t IV(A) of its prior opinion, and never incorporated all of
P a r t IV(A). ROA.69771-72 (incorporating P a r t IV(A)’s findings
regard ing departu res from norm al practices; P a r t IV(A)(4)’s findings
regard ing the lack of consistency of legislative decisions w ith th e S ta te ’s
alleged in te re s t in p reven ting voter fraud; P a r t IVA(6)’s findings
regard ing th e p re tex tu a l justifications for SB14; and P a r t IVA(3)’s
finding regard ing th e questionable fiscal note a ttached to SB14). All of
these incorporated findings, as noted by the d istric t court, were discussed
w ith approval by th is Court. The d istric t court specifically said th a t it
w as giving “no w eight” w hatsoever to evidence of contem poraneous
20
s ta tem en ts of legislators deem ed infirm by th is Court. ROA.69772.
N othing about th e d istric t court’s decision on rem and is based on any
infirm evidence.
4. Discriminatory intent need be only one purpose of the
action and judicial deference to the Legislature is not
due.
Texas also m issta tes th e appropriate s tan d ard s of proof applicable
to in ten tio n a l d iscrim ination cases. F irst, it posits th a t “P laintiffs have
th e dem anding burden to show th a t some desire by th e Texas L egislature
to h arm individuals because of th e ir race w as a ‘but-for’ m otivation for
the enactm en t of the SB14 voterTD law .” Tex. Br. a t 64 (in ternal
quotations and citations om itted). T hat is not th e law. As th is Court
recognized, ‘“[rjacial d iscrim ination need only be one purpose, and not
even a p rim ary purpose’ of an official action for a violation to occur.”
V ea sey ll, 830 F.3d a t 230 (quoting U nited S ta te s v. Brown, 561 F.3d 420,
433 (5th Cir. 2009)) (em phasis added). Any additional purpose “would
not ren d er nugatory the purpose to d iscrim inate.” H u n ter v. Underwood,
471 U.S. 222, 232 (1985). Once a d iscrim inatory purpose is shown, “the
21
burden shifts to the law ’s defenders to dem onstrate th a t the law would
have been enacted w ithout th is factor.” Id. a t 228.6
Next, Texas argues th a t th e d istric t court erred by not applying “a
heavy presum ption of constitu tionality and good fa ith ,” and not resolving
all doubts in favor of Texas. Tex. Br. a t 65, 69—71. Texas’s arg u m en t is
m erely a reform ulation of its prior argum en t—already rejected by th is
Court—th a t a heightened “clearest p roof’ s tan d ard should replace the
A rling ton H eigh ts s tandard . V easey II, 830 F.3d a t 230 n.12. Legislative
deference is not appropria te in cases of discrim inatory in ten t. As the
Suprem e Court has observed, “[wjhen th e re is a proof th a t a
d iscrim inatory purpose has been a m otivating factor in the decision . . .
6 Texas cites E asley v. C rom artie, 532 U.S. 234 (2001), and M iller v.
Johnson, 515 U.S. 900 (1977), in support of its argum ents th a t plaintiffs
in in ten tiona l d iscrim ination cases are held to s tan d ard s m uch stric te r
th a n th a t in the controlling case of Vill. o f A rling ton H eig h ts v. M etro.
Hous. Dev. Corp., 429 U.S. 252 (1977). See Tex. Br. a t 64—65, 69, 73.
C rom artie and M iller are racia l gerrym andering cases, w here plaintiffs
have the analytically d istinct bu rden of proving th a t race is the
predom inant m otivating factor underly ing a red istric ting decision, unlike
in o ther in ten tiona l d iscrim ination cases. Com pare Cooper v. H arris, 137
S. Ct 1455, 1479 (2017) (describing burden of proof in racial
gerrym andering cases) w ith A rling ton H eights, 429 U.S. a t 264—68
(describing burden of proof in challenges to invidious racial
d iscrim ination).
22
judicial deference [to th e legislature] is no longer justified .” A rling ton
H eights, 429 U.S. a t 265-66 .7
7 Texas quotes M iller for th e proposition th a t “good faith of a s ta te
leg isla tu re m ust be presum ed,” (Tex. Br. a t 65), bu t om its th e preceding
clause, w hich m akes clear th a t th e presum ption applies only “u n til a
c la im ant m akes a showing sufficient to support [an] allegation” of “race-
based decisionm aking.” M iller, 515 U.S. a t 915. In M cC leskey v. K em p,
481 U.S. 279 (1987), the language excerpted by Texas w as p a r t of the
u n su rp ris in g principle th a t a court would “not infer a d iscrim inatory
purpose” w ithout evidence. Id. a t 298-99. Texas’s o ther au th o rities are
not in ten tiona l racial d iscrim ination cases. S ee D ep’t o f L abor v. Triplett,
494 U.S. 715 (1990) (alleging Due Process claims); D avis v. D ep ’t o f Labor
& Indus, o f Wash., 317 U.S. 249 (1942) (challenging constitu tionality of
s ta te w orker’s com pensation s ta tu te under A rticle III, Section 2); U nited
S ta te s v. Chem. Found., 272 U.S. 1 (1926) (alleging fraud-rela ted claims);
S u n d a y L a ke Iron Co. v. W akefield Twp., 247 U.S. 350 (1918) (alleging
Equal P rotection claim s based on property valuations).
A lthough Texas argues th a t, “[t]he presum ption applies ju s t as strongly
to voting and election laws as to o ther legislative enactm ents,” (Tex. Br.
a t 70), none of the cases it cites s tands for th a t proposition. In C ity o f
M obile, A la. v. Bolden, 446 U.S. 55 (1980), the discussion w as not about
a p resum ption of constitu tionality , bu t ra th e r about w hether ordering
proportional rep resen ta tion would tu rn the Court into a “su p e r
leg isla tu re .” Id. a t 76-77. M cD onald v. Bd. o f E lection C om m ’rs, 394
U.S. 802 (1969), dealt w ith the ability of p re-tria l detainees to vote, and
the Court expressly s ta ted it was discussing the presum ption outside of
the rig h t to vote claim. Id. a t 809. In K ram er v. Union F ree Sch. D ist.
No. 15, 395 U.S. 621, th e case which Texas cites as the “exception th a t
proves the ru le ,” (Tex. Br. a t 70), the Court not only ru led th a t “the
deference usually given to the judgm ent of legislators does not extend to
decisions concerning which residen t citizens may p a rtic ip a te” in
elections, b u t also em phasized th a t “if the basis of classification is
inheren tly suspect, such as race, the s ta tu te m ust be subjected to an
exacting scru tiny regard less of the subject m a tte r of the legislation.”
K ram er, 395 U.S. a t 627, 628 n.9. A lthough th e Court w as ta lk in g about
23
5. The district court was not required to await legislative
action before rendering its opinion on discriminatory
intent.
Texas com plains th a t th e d istric t court failed to account for the
pending bill th a t becam e SB5 before issu ing its decision on the in ten t
behind SB 14. Tex. Br. a t 66—67. N othing in th is C ourt’s opinion directed
the d istric t court to aw ait legislative action before rew eighing its
d iscrim inatory purpose finding. Indeed, the Court ordered th a t “the
d istric t court should not tak e additional evidence” and should “m ake its
d iscrim inatory purpose findings based on the record we have.” Veasey
II, 830 F.3d a t 242.* 8
th e facial valid ity of the s ta tu te s in question, its ra tionale b u ttresses the
case law cited above th a t th e re is no deference due th e leg isla tu re w hen
th e re is evidence of in ten tiona l racial discrim ination.
8 Texas tak es out of context a single sentence from th is C ourt’s discussion
of “in te rim re lie f’ th a t th e court w as “‘to reexam ine the discrim inatory
purpose claim in accordance w ith the proper legal s tan d ard s we have
described, bearing in m in d th e e ffec t a n y in te rim leg isla tive action taken
w ith respect to S B 14 m a y have. ’” Tex. Br. a t 66 (quoting Veasey II, 830
F.3d a t 272). The m ost reasonable reading, w hen tak ing th is C ourt’s
opinion as a whole, is th a t th e d istric t court was in struc ted to keep in
m ind the “effect [of] any in terim legislative action” a t the rem edy phase,
which the d istric t court did. See supra a t P a r t III.B. However, even if
m ean t to apply to th e SB14 d iscrim inatory purpose claim, th a t sentence
does not d irect th e d istric t court to stay its hand on determ in ing in ten t.
24
In support of its position, Texas argues th a t subsequent acts by one
accused of d iscrim ination m ay be re levan t to in ten t. Tex. Br. a t 66.
W hile in some cases, subsequen t acts by an individual m ay be probative
of th a t person’s prior in ten t, th a t theory has no place in th is case.9 The
issue here is w hether the 2011 L eg isla tu re passed SB14 w ith
discrim inatory in ten t. T h at six years la ter, a different leg isla tu re w ith
different leg islators m ight pass a less onerous law in response to a court
finding th a t th e prior law w as discrim inatory, has no bearing on the
in ten t behind th e orig inal law. See H unter, 471 U.S. a t 232-33 (declining
to take into account la te r am eliorative changes to a d iscrim inatory law
w hen deciding w hether the law a t issue w as passed w ith a d iscrim inatory
in tent). Even outside th e realm of d iscrim ination cases, th e Suprem e
Court has w arned th a t “th e views of a subsequen t [legislature] form a
hazardous basis for in ferring the in ten t of an earlier one.” C onsum er
Prod. S a fe ty C om m ’n v. G TE Sylvania , Inc., 447 U.S. 102, 117 (1980)
9 Texas’s only support for th is proposition is th e stark ly different case of
A n se ll v. G reen A cres C ontracting Co., 347 F.3d 515 (3rd Cir. 2003).
A n se ll is an age d iscrim ination case w here the court sim ply found th a t
evidence of an em ployer’s favorable tre a tm e n t of an over-45 year old
employee w as probative of the em ployer’s in te n t w hen it previously fired
the plaintiff, allegedly as p a r t of a b roader p lan to e lim inate older
w orkers. Id. a t 524. A n se ll h as no relevance here.
25
(in ternal quotations om itted). Common sense dictates th a t th e in te n t of
one legislative body cannot be changed a fte r th e fact by the acts of a la te r
legislative body.
6. Texas’s claim that SB14’s spillover effects on some white
voters defeat Plaintiffs’ discriminatory purpose claim
has been waived and is frivolous.
Texas incorrectly argues th a t “any perm issible inference of
discrim inatory in te n t” is foreclosed as a m a tte r of law because the
num ber of w hite voters burdened by SB14 is com parable to th e num ber
of Black and Latino voters combined. Tex. Br. a t 71-73. This Court
already rejected th is argum en t because it w as m ade for th e firs t tim e on
appeal, Veasey II, 830 F.3d a t 252 n.45, and th a t ra tiona le still controls.
See U nited S ta te s v. Osamor, 271 Fed. A pp’x 409, 410 (5th Cir. 2008)
(argum ents raised for the firs t tim e afte r rem and th a t could have been
raised in firs t appeal are “deem ed abandoned”); B rooks v. U nited S ta tes,
757 F.2d 734, 739 (5th Cir. 1985) (deem ing argum en t not “briefed and
discussed” in earlier appeal “to have been w aived”). Texas claim s th a t it
“did raise th is purpose-based arg u m en t below,” b u t its citation is to its
proposed findings of fact and conclusions of law on rem and, not to its
26
original proposed findings of fact and conclusions of law. Tex. Br. a t 71
n.15 (citing ROA.68915-16).
Even had Texas not waived the issue, th e argum ent is frivolous, as
th is Court recognized in dicturm “Courts have never requ ired th e gross
num ber of affected m inority voters to exceed th e gross num ber of affected
Anglo vo ters.” Veasey II, 830 F.3d a t 252 n.45. D iscrim inatory im pact is
a m easure of “racially d isproportionate im pact.” A rling ton H eights, 429
U.S. a t 264-65. Ju risd ic tions m ay not justify the d isproportionate
d isenfranchisem ent of m inority voters on the basis th a t they are
d isenfranchising an equal num ber—but a far lesser sh are—of m ajority
voters as well. S ee H unter, 471 U.S. a t 230—31 (rejecting th e defense th a t
a law was in tended “to disenfranchise poor w hites as well as blacks”);
W illiam s v. C ity o f D othan, 818 F.2d 755, 764 ( l l t h Cir. 1987) (“W hen
considering d ispara te effect th e focus should not be on absolute num bers
bu t ra th e r on w hether the challenged requ irem en ts operate to disqualify
Negroes a t a su bstan tia lly h igher ra te th a n w hite[s].” (in ternal
quotations om itted)).10
10 None of th e cases cited by Texas, (Tex. Br. a t 72), deal w ith w hether
im pact on w hite individuals is a b a r to an in ten t claim. U nited S ta te s v.
Texas, 457 F.3d 472 (5th Cir. 2006), does not m ention th e issue, bu t
27
B. The District Court’s Findings Of Fact On Intentional
Discrimination Are Not Clearly Erroneous
Proper application of F ederal Rule of Civil P rocedure 52 m andates
affirm ance of the d istric t court’s finding th a t SB 14 was enacted, a t least
in part, w ith d iscrim inatory in ten t.
1. Discriminatory intent is an issue of fact.
Rule 52 provides th a t “[f]indings of fact . . . m ust not be set aside
unless clearly erroneous” and “due regard” m ust be given “to th e tr ia l
court’s opportun ity to judge th e w itnesses’ credibility.” FED. R. ClV. P.
52(a)(6). This Court stric tly applies th a t rule, even w here th e Court “‘is
convinced th a t it would have decided the case differently .’” M a tte r o f
C om plaint o f L u h r Bros., Inc., 157 F.3d 333, 337—38 (5th Cir. 1998)
sim ply s ta tes th a t “bare num erical requ irem en ts” are insufficient to
support an in te n t finding. Id. a t 483. Nowhere in Doe ex rel. Doe v.
L ow er M erion Sch. D ist., 665 F.3d 524 (3d Cir. 2011), w here both w hite
and Black studen ts w ere im pacted by a red istric ting and school
assignm ent plan, does th e court suggest th a t equality of burden
forecloses a discrim inatory in te n t claim. See also U nited S ta te s v.
G regory-Portland Indep. Sch. D ist., 654 F.2d 989, 1004-05 (5th Cir. U nit
A Aug. 1981) (construing s tray sta tem en t about s tu d en ts not using air
conditioning a t home as not necessarily referring to M exican-Am erican
s tu d en ts w hen over 20% of s tu d en ts were white); R ichardson v. C ity and
C ounty o f H onolulu, 124 F.3d 1150, 1163 (9th Cir. 1997) (observing th a t
only evidence of in ten t before d istric t court was th a t ordinance would
harm in te rests of N ative H aw aiians).
28
(quoting A nderson, 470 U.S. a t 573). A dditionally, th is Court pays
strong deference to a d istric t court’s weighing of expert testim ony.
B u rszta jn v. U nited S ta tes, 367 F.3d 485, 489 (5th Cir. 2004). “W here
the re are two perm issible views of the evidence, th e factfinder’s choice
betw een them cannot be clearly erroneous.” A nderson, 470 U.S. a t 5745
accord Koch, 857 F.3d a t 275-76.
These s tan d ard s apply w ith p a rticu la r force here. F irst,
d iscrim inatory in te n t is a pu re question of fact. S ee Rogers, 458 U.S. a t
623; P ullm an-Standard, 456 U.S. a t 290. Second, the tr ia l judge’s fact
findings were based, a t crucial junctu res, on h e r w eighing of credibility,
specifically on h er acceptance of the live testim ony of 16 expert
w itnesses and 30 fact w itnesses p resen ted by plaintiffs and h er rejection
of the single expert p resen ted live by Texas as “unconvincing,” and his
testim ony en titled to “little w eight.” Veasey v. Perry, 71 F. Supp. 3d
627, 663 (S.D. Tex. 2014) (“V easey’). On th a t basis, the tr ia l judge
issued a detailed, fact-laden, record-supported 147-page opinion. And
th e tr ia l judge has now rew eighed th e evidence, as per th is C ourt’s
instructions. Rule 52 m andates acceptance of the tr ia l court’s findings,
and affirm ance of its judgm ent.
29
2. The district court properly applied the Arlington
H eights factors.
A rling ton H eigh ts controls the inqu iry into w hether SB 14 was
enacted “a t least in p a rt ‘because of,’ not m erely ‘in spite of,’ its adverse
effects upon [Blacks and Latinos].” Pers. A d m ’r o f M ass. v. Feeney, 442
U.S. 256, 279 (1979). Recognizing th a t discrim inatory m otive m ay hide
behind legislation th a t “appears n eu tra l on its face,” A rling ton H eigh ts
“dem ands a sensitive inquiry into such c ircum stan tia l and direct
evidence of in te n t as m ay be available.” 429 U.S. a t 266.
In u n d ertak in g th is inquiry, the d istric t court viewed “the to ta lity
of legislative actions” before it, Feeney, 442 U.S. a t 280, including the
S enate Factors set forth in S enate Report No. 97-417, which “supply a
source of c ircum stan tia l evidence regard ing discrim inatory in te n t,”
Brown, 561 F.3d a t 433. Evidence of in te n t th a t m ay be inconclusive
stand ing alone can be more th a n sufficient w hen viewed as p a r t of the
to ta lity of th e evidence. See C oggeshall v. U nited S ta tes, 69 U.S. 383,
401 (1864) (“C ircum stances a ltogether inconclusive, if separate ly
considered, may, [by] th e ir num ber and jo in t operation, especially w hen
corroborated by m oral coincidences, be sufficient to constitu te
30
conclusive proof.”)! U nited S ta te s v. Vargas-Ocampo, 747 F.3d 299, 303
(5th Cir. 2014) (same).
i. SB14 d ispara te lv im pacted Black and Latino
voters.
“[A]n im portan t s ta rtin g point” in th e d iscrim inatory in te n t inquiry
is w hether SB14 “‘bears more heavily”’ on m inority voters th a n Anglo
voters. A rling ton H eights, 429 U.S. a t 266 (in ternal quotations om itted).
The d istric t court correctly found am ple evidence of d ispara te im pact on
m inorities, a ttrib u tab le both to m inority vo ters’ d isproportionate lack of
SB14 IDs and to d isproportionate burdens preventing m inority voters
from obtain ing such IDs. Veasey, 71 F. Supp. 3d a t 659-77. This Court
specifically affirm ed th a t finding, V easey II, 830 F.3d a t 264—65, which
Texas does not—and cannot—challenge on appeal.
ii. Seism ic dem ographic changes coupled w ith
racially polarized voting, led to SB14.
“The specific sequence of events leading up to the challenged
decision also m ay shed some ligh t” on th e purpose behind legislation.
A rling ton H eights, 429 U.S. a t 267. SB14 w as passed during a d ram atic
dem ographic shift in Texas, powered by a growing citizen voting-age
Latino population. W ithin m onths of Texas becoming a m ajority-
m inority s ta te in 2004, the firs t photo voter ID bill, HB 1706, was
31
in troduced in th e L egislature. ROA.92245—46; ROA.92296. Over the
next several years, th e L eg isla tu re repeatedly a ttem pted to pass sim ilar
legislation, cu lm inating in th e successful passage of SB14. ROA.92245-
64.
This Court confirm ed th a t the re was record evidence th a t SB 14
w as passed “in th e w ake of a ‘seismic dem ographic sh ift,’ as m inority
populations rapid ly increased in Texas, such th a t . . . th e party
cu rren tly in power [was] ‘facing a declining voter base and [could] gain
p a rtisan advan tage’ th rough a stric t voter ID law ” and th a t evidence
could support a finding of d iscrim inatory in ten t. V easey II, 830 F.3d a t
241 (quoting V easey 71 F. Supp. 3d a t 700). As th is Court recognized,
racia l d iscrim ination as th e m eans to a p a rtisan end is no less unlaw ful
th a n racia l d iscrim ination for its own sake. V easey II, 830 F.3d a t 241
n.30; L U L A C v. Perry, 548 U.S. 399, 440 (2006) (holding th a t Texas
L eg isla tu re’s exclusion of some Latino voters from red raw n d istric t
because they w ere likely to vote against incum bent bore “th e m ark of
in ten tio n a l d iscrim ination”); N.C. S ta te C onference o f N A A C P v.
M cCrory, 831 F.3d 204, 233 (4th Cir. 2016), cert, denied, 137 S. Ct. 1399
(2017) (“[T]he G eneral A ssem bly used SL 2013-381 to en trench itself.
32
I t did so by ta rge ting voters who, based on race, were unlikely to vote
for the m ajority party . Even if done for p a rtisan ends, th a t constitu ted
racial discrim ination.”).
Texas erroneously calls th e d istric t court’s finding th a t the
dem ographic shift m otivated SB14 “pure speculation.” Tex. Br. a t 89.
This Court, however, recognized th e record evidence th a t political leaders
in Texas have a long and consistent h isto ry of using racially
discrim inatory voting schem es to m ain ta in power, regard less of the party
in power. Veasey II, 830 F.3d a t 241 n.30 (quoting P lain tiffs’ expert Dr.
Vernon B urton’s testim ony th a t “every tim e th a t A frican-Am ericans have
. . . been perceived to be increasing th e ir ability to vote and partic ipate in
the process the re has been S ta te legislation to e ith e r deny them the vote
or a t least d ilu te the vote or m ake it m uch more difficult for them to
partic ipate on an equal basis as W hites in . . . Texas”).
A fter th e 2010 census, th e sam e leg isla tu re th a t passed SB 14 was
tasked w ith redistric ting , which, for a covered jurisd ic tion like Texas,
necessarily involved th e L eg isla tu re’s detailed analysis and, therefore,
knowledge of m inority population growth and candidate preferences.
ROA.92244-45; see also P erez v. Texas, 891 F. Supp. 2d 808, 812-13
33
(W.D. Tex. 2012). Thus, th e legislative leadersh ip th a t ram m ed SB14
through to passage was fully aw are of th e disproportionate and rapid
growth of th e Latino and Black Texan populations (as com pared to the
Anglo population) and the existence of racially polarized voting, and the
consequential th re a t to th e ir power. M oreover, the existence of racially
polarized voting in Texas is th e law of the case. I t w as not contested by
Texas before the d istric t court, and was confirm ed under Rule 52 by th is
Court. V easey II, 830 F.3d a t 258.
Because Latino and Black voters overw helm ingly supported
candidates who did not belong to the p a rty in power, it w as a fair
inference for th e d istric t court to conclude th a t the m ajority p a rty had a
strong m otivation—m ain ta in ing its own political power—to erect
b a rrie rs to voting for eligible L atino and Black voters. S ee M cCrory, 831
F.3d a t 214 (“[Pjolarization renders m inority voters uniquely vulnerab le
to the inevitable tendency of elected officials to en trench them selves by
ta rg e tin g groups unlikely to vote for th em .”); Brow n, 561 F.3d a t 434
C‘[T]he racial polarization of elections in Noxubee County ind icates th a t
the goal of placing more black candidates in elected positions m ay be
34
accom plished by obtaining additional black votes and inva lida ting w hite
votes.”).
iii. The L egislature knew of th e probable d ispara te
im pact of SB14.
In assessing in ten t, courts also consider an tic ipated im pact, or the
“norm al inferences to be draw n from th e foreseeability” of policym akers’
actions. Brown, 561 F.3d a t 433 (in ternal quotations om itted); see also
C olum bus Bd. o f Educ. v. Penick, 443 U.S. 449, 464 (1979) (“[Alctions
having foreseeable and an ticipated d ispara te im pact are relevan t
evidence to prove the u ltim ate fact, forbidden purpose.”). As th is Court
has already recognized, the re was record evidence to support th e d istric t
court’s finding th a t Texas law m akers knew th a t SB14 w as likely to have
a d iscrim inatory im pact on the righ ts of m inority vo te rs: “The record
shows th a t d rafters and proponents of SB 14 w ere aw are of th e likely
disproportionate effect of the law on m inorities . . . .” V easey II, 830 F.3d
a t 236; see also Id. a t 261—62 (“The evidence supports the d istric t court’s
finding th a t ‘the leg islature knew th a t m inorities would be m ost affected
by th e voter ID law .’” (quoting Veasey, 71 F. Supp. 3d a t 657-58)).
D espite th is C ourt’s clear ru ling to th e contrary , Texas argues
th a t “[a]ll of the probative evidence” before the L eg islatu re suggested
35
th a t SB14 would not have a d ispara te im pact and th a t th e re w as no
contrary evidence before th e L egislature w hen it considered SB14. Tex.
Br. a t 83. This is un tru e . In response to every photo ID law proposed
in Texas since 2005, m em bers of the public and legislators rep resen ting
d istric ts w ith significant num bers of m inority constituen ts testified
contem poraneously w ith debate on those bills th a t the legislation as
w ritten would severely bu rd en m any Latino and Black Texan voters.
ROA.68634—36. D uring th e debate on SB14, the L egislature heard
testim ony th a t Black voters are th ree tim es as likely as Anglos to lack
th e required photo ID; th a t m inority voters face up to 150-mile trip s to
th e n earest D epartm en t of Public Safety (“D PS”) office because there
are m any Texas counties w ith no or only part-tim e DPS offices; th a t
the re are long w ait tim es in m any busy u rb an DPS locations; and th a t
m inority voters would face p articu la r difficulties if forced to trave l to a
county office w ith in th e six-day cure period for votes cast w ithout the
required ID. Id. L egislators ra ising these serious concerns received
only non-responsive answ ers from bill proponents. As th is Court noted,
“[w]hen o ther legislators asked S enator F ra se r questions about the
possible d isp ara te im pact of SB 14, he sim ply replied ‘I am not
36
advised.”’ V easey II, 830 F.3d a t 237 (in te rna l quotations om itted).
M oreover, B ryan H ebert, the L ieu tenan t Governor’s counsel, expressed
concern to S enator F ra se r’s chief of staff th a t SB 14 would not be
approved under the VRA because of its probable d ispara te im pact,
(ROA.87099-100), an event specifically cited by th is Court as evidence
of d iscrim inatory in ten t. V easey II, 830 F.3d a t 236 n.21. Senator
Estes, ano ther of SB14’s proponents, expressed a sim ilar concern.
ROA.86850.11
D espite th is knowledge, the L egislature m ade a series of choices to
accept only a lim ited num ber of photo IDs, each of w hich was less likely
to be held by Black and Latino voters and more likely to be held by Anglo
voters in Texas; and to reject a large num ber of photo IDs, such as
governm ent employee and public college stu d en t IDs, each of which was
11 Texas cites to s ta tem en ts by plain tiffs’ experts, tak en out of context,
supposedly show ing th a t the d ispara te effect of SB 14 w as not “obvious”
to legislators. Tex. Br. a t 85. None of these excerpts have any th ing to do
w ith photo ID possession ra tes . R ather, as is the case w ith the “m ultiple
studies and th e experiences of o ther S ta tes ,” (id.), each of the s ta tem en ts
concerns w hether and to w hat ex ten t photo ID laws in o ther sta tes
affected voter turnout. S ee ROA.42980; ROA.72556—59; ROA.73152—53.
This Court has already ru led th a t evidence of decreased tu rn o u t “is not
required to prove a Section 2 claim of vote denial or abridgem ent.”
V easey II, 830 F.3d a t 261.
37
more likely to be held by Black and Latino voters th a n by Anglo voters in
Texas. ROA.68664-69. M oreover, d a ta regard ing these d ispara te ra te s
of ID possession were publicly available a t the tim e the L egislature
considered SB14. ROA.72673-81. Dr. L ich tm an’s report contained
num erous tab les showing th e p articu la r s ta tis tics and the public sources
of the d a ta from which those sta tis tics w ere draw n, including Census
reports and reports from Texas s ta te agencies like the DPS (handgun
possession d a ta by race) and the Texas H igher Education C oordinating
Board (studen t enrollm ent d a ta by race and ethnicity). ROA.92992;
ROA.92999. The notion th a t th e L eg islatu re w as not “aw are” of these
d a ta cannot be seriously credited. L aw m akers m ay be presum ed to be
fam iliar w ith th e dem ographics and socioeconomics of th e ir s ta te . See
S h a w v. Reno, 509 U.S. 630, 646 (1993) (“[T]he leg isla ture alw ays is
aw are of race w hen it draw s d istric t lines, ju s t as it is aw are of age,
economic s ta tu s, religious and political persuasion , and a varie ty of o ther
dem ographic factors.”).
R epresentative Todd Sm ith, C hairm an of the Texas House
Elections Com m ittee and a m ajor supporter of stric t photo ID laws,
including SB14, la te r called it “common sense” th a t m inority voters
38
would be d isproportionately harm ed by a stric t photo ID bill. Veasey II,
830 F.3d a t 236 & n.21, 262. W illful avoidance of inconvenient
inform ation does not preclude knowledge of such facts, particu larly w hen
they are a m a tte r of “common sense.” S ee U nited S ta te s v. S ch a ffer , 600
F.2d 1120, 1122 (5th Cir. 1979) (“[D]eliberate ignorance is th e equivalent
of know ledge.”). Texas cannot now disclaim the L eg isla tu re’s advance
knowledge of SB14’s d isp a ra te im pact sim ply because bill proponents
sought to avoid p u tting available evidence into the record of w hat the
leg islators already knew to be true.
D espite th is knowledge of likely d isp ara te im pact, th e legislators
designed SB14 to be not m erely “not like o ther photo-voter-ID law s,” (Tex.
Br. a t 94), b u t the stric test in the country. I t w as much s tric te r th a n
those of G eorgia and Ind iana , upon which it supposedly w as modeled,
and m uch s tr ic te r th a n prior versions the L egislature considered in 2005,
2007, and 2009. V easey II, 830 F.3d a t 263; ROA.92986-87; RO A .93004-
09. Its d ra fte rs could not explain why. ROA.30926—28; ROA.30967—68;
ROA.30995.
39
iv. The L eg islatu re justified the bill w ith pretex t.
As th is Court explained, the d istric t court’s finding th a t the
L eg isla tu re’s ‘“sta ted policies behind SB 14 are only tenuously re la ted to
its provisions’” was supported by evidence th a t “the provisions of SB 14
fail to correspond in any m eaningful way to the leg itim ate in te re s ts the
S ta te claim s to have been advancing th rough SB 14.” V ea sey ll, 830 F.3d
a t 263 (in ternal quotations om itted). C iting th e d istric t court’s findings,
th is Court held th a t evidence of th e “m any ra tionales [that] w ere given
for a voter identification law, w hich shifted as they were challenged or
disproven by opponents,” is probative of th e question of w hether the
L egislature had a d iscrim inatory purpose in enacting SB14. Id. a t 240-
41.12
The principal legislative purpose asserted by SB14’s proponents
w as protection aga inst voter fraud. ROA.86887; ROA. 102423. The
12 Texas b ristles a t the word “sh ifting” to describe the different ra tionales
used by SB14 proponents, a rgu ing th a t they sta ted different reasons
sim ultaneously . Tex. Br. a t 95. B ut the evidence did show shifting and
p re tex tu a l rationales. For exam ple, during the 2011 session, the
L ieu ten an t G overnor’s office w as coaching the proponents about how to
describe the purpose behind SB 14-even in stru c tin g Senators to no longer
rely on the previously s ta ted ra tiona le th a t SB14 was in tended to reduce
non-citizen voting. ROA.86868.
40
undispu ted record shows th a t in-person voter im personation, the only
sort of fraud th a t SB 14 could possibly p reven t is exceedingly ra re both in
Texas and generally. V easey II, 830 F.3d a t 238. In the ten years before
SB 14, th e re were only two credible claim s of voter im personation fraud
in Texas out of more th a n 20 m illion votes cast. Id.
A fter more th a n four years litigating th is case, Texas h as finally
given up th e p re tex t of any discernible am ount of in-person voter fraud
in the sta te . I t does not even debate the issue in its b rief.13 It argues
only th a t the d istric t court should have given th e benefit of th e doubt to
the proponents of SB14, w hen they said they believed th a t SB14 would
reduce in-person voter fraud, even though th e re w as no evidence before
them of its ac tual existence, and ab u n d an t evidence before them of its
non-existence. Tex. Br. a t 95.14 As th is Court advised, the d istric t court
13 Texas cites w ithout exp lanation to an Advisory it filed on th e subject,
together w ith some D O J frau d files. Tex. Br. a t 91 (citing ROA.69416-
19; ROA. 118623-35). N othing in those docum ents refu tes th e testim ony
of Texas’s own head of voter fraud enforcem ent, Lt. Forest M itchell, who
testified th a t th e re w ere only two instances of such fraud in ten years,
testim ony th a t was corroborated by plain tiffs’ experts M innite and Wood.
ROA.72127-28; ROA.73125-26; ROA.73160-62. Texas provided the
court w ith no analysis of th e D O J data , and th e re s t of its subm ission
focuses on anecdotal hearsay .
14 To the ex ten t th a t Texas argues th a t C raw ford v. M arion County, 553
U.S. 181 (2008), provides it w ith justification to deal w ith voter fraud
41
need not “sim ply accept th a t legislators w ere really so concerned w ith
th is alm ost nonexistent problem ” of in-person voter im personation.
V easey II, 830 F.3d a t 239.15
Texas also does not try to justify SB14’s p roponents’ claim s th a t the
bill would p revent noncitizen persons from voting, as th e re w as scant
evidence of noncitizen voting in Texas. Moreover, a t least d river’s
licenses and concealed handgun licenses, “two forms of identification
approved under SB 14[,] are available to noncitizens.” Id. a t 241. Even
the legislator who gave the House closing speech la te r conceded under
oath th a t noncitizen voting is ne ither a significant problem nor addressed
by SB14. ROA.68642.
prophylactically, (Tex. Br. a t 94), th a t a rgum en t has been rejected by th is
Court. Veasey II, 830 F.3d a t 248-49. The issue is not w hether Texas
has an in te re s t in com batting voter fraud, b u t w hether its claim to be
fighting a non-existent form of voter fraud is p re tex tual w hen used to
justify specific laws th a t have been proven to d iscrim inatorily im pact
Black and Latino voters.
15 D uring debate on SB14, th e Senate and H ouse sponsors both sta ted
th a t they were “not advised” about the ex ten t of in-person voter
im personation in Texas, and the House sponsor testified th a t, even
though in-person voter fraud w as the only legislative purpose for SB14
th a t she rem em bered, she could not recall w hether she even believed th a t
in-person voter fraud w as a problem in Texas. ROA.30908; RO A .30921-
22; ROA.75970; ROA.77366.
42
Proponents also claim ed th a t SB14 and its predecessor bills would
prom ote voter confidence. ROA.86887; ROA.102423. Yet the L eg islatu re
conducted no analysis ind icating w hether concerns about election fraud
actually affected voter tu rn o u t, and the bill’s proponents were unaw are
of any ex ternal analysis supporting th a t proposition,' nor could they
identify anyone who had not voted due to concerns about in-person voter
fraud. ROA.30929; ROA.74178. Instead , SB14’s proponents claim ed to
have relied upon polls regard ing support for voter ID. ROA.30744;
ROA.30756-57. B ut those polls provided no specifics about SB14’s
restric tive provisions and w ere conducted only after m em bers of the
m ajority political party m ade w idespread, false allegations th a t voter
fraud is epidem ic in Texas. ROA.68626-27. Thus, polls showing general
support for photo voter ID requirem ents, or even non-photo voter ID
requirem ents, do not estab lish broad support for SB14’s m uch h a rsh e r
provisions. S ee V easey II, 830 F.3d a t 263-64. As th is Court accurately
sum m arized, “[h]ere, too, th e re is evidence th a t could support a finding
th a t the L eg isla tu re’s race-neu tra l reason of ballot in tegrity offered by
the S tate is p re tex tu a l.” Id. a t 237; see also Pac. Shores Props., L L C v.
C ity o f N ew port Beach, 730 F.3d 1142, 1164 & n.28 (9th Cir. 2013)
43
(holding th a t legislative reliance on public opinion surveys ra th e r th a n
“objective m easures” is a “notable” irregularity ).
W hen, as here, a decision-m aker “offers inconsistent explanations
for its . . . decision a t different tim es,” the factfinder “m ay in fer” th a t the
“proffered reasons are p re tex tu a l.” S ta te n v. N ew Palace Casino, LLC,
187 Fed. A pp’x 350, 359 (5th Cir. 2006). Such pretex t can be “quite
persuasive” evidence of in ten tiona l discrim ination. R eeves v. Sanderson
P lum bing Prods., Inc., 530 U.S. 133, 147 (2000); see also S t. M a ry’s H onor
Ctr. v. H icks, 509 U.S. 502, 511 (1993) (“The factfinder’s disbelief of the
reasons p u t forw ard by th e defendant (particu larly if disbelief is
accom panied by a suspicion of m endacity) may, together w ith the
elem ents of th e prim a facie case, suffice to show in ten tiona l
d iscrim ination .”).
The d istric t court properly inferred pretex t from th e record
evidence, and th a t p retex t w as strong evidence of d iscrim inatory in ten t.
v. The legislative h istory of SB14 provides
su b stan tia l evidence of discrim inatory in ten t.
Legislative h istory is “highly re levan t” to determ ining purpose.
A rling ton H eights, 429 U.S. a t 268. As the d istric t court held, and th is
C ourt acknowledged, th e legislative history of SB14 contains several
44
significant indicia of d iscrim inatory purpose. Voter ID bills becam e
increasingly stric t over four consecutive Texas legislative sessions,
cu lm inating in the s tr ic te s t photo ID requ irem en t in the country.
ROA.68596-97; ROA.68609—10; ROA.86617-19. There w as no a ttem p t
to compromise w ith opponents. To th e contrary, th e more opponents
objected to the provisions of the proposed legislation because of th e ir
disproportionate im pact on m inorities, th e s tric te r and more
discrim inatory those provisions became. At every tu rn , w here SB14’s
proponents had a choice betw een designing the law in a way th a t would
increase disproportionate burdens on m inorities or m inim ize the
d ispara te im pact, they chose the form er. See Veasey II, 830 F.3d a t 237.
A fter th ree failures, legislative leadership sim ply ignored opposition
concerns over m inority d isenfranchisem ent, concerns th a t voter ID
proponents privately conceded were valid. ROA.68636—43.
(a) The proponen ts o f SB 14 used
unprecedented m easures to achieve th e ir
goal.
“D epartu res from the norm al procedural sequence also m ight
afford evidence th a t im proper purposes are p laying a role.” A rling ton
H eights, 429 U.S. a t 267. As th is Court observed, to pass SB14, the
45
L egislature used “num erous and radical procedural d ep a rtu re s ,” each
of which was highly unusual, and, w hen combined, were “v irtually
unprecedented ,” providing “one po ten tia l link in the c ircum stan tia l
to ta lity of evidence th e d istric t court m ust consider.” V easey II, 830
F.3d a t 237-38. The m achinations in th is case precluded debate and
prevented th e dissem ination of inform ation about and investigation
into the m ajor changes in SB 14 from earlie r bills. The d istric t court’s
findings on th is issue did not im plicate any of th e evidence found infirm
by th is Court and th e d istric t court’s inferences from these procedural
dep a rtu res are due deference under Rule 52.16
In 2011, the L eg islatu re fast-tracked SB14, a bill th a t elim inated
non-photo identification en tire ly and fu rth e r narrow ed th e set of
acceptable photo identification as com pared to prior bills. A fter it was
in itia lly filed, th e bill w as re-classified w ith a lower num ber to ensure
th a t it would be heard ea rlie r in the legislative session. ROA.74166—67.
Soon thereafter, then-G overnor Rick P erry designated it as “em ergency
legislation,” guaran tee ing th a t it would be considered in the firs t 60 days
16 This Court specifically rejected the argum en t th a t testim ony of
legislators could not be used to explain the irreg u larity of these
procedures. Veasey II, 830 F.3d a t 238 n.22.
46
of the session, despite th a t ne ither th e bill’s proponents nor Texas
election officials could identify any em ergency w arran tin g th is
trea tm en t. ROA.73267-68; ROA.75420. SB14’s proponents th en used
rad ical procedural m aneuvers to short-circuit debate, including:
suspending th e century-old tw o-thirds ru le in the Senate for bringing up
legislation, (ROA.72450—5 l) ;17 passing SB14 th rough th e Com m ittee of
th e Whole, and th en ra ising and passing th e bill by sim ple m ajority votes,
(ROA.30948); and bypassing the o rd inary com m ittee process in the
House and Senate and sending th e bill to a special “ fast track ” House
com m ittee hand-picked by SB14 supporters, (ROA.71736-37; see Pac.
Shores Props., LLC, 730 F.3d a t 1164 (holding th a t passage th rough a
unique, ad hoc com m ittee m ay constitu te a procedural deviation under
A rling ton H eights)). Then, th e Conference Com m ittee w ent “outside the
bounds” of reconciling the S enate or House bills and am ended the bill
substan tive ly by crafting the EIC program , e lim inating the opportunity
for debate or refinem ent. ROA. 72967-68; see also R esid en t A d viso ry Bd.
17 A lthough Texas calls suspension of th e tw o-th irds ru le a “common
tactic ,” w itnesses from both parties described it as “highly u n u su a l” and
“not how th e Texas Senate operates” in th e ord inary course of business.”
ROA.72451—53.
47
v. R izzo, 564 F.2d 126, 144 (3d Cir. 1977) (holding th a t bypassing a
m echanism th a t requ ires discussion is a “strik in g ” procedural departure).
Finally, SB14 w as tak en up and passed despite its $2 million fiscal note,
even though the L eg islatu re w as operating w ith a $27 m illion budget
shortfall and w ith stric t in struc tions not to advance any leg islation w ith
a fiscal note. ROA.72626-27; RO A .78505-08.18
O utside of the public process, the Office of the Secretary of S tate
provided an im pact analysis to the Office of th e L ieu tenan t G overnor and
th en w ithheld it from o ther legislators. At the request of Senator
W illiam s, th e Office of the Secretary of S ta te engaged in a da tabase
m atch ing analysis betw een th e Texas voter reg istra tion d a tab ase and the
database contain ing records of individuals w ith a Texas d river’s license
or personal ID. ROA.73275-77. This analysis identified betw een 678,560
and 844,713 reg istered voters who did not m atch an identification record,
18 Texas criticizes the d istric t court for referring to the add ition of $2
m illion to th e already large budget shortfall, argu ing th a t th e money was
already in the agency’s possession. Tex. Br. a t 96. The d istric t court’s
m ain points w ere th e adm itted deviation from the rule th a t no bill be
advanced w ith a fiscal note, and th e S ta te ’s w illingness to spend so m uch
money on a non-existent problem despite th e S ta te ’s financial d istress.
The d istric t court also noted th e record evidence as to the insufficiency of
the funds to accom plish the purpose of educating the public. Veasey, 71
F. Supp. 3d a t 649.
48
and the L ieu tenan t G overnor received a briefing on th is analysis,
including the estim ate. ROA.73828—33! ROA.88154—56. N onetheless,
the Office of the Secretary of S ta te declined to provide the d a ta to most
legislators and, during th e expedited legislative process, m isrepresen ted
th a t the analysis was not yet com plete. ROA. 73292—94. The Office of the
Secretary of S ta te routinely uses S panish su rnam e data , (ROA. 73249-
50), and if bill opponents had been inform ed th a t an im pact analysis
existed, they could have requested an estim ate of the sh are of voters
w ithout Texas identification who are H ispanic. Instead , th e Office of the
Secretary of S ta te em bargoed the im pact analysis and allowed
proponents of SB14 to respond th a t they w ere “not advised” concerning
the bill’s d iscrim inatory im pact, even though proponents recognized the
predictable im pact to be “common sense.” ROA.68640-41; ROA.73292-
94; ROA.73336-37; see also P erk in s v. C ity o f W est H elena, 675 F.2d 201,
213 (8th Cir. 1982) (acknowledging th a t w ithholding guidance un til after
a vote constitu tes a “d ep a rtu re [] from th e norm al procedural process” and
“evidence of a d iscrim inatory purpose”). D espite all of th is, Texas
characterizes the procedural deviations as “en ab lin g ] public debate to
take place,” and dem onstra ting a “devotion to dem ocracy.” Tex. Br. a t 74
49
(quoting C ity o f Cuyahoga F alls v. B uckeye C m ty. H ope Found., 538 U.S
188, 196 (2003)).19
Texas im properly views these procedural deviations in isolation,
ra th e r th a n acknowledging th a t th e ir com bination w as w ithout
precedent. As th e F ifth C ircuit noted w ith respect to the very issue of
procedural irregu larities , “context m a tte rs .” V easey II, 830 F.3d a t 237.
Texas also tries to downplay the extrem e m easures tak en to pass
the bill by blam ing bill opponents for blocking voter ID bills in th e past.
Tex. Br. a t 74-77. This argum ent is unavailing. As Texas points out, it
was able to take these radical and unprecedented procedural steps to
pass the m ost s trin g en t voter ID bill in the country only afte r w inning
“overw helm ing m ajorities in both the Texas H ouse and S enate .” Tex. Br.
a t 76. In short, Texas proves nothing more th a n th a t the proponents of
SB 14 were unable to pass a less d iscrim inatory bill w hen they had less
19 Texas curiously relies on Cuyahoga F alls for such an im portan t
proposition. Cuyahoga did not discuss the A rling ton H eigh ts p rocedural
deviation factor, and, there , the jurisd iction had “adherted] to ch a rte r
procedures,” not deviated from them . Cuyahoga Falls, 538 U.S. a t 196.
50
political power, and were able to pass a more discrim inatory bill w hen
they had more political power.20
Finally, Texas also argues th a t the d istric t court w as w rong to infer
th a t SB14 w as enacted w ith “u n n a tu ra l speed” because the L egislature
had debated previous voter ID bills. Tex. Br. a t 74, 77-78 (quoting
Veasey, 71 F. Supp. 3d a t 700). However, th is case is about SB14, and,
as discussed, supra , SB 14 is decidedly more stringen t, and more
discrim inatory, th a n prior bills. D iscussions on prior bills a re therefore
of lim ited relevance.
As th is Court em phasized, no o ther issue th a t the 2011 L egislature
faced—not th e $27 million budget shortfall, not tran sp o rta tio n funding,
nothing—w as designated as a legislative em ergency, got its own select
com m ittee, or was passed w ith an exception to the tw o-th irds rule.
Veasey II, 830 F.3d a t 238. These drastic procedural dep artu res th a t cut
off m eaningful debate are alone strong evidence th a t the bill w as passed
w ith a d iscrim inatory in ten t, and are even moreso given th e com plete
20 Sim ilarly, th a t the 2007 Senate leaders m ay have provided a courtesy
to opponents of the voter ID th en under consideration, (Tex. Br. a t 75),
does not give th e 2011 Senate leaders a free pass to steam roll SB14 to
passage.
51
lack of evidence th a t th e problem s th e bill purported to address even
exist.
(b) S B 1 4 ’s passage was m a rked b y su b sta n tive
departures.
“S ubstan tive d ep a rtu re s too m ay be relevant, particu larly if the
factors usually considered im portan t by th e decisionm aker strongly
favor a decision contrary to th e one reached .” A rling ton H eights, 429
U.S. a t 267. As found by th e d istric t court, th e L egislature’s decisions
regard ing SB14 m ake sense only w hen viewed th rough the lens of
d iscrim inatory motive. ROA.69770-72.
W hen advocating for SB14’s passage, bill proponents “cloak[ed]
them selves in the m an tle of following In d ian a ’s voter ID law,” but,
significantly, “the proponents of SB 14 took out all the am eliorative
provisions of the Ind iana law .” V easey II, 830 F.3d a t 239. The sam e is
tru e w ith respect to SB14’s rela tionsh ip to G eorgia’s voter ID law. See
id. a t 263.21 SB14 w as far more restric tive th a n both. ROA.72683—89.
21 Ind iana and Georgia accept a broad range of docum ents issued by the
U nited S ta tes or the s ta te —including an employee or s tu d en t ID—and
accept ID th a t has been expired for a longer period. ROA.68613-14.
Ind iana also allows voters w ithout ID to cast a ballot th a t will count after
com pleting an indigency affidavit, and Georgia allows voters to p resen t
ID issued by Georgia, its counties, its m unicipalities, native tribes, and
52
S enator F raser, who au thored SB14, conceded th a t SB14 perm its fewer
photo IDs th a n Ind iana and th a t he was unaw are of w hether th e Ind iana
law perm itted use of s tu d en t IDs. ROA.75454; ROA.75477—78. Senator
F ra se r’s chief of staff, SB14’s principal drafter, testified th a t she never
even reviewed th e Ind ian a or Georgia laws while d rafting SB14.
ROA.31129.22
M oreover, as th is C ourt detailed, despite hearing evidence th a t “the
po ten tia l and reality of fraud is m uch g rea te r in the m aih in ballo t context
th a n w ith in-person voting,” th e L egislature chose to pass SB 14, which
“did noth ing to com bat m aih in ballot fraud .” V easey II, 830 F.3d a t 238-
39. The decision not to leg islate m aih in voting procedures to address
m aih in ballot fraud fu rth e r corroborates th e d istric t court’s conclusion
even ID from all 50 sta tes , as well as ensuring th a t no-fee voter
identification is available in every county w ith m inim al underlying
docum entation requ irem ents. Id.
22 P articu larly re levan t to the question of a voter ID law ’s in tended
im pact on m inority citizens, Georgia does not charge for one of the
com pliant IDs, for which the underly ing docum ents also do not cost
anyth ing . ROA.68613. In d ian a provides an indigency exception.
ROA.68614. Both s ta tes also accept a num ber of photo IDs, such as
public college IDs, th a t Texas does not, and th a t SB14 proponents have
repeated ly been unable to articu la te any reason for excluding.
ROA.32143; ROA.68613-14.
53
th a t the L egislature enacted SB14 w ith d iscrim inatory in ten t. Anglo
voters are substan tia lly more likely th a n Black and Latino voters to
qualify to vote by m ail on the basis of age and com prise a d isproportionate
share of absentee voters who vote by m ail in Texas. ROA.91820-21;
ROA.91853.
Texas’s argum ent, ra ised for th e firs t tim e on rem and, th a t it had
addressed absentee ballot fraud prior to 2011, and th a t, therefore, its
absence from SB 14 is of no m om ent, (Tex. Br. a t 94), is m akew eight.
Even after the changes to Texas’s absen tee ballot law in 2003, absentee
ballot fraud rem ained a top security concern of election officials.
ROA.92250; ROA.93018; ROA.93082-83. Sim ilarly, th a t the leg isla ture
increased the penalties for absen tee ballot fraud in 2011 does not change
the fact th a t Texas already had h a rsh penalties for in-person
im personation fraud before th e passage of SB14 and nonetheless
in s titu ted fu rther, burdensom e m easures to prevent i t—despite the re
being no evidence th a t it existed. Tex. Elec . CODE § 64.012 (2003); Tex.
PENAL Code § 12.34 (2003) (up to ten years im prisonm ent and a fine of
up to $10,000).
54
(c) S B 1 4 ’s proponen ts rejected am eliora tive
am endm ents.
“A gainst a backdrop of w arnings th a t SB 14 would have a d ispara te
im pact on m inorities and would likely fail the (then extant) preclearance
requ irem ent, am endm ent after am endm ent w as rejected.” V ea sey ll, 830
F.3d a t 239. A m endm ents seeking to in troduce additional form s of
acceptable photo ID were accepted only if those forms of ID were
d isproportionately held by Anglo Texans (concealed handgun licenses),
and w ere rejected if those form s of ID were disproportionately held by
Black and Latino Texans (governm ent employee IDs and public
un iversity IDs). ROA.68646—47. The L egislature also voted to reject or
perm anen tly tab le a whole host of am eliorative am endm ents, including,
am ong o thers, am endm ents th a t would have: extended th e hours of
operation a t DPS offices to m ake obtain ing IDs more feasible
(ROA.76711—12); waived fees for underlying docum ents so th a t obtaining
a photo ID would not be cost-prohibitive to low incom e m inority
com m unities (ROA.77478-79); perm itted use of expired IDs
(ROA.77485—86); and requ ired an im pact analysis of the effect of SB14
on m inority Texans (ROA.76712-14). Furtherm ore, the Conference
Com m ittee elim inated m any im portan t am eliorative fea tu res from the
55
bill, including provisions passed by th e House and Senate, such as an
indigency exception and a provision ta rg e tin g education for low incom e
and m inority voters. ROA.78263; ROA.78267.23 Texas also argues th a t
the proponents of SB 14 could not have harbored a discrim inatory in ten t
because they also voted for some am eliorative am endm ents. Tex. Br. a t
80. This sim ply m eans th a t th e law could have been worse th a n it is,
hard ly a defense aga inst d iscrim inatory in ten t.
Significantly, none of th e Conference Com m ittee’s changes th a t
increased th e burden on m inority voters fu rthered the L eg isla tu re’s
purported goals of p reventing voter fraud, de terring noncitizen voting, or
increasing voter confidence. And none of the rejected am endm ents put
23 Texas spends pages of its b rief argu ing th a t the deletion of the
indigency am endm ent w as a t th e behest of Dem ocratic R epresentative
Anchia. Tex. Br. a t 92-93. This is false. W hile R epresentative Anchia
did criticize th e indigency-affidavit procedure, he did so not out of a belief
th a t SB 14 w as b e tte r w ithout th e procedure, bu t to expose how it was
contrary to SB14’s purported purpose of ballo t in tegrity . ROA.77634—39.
R epresen tative Anchia suggested th a t th e L egislature could “come up
w ith a good photo identification bill” by expanding the scope of acceptable
IDs and refining the affidavit procedure. ROA.77639-40. B ut in stead of
adopting any of R epresen tative A nchia’s suggestions, proponents of SB14
sim ply rem oved the en tire indigency-affidavit procedure from the
legislation. ROA.77815-16. C ontrary to Texas’s claim, R epresentative
A nchia opposed th is am endm ent: his vote w as m isrecorded as a “yea”
and he en tered a s ta tem en t of vote on th e record correcting th a t error.
ROA.77492-93.
56
forw ard to ligh ten th a t b u rden would have im peded those purported
goals. At tria l, Texas p u t on no evidence th a t a un iversity ID or
governm ent employee ID is any easier to forge th a n a d river’s license or
th a t an expired d river’s license is any easier to fake th a n a cu rren t
d river’s license. Expanding DPS hours m akes it no more likely th a t a
noncitizen person votes. E ducating poor and m inority voters about the
photo ID requ irem en ts would, if anything, increase voter confidence in
the electoral system . Rejecting these provisions is not consistent w ith
the sta ted goals of the bill. I t is, however, perfectly consistent w ith a
desire to abridge the rig h t to vote of Black and Latino Texans.
(d) Con tem poran eo us sta tem en ts— an d
silence— b y leg isla tors provide evidence o f
discrim ina to ry in ten t.
Texas argues th a t, w ithout leg isla tors’ express s ta tem en ts of
culpability, the d istric t court should have accepted the leg isla tors’
s ta tem en ts th a t th e ir in te n t w as pure. Tex. Br. a t 81. B ut th is Court
has already held th a t “th e absence of d irect evidence such as a ‘le t’s
d iscrim inate’ em ail cannot be and is not dispositive.” V ea sey ll, 830 F.3d
a t 241; see also id. a t 231 n.13 (holding th a t th e court w as “not required
to find [that the] lack of a sm oking gun supports the S ta te ’s position”).
57
R equiring direct evidence of in ten t “would essen tially give leg isla tu res
free rein to racially d iscrim inate so long as they do not overtly s ta te
d iscrim ination as th e ir purpose and so long as they proffer a seem ingly
n eu tra l reason for th e ir actions.” Id. a t 235-36. Indeed, in am ending
Section 2 of the VRA, the Senate Jud ic iary Com m ittee recognized th a t
S ta tes m ay “plantQ a false tra il of direct evidence in the form of official
resolutions, sponsorship sta tem en ts and o ther legislative h istory
eschewing any racial motive, and advancing o ther governm ental
objectives.” S. Rep. No. 97-417 a t 37 (1982).
Here, SB14’s proponents’ failure to speak a t crucial tim es is highly
probative of th e ir d iscrim inatory in ten t. As th is Court explained, “[i]t is
likewise re levan t th a t SB 14’s proponents refused to answ er why they
would not allow am endm ents to am eliorate th e expected d ispara te
im pact of SB 14.” V easey II, 830 F.3d a t 241.
For exam ple, R epresentative P atric ia H arless, SB14’s House
sponsor, could not explain why federal, s ta te , and m unicipal photo IDs
are not acceptable under SB14 while m ilita ry IDs and U.S. passports are,
nor why a separa te voter ID bill th a t she introduced the very sam e
session included forms of ID th a t w ere not accepted under SB14.
58
ROA.30926-28. And th e S enate sponsor of SB14 responded, “I’m not
advised,” not once as Texas implies, (Tex. Br. a t 80), bu t 2 7 tim es to
questions rang ing from evidence of in-person fraud to d a ta of the effect
of th e bill to am elioration of the burdens of the bill. ROA.68640—41.
From these s ta tem en ts and non-statem ents, the d istric t court
appropriate ly drew reasonable inferences about the L eg isla tu re’s
d iscrim inatory in ten t.
(?) T exas’s ne w legisla tive h is to ry theory is
im proper a n d fu r th e r p ro o f o f p re tex t.
D uring the rem and proceedings, and on th is appeal, Texas has
introduced a new factual and overarching theory of its case, i.e., th a t
SB14 w as sim ply the la s t step in a decade-long a ttem p t a t m odernization
of the s ta te ’s voting laws. This new slan t on the evidence perm eates its
cu rren t briefing on in ten t. See , e.g., Tex. Br. a t 73, 90—91. N ever in the
proceedings leading up to rem and did Texas p resen t th is theory of the
case: not in the Section 5 tr ia l in 2012, not in the tr ia l before th e d istric t
court in th is case in 2014, not in the appeal to th is Court in 2016.
Therefore, it has waived th a t argum ent. See Osamor, 271 Fed. App’x a t
410; B rooks, 757 F.2d a t 739. W hen Texas com plains th a t “m uch of [the
59
evidence was] not previously analyzed,” (Tex. Br. a t 68), it has only itself
to blam e.
F u rth e r, Texas’s new n arra tiv e is based on facts not in the p re
rem and record, contrary to th is C ourt’s express directive th a t “the
d istric t court should not tak e additional evidence.” Veasey II, 830 F.3d
a t 242. Texas cited no record evidence in support of its new theory.
R ather, for th e first tim e during the rem and proceedings, Texas cited
legislative history, and requested th a t the d istric t court tak e judicial
notice of it. ROA.68834-37. The d istric t court stopped accepting
evidence on Septem ber 22, 2014, the day of closing argum ent. In the
m onths preceding, the p arties had m ade several motions for the d istric t
court to tak e judicial notice of various facts. Texas never moved for
judicial notice of the facts upon which it bases its new theory, and,
therefore, th e factual prem ise of its new n a rra tiv e w as precluded by the
m andate of th is Court.
In fact, the absence of evidence from tria l, and the absence of th is
arg u m en t from previous briefing, reflects th a t th is new story of a single,
“m odernizing” in ten t—one th a t purportedly covered every vaguely
election-related law over the course of a decade—is only the la te s t in a
60
series of p re tex tual ra tiona les for SB14 th a t, as th is Court noted, shift
“as they [are] challenged or disproven by opponents.” V ea sey ll, 830 F.3d
a t 240-41. And th is la te s t p re tex t is e ither so feeble th a t Texas chose not
to raise it w hen it could have been tested th rough discovery and a t trial,
or of such recent invention th a t Texas sim ply had not th o u g h t of it yet
w hen SB 14 w as previously before th is Court (and before the th ree other
courts th a t have heard challenges to SB14).24 T h at Texas’s “principal
reasons” for enacting SB14 continue to “shiftD over tim e, suggest[s] th a t
those reasons m ay be p re tex tu a l.” F oster v. Chatm an, 136 S. Ct. 1737,
1751 (2016); see also W isem an v. N ew B reed Logistics, Inc., 72 F. Supp.
3d 672, 683 (N.D. Miss. 2014) (“Justifications . . . provided a fte r litigation
24 W hat evidence Texas does cite in support of its new theory is flimsy.
Texas cites to no legislator who justified SB 14 by pointing to the 2000
election or who com pared SB14 to these various o ther election laws
passed since 2001, e ith e r during contem poraneous debate or in
deposition testim ony. F u rth e r, th e laws th a t Texas cites in its findings
of fact as exam ples of th is “m odernization” motive were passed largely to
comply w ith the Help A m erica Vote Act and receive federal funding, and
th e ir voter ID provisions were far less burdensom e th a n SB14.
ROA.91816. Texas’s claim th a t, in enacting SB14, the L eg isla tu re was
influenced by the C arter-B aker Com mission Report is belied by the
L eg isla tu re’s refusal to adopt safeguards recom m ended by the
Commission to avoid disproportionate burdens on m inority voters.
61
has commenced m ay be sufficient to constitu te p retex t.”). Texas’s la te s t
argum en t is sim ply ano th er unsupported , post-hoc justifica tion for
SB14’s in ten tiona lly d iscrim inatory enactm ent. See B eth u n e-H ill v. Va.
S ta te Bd. O f E lections, 137 S. Ct. 788, 799 (2017) (finding th a t th e inquiry
into legislative in te n t tu rn s on “the actual considerations th a t provided
the essen tia l basis for th e lines draw n, not p o st hoc justifications the
leg isla ture in theory could have used b u t in rea lity did not”).
vi. Texas has a recent h isto ry of d iscrim ination in
voting.
“The historical background of th e decision is one ev identiary
source, particu larly if it reveals a series of official actions tak en for
invidious purposes.” A rling ton H eights, 429 U.S. a t 267. W ithout
relying on any infirm evidence, the d istric t court confirm ed its prior
finding th a t Texas has a “reasonably contem poraneous h isto ry” of
racial and ethnic d iscrim ination in voting. ROA.69769'70. The d istric t
court supplem ented its in itia l exposition of th is post-2000 h isto ry of
d iscrim ination w ith additional events from 1975 forw ard, {id ), which
th is Court found relevant, including the a ttem p ted purging of m inority
voters from th e polls, and th a t Texas ‘“is the only s ta te w ith th is
consistent record of objections’” by D O J to its statew ide red istric ting
62
plans, V easey II, 830 F.3d a t 239-40. This C ourt found it notable th a t
‘“[i]n every red istric tin g cycle since 1970, Texas has been found to have
violated the [VRA] w ith racially gerrym andered d istric ts .’” Id. a t 240
(in ternal quotations om itted). Indeed, as th is Court em phasized, “the
sam e L egislature th a t passed SB 14 also passed two [different
red istric ting plans] found to be passed w ith discrim inatory purpose.”
Id.
Texas has not challenged these findings in its brief, and has
forfeited its rig h t to do so on th is appeal.
vii. Texas has not m et its bu rden of proving it would
have enacted SB 14 absen t discrim inatory
purpose.
U nder the F o u rteen th A m endm ent, once th e Court determ ines th a t
SB14 w as enacted, a t least in part, w ith a d iscrim inatory purpose, the
burden shifts to D efendants to prove th a t th e specific d iscrim inatory
provisions of SB14—not ju s t any voter ID law, bu t SB14 in p a rticu la r—
would have been enacted absen t th a t d iscrim inatory purpose. See
H u n ter , 471 U.S. a t 228. Texas did not m eet th a t burden. As th e d istric t
court ruled, in findings th a t th is Court credited and are fully supported
by the evidence^
63
[The State] did not provide evidence th a t the
d iscrim inatory fea tu res [of SB14] w ere necessary
to p reven t non-citizens from voting. They did not
provide any evidence th a t would link these
d iscrim inatory provisions to any increased voter
confidence or voter tu rn o u t. As the proponents
who appeared (only by deposition) testified, they
did not know or could not rem em ber why they
rejected so m any am eliorative am endm ents, some
of w hich had appeared in prior bills or in the laws
of o ther s ta tes . T here is an absence of proof th a t
SB 14’s d iscrim inatory featu res were necessary
com ponents to a voter ID law.
Veasey, 71 F. Supp. 3d a t 702.25
In th is context, Texas’s rew riting of SB14’s h istory does not answ er
the m ost fundam en ta l questions. Why, w hen th e L egislature finally got
the num bers it needed to pass photo ID in 2011, did it m ake th e bill
much more s trin g en t th a n any prior a ttem p t, and much more s trin g en t
th a n G eorgia’s or In d ian a ’s laws, which SB14 w as supposed to model?
Why, w hen faced w ith even g rea te r opposition to the bill by m inority
legislators and w hen inform ed by the office of the L ieu tenan t Governor
th a t the bill would d ispara te ly im pact m inority voters, did the
25 Texas claim s th a t th e d istric t court failed to m ake findings on th is point
on rem and. Tex. Br. a t 97-98. In fact, in th e rem and decision, th e d istric t
court s ta ted th a t th e infirm evidence did not “tip th e scales” on any issue
in its original decision, (ROA.69773), and addressed the basis for the
original findings on w hether Texas m et its burden, (ROA.69767-72).
64
L egislature reject am eliorative am endm ent afte r am eliorative
am endm ent th a t would have lessened SB14’s d iscrim inatory im pact? In
th e words of the Senate sponsor of SB14, w hen he w as asked these
questions, apparen tly Texas w as “not advised.” In the w ords of the
House sponsor of SB14, w hen she w as asked these questions, apparen tly
Texas “cannot recall.” The sim plest, m ost logical, and tru e s t answ er is
th a t d iscrim inatory in te n t m otivated th e law ’s passage, and th e bill
would not have passed w ithout th a t in ten t.
65
III. THIS COURT SHOULD AFFIRM THE DISTRICT COURT’S
REMEDIAL ORDER
A. Standard Of Review
Once invoked, “‘the scope of a d istric t court’s equitable powers . . .
is broad, for b read th and flexibility are in h e ren t in equitable rem edies.’”
Brow n v. P lata, 563 U.S. 493, 538 (2011) (quoting H u tto v. F inney, 437
U.S. 678, 687 n.9 (1978)).
This Court reviews a d istric t court’s shap ing of equitable rem edies
for a constitu tional violation for abuse of discretion. G ates v. Cook, 376
F.3d 323, 333 (5th Cir. 2004). “[Dleference” to th e tr ia l court “is the
hallm ark of abuse-of-discretion review.” Gen. Elec. Co. v. Joiner, 522
U.S. 136, 137 (1997); see also A m . F ed ’n o f S ta te , C ity A n d M un. E m ps.
v. C ity o f B enton, 513 F.3d 874, 883 (8th Cir. 2008) (“We review a d istric t
court’s findings of fact regard ing the rem edy under a clearly erroneous
standard , and th e re is a strong presum ption th a t th e findings are
correct.”).
B. The District Court’s Remedial Order Was Sound, Supported,
And Within Its Equitable Discretion
The d istric t court’s rem edial order w as sound, supported by both
precedent and the record, and therefore well w ith in its equitable
66
discretion .26 Giving Texas an opportunity to resolve the constitu tional
in firm ities of its voter photo ID law on its own, the d istric t court delayed
its rem edial proceedings un til afte r the close of the legislative session.
£'e“eR O A .69756-63. The d istric t court then reviewed SB5’s am endm ents
to SB 14 in the context of its discrim inatory purpose and d iscrim inatory
resu lts findings. F inding th a t SB5 fails to provide an adequate and
constitu tional rem edy for the harm s of SB14’s in ten tio n a l
d iscrim ination—and indeed “perpetuates SB14’s d iscrim inatory
fea tu res”—th e Court enjoined SB 14 as well as SB5’s am endm ents to it.
ROA.70452. The d istric t court’s w ell-supported findings should be
affirm ed.
26 F irst, the d istric t court g ran ted P lain tiffs’ request for declaratory relief
holding th a t SB14 violates Section 2 of the VRA and the F o u rteen th and
F ifteen th A m endm ents to the U nited S tates C onstitution. ROA.70434.
This w as obviously proper given the d istric t court’s finding th a t SB14
w as motived, a t least in part, by a discrim inatory purpose. ROA.69764-
73; Veasey, 71 F. Supp. 3d a t 698-99 (noting th a t the “rubric for m aking
a determ ination of a d iscrim inatory purpose is th e sam e” u n d er Section
2 of th e VRA and the F ou rteen th and F ifteen th A m endm ents). Texas
does not d ispu te the propriety of th is order except to argue th a t it should
now be vacated based on th e passage of SB5 and its “soon-to-be moot”
argum ent. For reasons described exhaustively (see in fra , P a r t II
(discussing th e m erits of the discrim inatory in ten t finding) and supra ,
P a r t IV (discussing mootness)), the declaratory judgm ent should not be
vacated.
67
A fter exhausting all of its po ten tia l judicial options for m ain ta in ing
SB 14 in its prior form, including petitioning for certio rari on th is C ourt’s
en banc decision, the L eg islatu re adopted SB5 as a la st resort on May 31,
2017, after the d istric t court issued its A pril 10 opinion finding th a t SB14
w as in ten tionally d iscrim inatory. This w as not a new voter identification
law u n ta in ted by SB14’s in ten tio n a l discrim ination. In fact, the
L egislature re ta ined m ost of SB14, including m any of the features th a t
led th e d istric t court to find it in ten tionally discrim inatory. SB5 did not
m eaningfully change the types of requ isite ID, remove the b arrie rs to
obtain ing th e requisite ID, or increase its educational efforts.
ROA.70440-43; ROA.70450-51. Therefore, th e Black and Latino voters
ta rg e ted by SB14’s d iscrim inatory purpose continue disproportionately
to face additional b a rrie rs to vote.
Indeed, because th e L eg isla tu re adopted m any of SB14’s
d iscrim inatory provisions, SB5’s im plem entation hinges on the
continuing enforcem ent of p a rts of SB14, a law the d istric t court held was
designed to d iscrim inate ag a in st m inority voters, and which it
perm anen tly enjoined before SB5’s provisions take effect on Ja n u a ry 1,
68
2018, effectively rendering SB5 inoperative. For th a t reason alone, SB5
fails.
B ut those were not th e only choices th e L egislature m ade. The
leg isla tu re codified in SB5 several detrim en ta l changes to th e reasonable
im pedim ent declaration procedure pu t in place by the in te rim order. The
rem edy in th e in te rim order w as already a narrow “stop-gap,” u tilized
because the parties were following th is C ourt’s order to focus on an
in te rim rem edy for w hat w as th en only a d iscrim inatory re su lts violation.
See V easey // , 830 F.3d a t 269-72. The in terim order w as in tended to
keep m ost of SB 14 in tac t and address only the resu lts violation on a
tem porary basis in tim e for th e 2016 elections. ROA.70444.27
Thus, Texas’s and th e U nited S ta te s’ a rgum ent th a t SB5— several
of whose provisions are even less protective th a n the in te rim stop-gap
27 Texas and th e U nited S ta te s ’ a ttem p t to bootstrap th is negotiated
in te rim rem edy into the baseline for any rem edy is not only im proper but,
if adopted by th is Court, likely to discourage good faith negotiation and
com promise am ong parties in sim ilar circum stances involving short
tim elines for in terim relief and th u s ru sh considered judgm ent of
required rem edies and w aste valuable judicial resources.
69
rem edy—insu la tes Texas from any rem edial order to cure an in ten tiona l
d iscrim ination violation, w as correctly rejected by th e d istric t court.28
1. Unlawful intentional discrimination requires a
meaningful and complete remedy.
The law on rem edies for unconstitu tional in ten tiona l
d iscrim ination is clear and unequivocal. A law passed w ith
discrim inatory in ten t has “no legitim acy a t all under our C onstitu tion .”
C ity o f R ichm ond v. U nited S ta tes, 422 U.S. 358, 378 (1975). Therefore,
th e legislative choices underly ing an in ten tiona lly d iscrim inatory law are
owed no deference w hatsoever. See A rlin g to n H eights, 429 U.S. a t 265—
66. And the racial d iscrim ination of th a t law m ust “be elim inated root
and b ranch .” Green v. C nty. Sch. Bd., 391 U.S. 430, 437-38 (1968). The
benchm ark for any rem edy for unconstitu tional d iscrim ination is
w hether it “placets] th e victim s of d iscrim ination in th e position they
would have occupied in th e absence of d iscrim ination .” U nited S ta te s v.
Virginia, 518 U.S. 515, 565 (1996). Accordingly, th is C ourt has already
28 Indeed, as discussed supra, the d istric t court a lready found, applying
th e A rling ton H eigh ts s tandards, including th e d isproportionate im pact
of SB 14, th a t the evidence supports a finding th a t SB 14 w as enacted
w ith th e in ten t to d iscrim inate against Black and Latino Texans. T hat
in te n t does not d isappear, even if SB5 rem edies th e d iscrim inatory
resu lts of SB14—which it does not—as discussed below.
70
recognized th a t th e rem edy for purposeful d iscrim ination would likely be
broader th a n th e rem edy for discrim inatory resu lts only. V easey II, 830
F.3d a t 268.
W here a court finds th a t the S ta te has acted w ith unconstitu tional
d iscrim inatory in ten t, “th e court has not m erely the power b u t the duty
to ren d er a decree w hich will so far as possible elim inate the
discrim inatory effects of th e past as well as b a r like d iscrim ination in the
fu tu re .” L ouisiana v. U nited S ta tes, 380 U.S. 145, 154 (1965).29
Following these basic principles, the d istric t court concluded th a t SB5,
which incorporates m uch of SB14’s d iscrim inatory provisions, fell far
short of providing an adequate constitu tional rem edy for SB14’s
in ten tiona l d iscrim ination aga inst Black and Latino voters.
29 The sam e duty to provide a complete rem edy adheres to Section 2 VRA
violations. S e e S. Rep. No. 97-417 a t 31 (1982) (“The court should exercise
its trad itio n a l equitab le powers to fashion the relief so th a t it com pletely
rem edies th e prior d ilu tion of m inority voting s tren g th and fu lly provides
equal opportun ity for m inority citizens to partic ipate and to elect
candidates of th e ir choice.” (em phasis added)).
71
2. SB5 perpetuates SB14’s discriminatory features.
F irs t and foremost, SB5 did not m eaningfully change th e lim ited
list of requisite photo IDs under SB14. ROA.70441 (“SB5 does not
m eaningfully expand the types of photo IDs th a t can qualify, even though
the Court w as clearly critical of Texas hav ing th e m ost restric tive list in
the country.”).30 W hile SB5’s expansion of th e tim e during which certain
forms of ID can be used afte r expiration m ay m itigate some am ount of
harm , th e re is no evidence th a t it would m eaningfully reduce the
d ispara te im pact of SB14’s restric tive lis t of IDs. ROA.70442.
M eanw hile, the rem oval of any lim ita tion based on expiration for those
over 70 will help some seniors b u t actually exacerbates the
d isproportionate im pact on m inority voters since “th a t class of voters is
d isproportionately w hite .” Id.
The d istric t court found, and th is C ourt affirm ed, th a t Latino and
Black Texans are two to th ree tim es m ore likely to lack th e narrow
category of acceptable SB14 IDs. V easey II, 830 F.3d a t 250-56. The
30 The addition of “passport cards” is of little relevance because “there is
no evidence th a t only passpo rt books w ere perm itted under SB14” and
“the requ irem ents for e ith e r form of p asspo rt” are sim ilar to o ther forms
of SB14 ID and both require a su b stan tia l fee. ROA.70441.
72
L egislature largely accom plished th is d isparity in SB 14 by picking and
choosing th e “acceptable” IDs th a t are disproportionately held by Anglo
voters and excluding IDs d isproportionately held by m inority voters.
Veasey, 71 F. Supp. 3d a t 658 (“W hen th e leg isla tu res rejected s tu d en t
IDs, s ta te governm ent employee IDs, and federal IDs, they rejected IDs
th a t are disproportionately held by A frican-A m ericans and H ispanics.”).
Indeed, th is Court recognized th a t a relevant piece of evidence of
discrim inatory in ten t was the legislators’ refusal to accept am eliorative
am endm ents, including ones expanding the types of accepted IDs, in light
of SB14’s predictable discrim inatory im pact on m inority voters. Veasey
II, 830 F.3d a t 236-37. In order to resolve th is discrim inatory picking and
choosing of acceptable IDs, th is Court suggested the re in sta tem en t of the
voter reg istra tion card as an acceptable form of ID:
W hile the reg is tra tio n card does not contain a photo, it
is a more secure docum ent th a n a bank s ta tem en t or
electric bill and, presum ably, one not as easily obtained
by another person. I t is sen t in a nondiscrim inatory
fashion, free of charge, to each reg istered voter and
therefore avoids any cost issues.
V easey II, 830 F.3d a t 271 n.72.
Texas did not tak e th is advice and m ain ta ined its cu rren t
d iscrim inatory list of acceptable ID; requ iring all individuals w ithou t th is
73
form of ID to follow separa te additional procedures to vote. ROA.70441
(“Because those who lack SB 14 photo ID are subjected to sep ara te voting
obstacles and procedures, SB5’s methodology rem ains discrim inatory
because it im poses burdens disproportionately on Blacks and L atinos.”).
By the tim e the legislators considered SB5, th e ir obvious aw areness of
the d isproportionate im pact of SB14’s in itia l lis t of requ isite IDs was
m ultip lied by repeated findings and conclusions of several federal courts.
Yet, the L egislature left th is d iscrim inatory featu re practically
untouched. For th is reason and others, SB5 “p a rtak es too m uch of the
infirm ity o f’ SB14 “to be able to survive.” L ane v. Wilson, 307 U.S. 268,
275, 277 (1939) (strik ing down an O klahom a reg istra tion ru le devised
after the preceding s ta tu te w as struck down as racially d iscrim inatory
because the ru le “operated unfairly aga in st th e very class on whose
behalf the protection of th e C onstitu tion w as here successfully invoked”).
SB5 also does not appreciably remove th e obstacles for m any voters
to obtain th e requisite SB14 ID. The d istric t court held, and th is Court
affirm ed, th a t SB14’s d iscrim inatory im pact w as caused not only by the
L eg isla tu re’s selection of required IDs th a t m inority voters
disproportionately lack, b u t also by disproportionate obstacles to
74
obtaining th e requ isite SB14 ID. V ea sey ll, 830 F.3d a t 250-56. Among
the m any obstacles facing voters—and particu larly low incom e people,
who in tu rn , are disproportionately Black and Latino T exans—the
d istric t court noted, and th is Court credited, evidence th a t “hundreds of
thousands of voters face round-trip trave l tim es of 90 m inutes or more to
the n ea rest location issu ing EICs.” Id. a t 251.
D espite both the d istric t court and th is Court’s concern w ith
disproportionately unequal access to SB14 ID, SB5 did not m eaningfully
address th is problem. R ather, it continued a program th a t the record
evidence showed failed to help voters access the necessary ID: like SB14,
SB5 provides for free mobile un its to provide election identification
certificates th a t can be used “a t special events or a t the request of a
constituent group.” ROA.69812. As the distric t court explained, th is
provision was insufficient to resolve the problem s in access to SB14 ID:
Mobile EIC u n its w ere originally offered w ith SB14.
However, the evidence a t tr ia l w as th a t they were too
few and far-betw een to m ake a difference in the ra te s of
qualifying voters. T heir mobile n a tu re m ade notice and
d u ra tion m ajor factors in th e ir effectiveness . . . . Yet
no th ing in SB5 addresses the type of advance notice th a t
would be given in order to allow voters to assem ble the
necessary docum entation they m ight need in tim e to
m ake use of the u n its . . . . SB5 contains no provisions
regard ing the num ber of mobile EIC u n its to be
75
fu rn ished or the funding to m ake them available.
R equests for them can be denied for undefined,
subjective reasons, placing too m uch control in the
discretion of individuals.
ROA.70442-43. For the sam e reasons, it is insufficient to resolve the
problem s in access to SB5 ID.
SB5 also does not address the voter confusion caused by Texas’s
in troduction of a sw eeping new voter photo ID system w ithout adequate
education. As th is Court noted w ith respect to SB14, “th e record is
rep le te w ith evidence th a t th e S ta te devoted little funding or a tten tio n to
educating voters about the new voter ID requ irem en ts.” Veasey II, 830
F.3d a t 256. Indeed, th is Court noted th a t SB14 w as “perhaps [the] m ost
poorly im plem ented voter ID law in the country.” Id. a t 256 n.52. The
d istric t court held, and th is Court affirm ed, “the S ta te ’s lack luster
education efforts resu lted in additional burdens on Texas voters.” Id. a t
256.
D espite th is adm onition, SB5 does not address public education
efforts a t all. There is no provision for any public education efforts in
SB5 and th e fiscal notes for th e bill indicate th a t “[n]o significant fiscal
im plication to the S ta te is an tic ipated .” Br. for U nited S ta tes as Appellee,
Doc. 00514212850 (“USA Br.”), a t 90-94. W ithout adequate education,
76
th e one am eliorative m easure SB5 does provide—th e DRI—will go u n d er
u tilized .31 Texas’s w illingness to ignore clear findings of th is Court
regard ing SB14’s failings w hen devising its supposed rem edy for those
failings dem onstrates a lack of good faith to repa ir the dam age caused by
SB14.
Based on the foregoing, the d istric t court correctly held th a t SB5
would not rem edy the d ispara te im pact of SB14’s required IDs and th a t
voters who lack com pliant ID will continue to be d isproportionately Black
and Latino. The d istric t court held th a t th e in itia l d isproportionate
im pact on m inority voters w as b y design. Thus, SB5 continues a
p u rp o se fu l d iscrim inatory im pact on m inority voters and m ust fail. See
D illard v. B aldw in Cnty. C om m ’n, 694 F. Supp. 836, 843 (M.D. Ala. 1988),
31 Texas and the U nited S ta tes argued to th e d istric t court and suggest
to th is Court th a t it should ignore the L eg isla tu re’s repeated failure to
provide for voter education because they have “publicly com m itted” to
spending $4 m illion dollars on educational efforts. ROA.698265
ROA.69998; USA Br. a t 19. Texas and the U nited S tates cite no au thority
for the proposition th a t the d istric t court w as required to credit th is
“public com m itm ent”—not requ ired by law, not binding on any officials,
and not even reduced to sw orn testim ony—particu larly in ligh t of the
record evidence of Texas’s abysm al failu re to properly educate voters in
th e past. There is no record evidence of how Texas plans to spend these
funds, w hether the education efforts will reach the m ost affected
com m unities, or any analysis th a t $4 million would be sufficient to
correct the m assive education failu res of the p as t four years.
77
a ffd 862 F.2d 878 ( l 1th Cir. 1988) (rejecting a s ta te proposed rem edy
th a t w as “still a product of the leg is la tu re’s in ten tiona l racial
d iscrim ination” and holding th a t “deleting ju s t one fea tu re of [a
discrim inatory] at-large system would [not] delete the invidious ta in t of
th is broad legislative schem e”); K irkse y v. Bd. o f Supervisors, 554 F.2d
139, 142 (5th Cir. 1977) (en banc) (holding th a t a law is “constitu tionally
im perm issible as racially d iscrim inatory if it is . . . racially m otivated . .
. or if it p erp e tu a tes an ex isten t denial of access by the racial m inority to
th e political process”); H u n ter ; 471 U.S. a t 232-33 (strik ing down racially
d iscrim inatory law even afte r the law ’s “more b la tan tly d iscrim inatory”
portions w ere removed).
3. SB5 subjects victims of intentional discrimination to
additional unnecessary procedures to vote.
The foregoing describes w hat SB5 failed to do. W hat SB5 does
provide is a sep ara te reasonable im pedim ent declaration procedure for
voting for those who lack SB14 ID. This procedure is no doubt a hard-
won im provem ent on SB 14, w hich disenfranchised indiv iduals w ithout
th e requ isite ID outrigh t. B ut the s tan d ard for rem edying an in ten tiona l
d iscrim ination violation is not simply to reduce d iscrim inatory resu lts.
Any rem edy Texas proposed m ust “place the victim s of d iscrim ination in
78
‘the position they would have occupied in the absence of d iscrim ination .”’
Virginia, 518 U.S. a t 565. On th a t count, SB fails.
SB5’s DRI not only requ ires voters who m ay have been the victim
of SB14’s in ten tiona l d iscrim ination to fill ou t sep ara te paperw ork bu t
also to a tte s t under d irect th re a t of a s ta te ja il felony (punishable by up
to two years of im prisonm ent) to a subjective and lim ited num ber of
im pedim ents, w ithout th e option to explain a non-delineated obstacle to
obtaining ID in th e ir own words. The d istric t court clearly described the
p articu la r problem s w ith requ iring voters to sw ear under penalty of
felony charges not ju s t to th e ir nam e and o ther objective facts bu t to one
of th e seven pre-selected “im pedim ents” to obtain ing ID in order to vote:
L isting a lim ited num ber of reasons for lack of SB 14
[w ithout an “o ther” option] is problem atic because
persons u n tra in ed in the law and who are subjecting
them selves to penalties perjury m ay tak e a restric tive
view of the listed reasons. Because of ignorance, a lack
of confidence, or poor literacy, they m ay be unable to
claim an im pedim ent to which they are en titled for fear
th a t th e ir opinion on the m a tte r would not com port w ith
a tra in ed prosecu tor’s legal opinion.
79
ROA.70446. Indeed, du ring th e 2016 cycle, m any voters felt th e need to
describe th e ir im pedim ent in th e ir own words. ROA.70246-49. 32
However, th e L egislature increased th e pena lty for a false s ta tem en t on
the DRI to a “s ta te ja il felony” and requ ired th e form itse lf to include a
notice of the po ten tia l for prosecution. ROA.69813—17.
W hile Texas relies heavily on th e preclearance of South C arolina’s
reasonable im pedim ent declaration procedure, the South C arolina
procedure gave voters th e option of w riting down “any reason”
w hatsoever for th e ir reasonable im pedim ent and it had to be accepted.
Sou th Carolina v. U nited S ta tes, 898 F. Supp. 2d 30, 36 (D.D.C. 2012)
(“[A]ny reason asserted by the voter on th e reasonable im pedim ent
affidavit for not having obtained a photo ID m ust be accepted. . . . [T]he
reasonableness of the lis ted im pedim ent is to be determ ined by the
32 Texas argues th a t the DRI declarations th a t P laintiffs en tered into the
record are im perm issible “h ea rsay ” while argu ing th a t th is Court should
rely on the DRI declarations i t p u t into th e record. Texas cannot have it
both ways and the d istric t court w as correct to consider all the
declarations p u t into the record. Tex. Br. a t 27-28, 61. In any event,
P laintiffs did not in troduce th e declarations for proof of th e underly ing
voters’ circum stances b u t ra th e r to show th a t m any voters w ith
reasonably s ta ted im pedim ents felt the need to w rite in th e ir own ra th e r
th an rely on the seven pre-selected listed im pedim ents th a t SB5 would
only include. ROA.70247—49.
80
indiv idual voter So long as th e reason given by th e voter is not a
lie, an indiv idual voter m ay express any one of th e m any conceivable
reasons why he or she has not obtained ID.”). Indeed, the court’s order
in South C arolina requ ired the inclusion of an “o ther” box. Id. a t 40-41.
F u rth e r, to date, Texas has not provided any reason why requ iring
voters to sw ear under penalty of perjury to a set of p red is ted
im pedim ents serves its in te re s t in p reventing fraud or securing election
in tegrity . ROA.70447 (“In th e So u th Carolina case, th e s ta te w as to
follow up w ith voters who did not have qualified ID to assis t in getting
ID so th e re w as a logical reason to identify th e im pedim ent. Texas has
offered no reason to identify th e voter’s reasonable im pedim ent.”). T here
is certain ly no evidence th a t voters th a t “m isused” the o ther box by not
nam ing a “rea l im pedim ent” w ere not who they said they w ere, or
ineligible or unqualified to vote.
Sim ply put, requiring voters w ithout SB14 ID to a t te s t under
penalty of a “sta te ja il felony” to “a p articu la r im pedim ent to possession
of qualified ID—inform ation th a t is subjective, m ay not alw ays fit into
th e S ta te ’s categories, and could easily arise from m isinform ation or a
lack of inform ation from the S ta te itse lf as to w hat is requ ired” does not
81
place victim s of d iscrim ination in the position they would have been
absen t S B l4 ’s purposeful d iscrim ination .33 ROA.70449.
T he d is tr ic t c o u r t’s re a so n in g and an a ly s is m irro re d th e
F o u rth C irc u it’s re a so n in g u n d e r s im ila r c ircu m stan ces . In
M cC rory, th e F o u rth C irc u it ad d ressed w h e th e r a su b se q u en tly
en a c te d rea so n ab le im p e d im e n t a ff id av it p ro ced u re ad e q u a te ly
rem ed ied N o rth C a ro lin a ’s in te n tio n a lly d isc rim in a to ry v o te r photo
33 This set of provisions is particu larly problem atic given th e d istric t
court’s findings—supported by contem porary testim ony—th a t
“[m in o ritie s [in Texas] continue to have to overcome fear and
in tim idation w hen they vote.” Veasey, 71 F. Supp. 3d a t 636 (“Reverend
Johnson testified th a t th e re are still Anglos a t the polls who dem and th a t
m inority voters identify them selves, telling them th a t if they have ever
gone to jail, they will go to prison if they vote.”); id. a t 675 (“F ear of law
enforcem ent by [m inority voters] is w idespread and justified .”);
ROA.70448 (finding the th re a t of perjury particu larly harm fu l in light of
th e record evidence of “th re a ts and in tim idation aga inst m inorities a t the
polls—particu larly having to do w ith th rea ts of law enforcem ent and
crim inal penalties”); see also M cIntosh Cnty. B ranch o f th e N A A C P v.
C ity o f D arien, 605 F.2d 753, 758 (5th Cir. 1979) (rem anding for
reconsideration of the “in tim idat[ion]” and “fear” experienced by some
Black voters); Common Cause/Georgia v. B illups, 406 F. Supp. 2d 1326,
1369 (N.D. Ga. 2005) (finding th a t voters w ithout photo ID would be
“re lu c tan t” to sign an affidavit th a t may contain a m isstatem ent); H arris
v. Siegelm an, 695 F. Supp. 517, 525—26 (M.D. Ala. 1988) (finding th a t
provision requiring a d isproportionately Black class of undereducated
voters to sw ear to illiteracy created an atm osphere of “in tim ida tion”).
82
ID law . 831 F .3d a t 240. I t found th a t i t d id not. Id . The C ourt
co rrec tly observed , “even if th e S ta te w ere ab le to d e m o n s tra te th a t
th e a m e n d m e n t le ssen s th e d isc rim in a to ry effect of th e photo ID
re q u ire m e n t, it w ould no t re lieve us of ou r o b lig a tio n to g ra n t a
com plete rem ed y in th is ca se .” Id . T he F o u rth C ircu it th e n
ex p la in ed w hy th e re a so n a b le im p ed im en t p ro ced u re im posed
u n ac ce p tab le lin g e rin g b u rd e n s on v ic tim s of ra c ia l d iscrim ination^
For exam ple, th e record shows th a t under the
reasonable im pedim ent exception, if an in-person voter
cannot p resen t a qualifying form of photo ID—which
A frican A m ericans are more likely to lack—the voter
m ust u n d ertak e a m ulti-step process . . . . On its face,
th is am endm ent does not fully elim inate the burden
im posed by th e photo ID requirem ent. R ather, it
requ ires voters to take affirm ative steps to justify to the
s ta te why they failed to comply w ith a provision th a t we
have declared w as enacted w ith racially discrim inatory
in te n t and is unconstitu tional.
Id. a t 240-41 (in ternal citations and quotations om itted). The only
difference here is th a t th e d istric t court engaged in a more detailed and
record-based analysis of the rem ain ing burdens SB5’s specific reasonable
im pedim ent procedure places on m inority voters.
83
4. Viewed in its proper context, SB5 does not remedy the
violations.
U ltim ately, Texas and th e U nited S ta tes ask th is Court to view SB5
in isolation because th a t is th e only w ay it could possibly pass m uster.
B ut th a t would be en tire ly im proper. This procedure m ust be viewed in
light of th e fact th a t those who m ust use it are d isproportionately victim s
of in ten tiona l discrim ination.
D espite Texas and th e U nited S ta te s ’ claim s to the contrary, d istric t
courts have routinely scru tin ized s ta te rem edial p lans and o ther
subsequent legislation to determ ine w hether they adequately rem edy
adjudicated constitu tional violations. Id.', see also C ity o f P ort A r th u r v.
U nited S ta tes, 459 U.S. 159 (1982) (holding th a t “in light of th e prior
findings of d iscrim inatory purpose,” the court’s elim ination of the
m ajority vote requ irem en t in th e proposed rem edial p lan “w as a
reasonable hedge aga inst th e possibility th a t th e [remedial] scheme
contained a purposefully d iscrim inatory elem ent”); Louisiana, 380 U.S.
a t 154-155 & n.17 (enjoining an unconstitu tional literacy te s t and a new
subsequently enacted te s t because, even if the new te s t w as non-
d iscrim inatory, it p erp e tu a ted th e discrim inatory burdens placed on
Black voters by the prior test); R eynolds v. S im s, 377 U.S. 533, 586-87
84
(1964) (holding th a t the d istric t court acted property in allowing the
leg isla tu re to craft an in te rim rem edy to address reapportionm ent, but
invalida ting it as an inadequate perm an en t remedy); Cane v. W orcester
Cnty., 35 F.3d 921, 927 (4th Cir. 1994) (in rem edying a VRA Section 2
violation, “[i]f the legislative body fails to respond or responds w ith a
legally unacceptable rem edy, th e responsibility falls on the D istric t Court
to exercise its discretion in fashioning a n ea r optim al p lan .” (in ternal
quotations omitted)); see also Covington v. N orth Carolina , No.
F15CV399, 2017 WL 4162335, a t *15 (M.D.N.C. Sept. 19, 2017)
(adopting schedule th a t provided court w ith additional tim e to review
leg isla tu re’s rem edial p lan so th a t “if necessary ,” th e court could “impose
[its] own rem edial p lans”).
For all the foregoing reasons, the d istric t court w as justified in
holding th a t SB5 “fall[s] far short of m itigating the discrim inatory
provisions of SB 14,” (ROA.70433), and enjoining SB14 and SB5’s
am endm ents to SB14. ROA.70456. To do any th ing else would continue
to bu rden victim s of in ten tiona l d iscrim ination in th e ir access to th e righ t
to vote, “th is tim e w ith the im p rim atu r of a federal court.” D illard, 694
F. Supp. a t 844 (in ternal quotations om itted).
85
C. Texas And The United States Have Identified No Abuse Of
Discretion In The District Court’s Remedy
U nable to a ttack th e logic of the d istric t court’s opinion, Texas and
th e U nited S ta tes level five legally baseless a ttack s on th e d istric t court’s
injunction, none of which comes close to dem onstra ting an abuse of
discretion.
F irst, Texas argues th a t the d istric t court was requ ired to impose a
rem edy “as narrow as possible.” Tex. Br. a t 56.34 B ut given th e distric t
court’s finding of in ten tiona l racial d iscrim ination, the court could not
have crafted narrow er relief. “[T]he n a tu re of the violation determ ines
th e scope of the rem edy.” Sw ann v. C harlo tte-M ecklenburg Bd. o fE duc.,
402 U.S. 1, 16 (1971). A full and p erm anen t in junction is th e narrow est
possible rem edy w hen a court finds th a t a law was m otivated by
d iscrim inatory in ten t, because such laws have “no legitim acy a t all under
our C onstitu tion .” Richm ond,, 422 U.S. a t 378; see also H unter, 471 U.S.
a t 231-33 (affirm ing invalida tion of s ta te constitu tional provision
adopted w ith d iscrim inatory in tent); W ashington v. S e a ttle Sch. D ist. No.
34 Critically, th e U nited S ta te s concedes th a t in ten tiona l discrim ination
necessita tes a full injunction. USA Br. a t 35-36.
86
1, 458 U.S. 457, 484-87 (1982) (affirm ing p erm anen t injunction of s ta te
in itia tive adopted w ith discrim inatory in ten t).
Texas relies on A y o tte v. P lanned P arenthood o f N . N ew E ngland ,
546 U.S. 320 (2006), and R egan v. Time, Inc., 468 U.S. 641 (1984), bu t
neither case involved in ten tio n a l racial discrim ination, so th e “n a tu re of
the violation[s]” in those cases m ay have justified a narrow er rem edy
th an h ere .35 Sw ann, 402 U.S. a t 16. In any event, in Regan, th e Court
held th a t only certain provisions of a law w ere un re la ted to and therefore
severable from th e law ’s invalid provisions, 468 U.S. a t 659, an approach
com pletely consisten t w ith the d istric t court’s injunction, which severs
section 16 from th e re s t of SB14. And Texas com pletely m isconstrues the
p lu rality opinion in S a la za r v. Buono, 559 U.S. 700 (2010), w hich involved
a law enacted for a leg itim ate, not illicit, purpose. Id. a t 715-18.
Second, Texas suggests th a t the d istric t court lacked au th o rity to
enjoin SB5 because th e re is no pending claim aga inst SB5. Tex. Br. a t
35 For th is reason, th e C ourt should also reject the suggestion by A m ici
S ta tes th a t it is inap p ro p ria te to rem edy “individual violation th rough
broad-based facial invalida tion .” Brief of th e S ta tes of Ind iana, e t ah,
Doc. 00541209170, a t 21. W hatever the m erits of th is argum en t in cases
like Crawford, involving only the effects of a photo ID law und er the
analytically d istinct A nderson-B urd ick s tandard , a law passed w ith
discrim inatory in te n t m u st be invalidated in its entirety .
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57-58. W ere th is true, civil rig h ts p laintiffs would be forced to play a
h igh-stakes gam e of whack-a-mole, im posing substan tia l, unnecessary
litigation costs and indefinitely delaying th e possibility of m eaningful
relief for even the m ost odious legal violations. The d istric t court has
in h eren t equitable au tho rity to determ ine w hether an express a ttem p t
by the leg isla tu re to rem ediate judicially-determ ined d iscrim ination
cures the discrim ination, see M iss. S ta te C hapter, O peration P ush , Inc.
v. M abus, 932 F.2d 400, 407 (5th Cir. 1991), and th is Court specifically
directed the d istric t court to consider any in terven ing legislative action
in its determ ination of rem edies, Veasey II, 830 F .3d a t 271.
Indeed, in Salazar, the p lu ra lity expressly recognized th a t courts
re ta in au tho rity to enjoin rem edial legislation, even w hen those new laws
were not th e ta rg e t of the original com plaint. 559 U.S. a t 718. “The
relevan t question is w hether an ongoing exercise of the court’s equitable
au tho rity is supported by th e prior showing of illegality, judged aga inst
the claim th a t changed circum stances have rendered prospective relief
inappropria te .” Id.', see also O peration P ush, 932 F.2d a t 407 (holding
th a t the court m ust determ ine w hether a “newly enacted s ta tu te ”
tendered as “a rem edy for the violations” itse lf “violate [s] s ta tu to ry
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provisions or the C onstitu tion”). T h at is w hat the d istric t court did
here .36
U nable to prove as a general m a tte r th a t courts lack au th o rity to
enjoin rem edial legislation absen t newly pled claims, Texas also seem s to
im ply th a t th is Court, in V easey II, preluded the d istric t court from
enjoining any rem edial legislation on rem and. Tex. Br. a t 57. B ut V easey
I I said noth ing of the sort. In th e sentence Texas quotes, the C ourt s ta ted
th a t “[a]ny concerns about a new bill would be the subject of a new appeal
for ano ther day.” 830 F.3d a t 271. T h at new appeal is th is one, and th a t
o ther day is now. For its part, th e U nited S ta tes seem s sim ilarly to
suggest th a t th is C ourt’s opinion in Veasey I I a lready definitively
approved a photo ID law w ith a DRI procedure. USA Br. a t 30, 36—37.
The C ourt’s m ere observation, “[biased on suggestions in oral a rg u m en t
36 Citing th e principal opinion in W ise v. L ipscom b, 437 U.S. 535 (1978)—
which only two justices joined—and W estwego C itizens fo r B e tte r G ov’t
v. C ity o f W estwego, 946 F.2d 1109 (5th Cir. 1991), Texas and th e U nited
S ta tes argue th a t courts, w here possible, should allow the leg isla tu re to
craft rem edies, and th a t a legislative rem edy rem ains “governing law
unless it, too, is challenged and found to violate th e C onstitu tion .” Tex.
Br. a t 56; USA Br. a t 41. B ut noth ing in W ise or W estwego suggests th a t
any “challenge” to rem edial legislation—even in a case involving
in ten tional racial d iscrim ination— m ust come via a newly filed com plaint
ra ising new claim s specifically directed a t the new law ra th e r th a n via
rem edial proceedings in th e case challenging th e preexisting law.
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[that] appropriate am endm ents m ig h t include a. reasonable im pedim ent
or indigency exception” is a far cry from holding as a m a tte r of law th a t
SB5’s DRI is sufficient on its own to rem edy in ten tio n a l racial
discrim ination. Veasey II, 830 F.3d a t 270 (em phasis added).37
Texas also cites the opinion of the m otions panel th a t g ran ted a stay
of th e d istric t court’s in junction pending th is appeal. Tex. Br. a t 57. But
th a t opinion does not bind th is m erits panel. Moreover, th e m otions
panel w as wrong to suggest th a t the d istric t court lacked au th o rity on
rem and to enjoin SB5. In Veasey II, th is C ourt an tic ipated th a t the
L egislature m ight act, b u t nonetheless au thorized the d istric t court to
“reeva luate the evidence re levan t to d iscrim inatory in te n t” and
“im plem ent any rem edy arising from such reevaluation” afte r the
N ovem ber 2016 election. 830 F.3d a t 272. I t w as perfectly consistent
w ith th is m andate for th e d istric t court to reject SB5 as an adequate
rem edy for th e in ten tiona l racial discrim ination infecting SB14.
37 The reasonable im pedim ent affidavit was one of several suggestions
m ade by th is Court. S ee Veasey II, 830 F.3d a t 270-71. As noted above,
ano ther w as the use of the voter reg istra tion card m ailed to all voters as
an a lte rn a tiv e to SB14 ID. Id. a t 271 n.72. Texas did not adopt th is
suggestion.
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Third, Texas and th e U nited S ta tes com plain th a t the d istric t court
“enjoined SB5 w ithout any evidence th a t SB5 had a d iscrim inatory
purpose or effect.” Tex. Br. a t 571 see also USA Br. a t 37, 40—41, 53—55.
As explained supra a t P a r t III.B, however, the d istric t court
appropriate ly recognized th a t rem edial legislation is “in p a r t m easured
by the historical record, in p a rt m easured by difference from the old
system , and in p a rt m easured by prediction,” ROA.70438 (quoting
D illard , 831 F.2d a t 250), and cited extensive record evidence to support
its conclusion th a t SB5 w as infected by and perpetuated the sam e
in ten tiona l racial d iscrim ination th a t p lagued SB 14.
Texas points to th e d istric t court’s supposed “acknowledge[ment]
th a t ‘the record holds no evidence regard ing th e im pact of SB5’s [DRI ],”
and suggests th a t “w ithout an ongoing d iscrim inatory effect from SB14,
th e re can be no ongoing discrim inatory purpose or any basis to inquire
into the legislative m otivation behind SB14.” Tex. Br. 57-58 (quoting
ROA.70439). This a rg u m en t is both m isleading and wrong. I t is
m isleading because, in th e sentence Texas quotes, the d istric t court was
not “acknowledging” th a t it lacked any ev identiary basis to evaluate
SB5’s DRI—the d istric t court was observing the lack of any record
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evidence suggesting th a t the in te rim rem edy’s DRI fully cured th e photo
ID law ’s racially d iscrim inatory effects. ROA.70439. Texas’s argum ent
is wrong because SB5 does not fully remove the discrim inatory resu lts of
SB14. S ee supra a t P a r t III.B . The d istric t court spent seven full pages
addressing SB5’s DRI in ligh t of the record, u ltim ately concluding th a t
the DRI w as insufficient to cure the law ’s ills. ROA.70444-50.
F ourth , Texas and th e U nited S ta tes m ain ta in th a t th e distric t
court im properly shifted th e bu rden of proof on th e validity of SB5 from
P rivate P lain tiffs to the S tate . Tex. Br. a t 58—60; USA Br. a t 48-53. But
it is b lack-letter law th a t Texas, having been found liable, has th e burden
of proof on th is rem edial question. In U nited S ta te s v. Virginia, for
example, th e Court, afte r invalida ting a s ta te policy on grounds of
unconstitu tional gender discrim ination, considered the sufficiency of a
rem edy proposed by th e S tate . 518 U.S. a t 547. “H aving violated the
C onstitu tion’s equal protection requ irem en t,” the Court explained,
“V irginia w as obliged to show th a t its rem edial proposal directly
addressed and re la ted to th e violation . . . .” Id. (in ternal quotations
om itted). The Court held th a t V irginia had failed to carry th is burden.
Id. a t 547-56. A t no point did the Court ever contem plate th a t th e burden
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m ight in stead fall on the plaintiffs to disprove th e sufficiency of V irginia’s
proposed rem edy.38 See also G reen, 391 U.S. a t 439 (following finding of
unconstitu tional school segregation, bu rden w as on the school board to
prove th e sufficiency of an im plem ented remedy).
Texas and the U nited S ta tes lean heavily on O peration Push, (Tex.
Br. a t 59—60; USA Br. a t 48-50), bu t no th ing in th a t case shifted the
bu rden to p laintiffs to prove the insufficiency of rem edial leg islation—
nor could th a t case have done so, given th e binding Suprem e Court
precedent discussed above. In the sections of O peration P ush cited by
Texas, (Tex. Br. a t 59-60), the Court addressed only the tim ing of
rem edial re lief (i.e ., the principle th a t, w here feasible, th e leg isla tu re
should be provided an opportunity to proffer a rem edial p lan before the
Court o rders one) and the appropriate legal s tan d a rd for determ in ing the
sufficiency of a legislative rem edy {i.e., th e principle th a t rem edial
38 The U nited S tates m akes m uch of th e fact th a t V irg in ia’s proposed
rem edy also m ade a suspect sex-based classification, th u s p erp e tu a tin g
the constitu tional violation plaguing th e orig inal policy. USA Br. a t 5 0 -
52. B ut th a t has nothing a t all to do w ith w hether th e Court, in the first
instance, im posed the burden on th e p lain tiffs to prove liab ility all over
again as if th e original policy did not exist, or w hether th e S ta te instead
had the bu rden to prove th a t its rem edy fully cured the constitu tional
infirm ities p laguing the preexisting policy. N othing in Virginia lim its
th a t ru le to challenges involving suspect classifications.
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leg islation is sufficient so long as it appropriate ly rem edies the
constitu tional harm s, even if b roader relief m ight have been conceivable),
not the bu rden of proof on rem edial legislation. 932 F.2d a t 405-07. The
d istric t court’s approach here w as entirely consistent w ith both of those
princip les: th e L egislature had th e opportunity to proffer a rem edial plan
(SB5), and th e d istric t court rejected th a t p lan because it p erpe tua ted
SB14’s unconstitu tional d iscrim inatory harm s.
Indeed, in language Texas and the U nited S tates ignore, th e Court
in O peration P ush found th e rem edial legislation sufficient only because
the s ta te had carried its bu rden of showing th a t the new law “would have
a positive effect on voter reg istra tion ,” th u s rem edying th e racially
d iscrim inatory resu lts of the ea rlie r law. 932 F.2d a t 407. In any event,
O peration P ush did not involve a finding of in ten tiona l discrim ination; it
in stead involved a d iscrim inatory resu lts finding. Id. 401-02. Even if,
con trary to se ttled law, a p la in tiff has th e burden of proof on the
sufficiency of rem edial legislation for purposes of a d iscrim inatory resu lts
claim, th e sam e would not be tru e of legislation designed to cure
in ten tiona l d iscrim ination. A fter all, an in ten tionally d iscrim inatory law
m ust be “elim inated root and branch .” G reen, 391 U.S. a t 437—38. There
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is no space to allow the s ta te to repackage an in ten tionally discrim inatory
law under th e guise of a legislative rem edy.39
Fifth, and finally, Texas and th e U nited S tates argue th a t the
d istric t court abused its discretion by focusing on two aspects of SB5’s
DRP the om ission from SB5’s DRI of the “o th e r” box th a t had appeared
on the in te rim rem edy’s DRI, and language on SB5’s DRI em phasizing
heightened crim inal penalties for false s ta tem en ts . Tex. Br. a t 60-63;
USA Br. a t 37-40. Texas’s only answ er to th e d istric t court’s well-
reasoned concerns about th e rem oval of th e “o ther” box and the
heightened crim inal penalty is to point to a few handfuls of DRIs out of
39 Texas and th e U nited S tates, (Tex. Br. a t 59—60; USA Br. a t 48), stress
the C ourt’s sep ara te observation th a t th e plaintiffs had “failed to offer
objective proof th a t the new procedures would have inadequate effect on
reg istra tion ra te s .” O peration P ush , 932 F.2d a t 407. B ut in context, it
is clear th a t th e Court w as not suggesting th a t the plaintiffs had the
burden of proving an “inadequate effect on reg istra tion ra te s” absen t a
sufficient showing by th e S ta te th a t th e new law would have a positive
rem edial effect. Id. The U nited S ta tes also points to th e holding in
O peration P ush th a t th e plaintiffs “failed to estab lish th a t the
leg isla tu re’s decision not to adopt more generous legislation evinced a
d iscrim inatory purpose.” USA Br. a t 49. B ut of course the plaintiffs in
th a t case had th e bu rden to prove d iscrim inatory purpose in the first
instance. Indeed, the d istric t court expressly recognized here th a t the
burden would fall d ifferently if P rivate P lain tiffs had filed a separate
law suit ra is ing a new VRA claim aga inst SB5. ROA.70438-39.
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approxim ately 16,000 cast w here voters used the “o ther” box to list
arguably questionable reasons or to p ro test SB14. Tex. Br. a t 60-62.
Even if, as Texas suggests, a sm all num ber of voters may have used the
“other” box for im proper purposes, the d istric t court hard ly abused its
discretion by focusing on the thousands of voters who did not. And even
if, as Texas also suggests, the reasons s ta ted on a t least some of th e DRIs
subm itted by P riva te P lain tiffs m ay have fit w ith in an existing SB5
category, (Tex. Br. a t 61-62), Texas ignores th e d istric t court’s reasonable
observation th a t th e proper scope of those categories is highly
am biguous—m any voters m ay not have felt com fortable using an existing
category, particu larly w hen faced w ith an overt th re a t of felony
prosecution for m aking a m issta tem en t. ROA. 70446-47.
The U nited S ta te s—b u t not Texas— adds th e argum ent th a t the
record failed to su b s tan tia te any racially d iscrim inatory effect from
elim ination of th e “o ther” box. USA Br. a t 38-39. But, as explained supra
a t P a rt III.B, Texas, not P riva te Plaintiffs, has th e burden of proof on the
sufficiency of any rem edial legislation. Thus, P laintiffs did not need to
prove th a t every aspect of SB5 has an independent racially
discrim inatory effect, as the U nited S ta tes seem s to suggest. M oreover,
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th e U nited S ta tes m isses the point. It will be d isproportionately m inority
voters th a t have to use the DRI, so its defects will n a tu ra lly fall
d isproportionately on those voters. The d istric t court’s in junction is
sound so long as Texas failed to show th a t SB5 in its en tire ty—including
a DRI w ithout the “o ther” box—failed fully to cure th e racial
d iscrim ination plaguing SB 14.
Nor did the distric t court abuse its discretion in concluding th a t
“[t]here is no legitim ate reason in the record to require voters to s ta te
such im pedim ents under penalty of perju ry”—heightened to a s ta te ja il
felony—“and no au thority for accepting th is as a way to ren d er an
unconstitu tional requ irem ent constitu tional.” ROA.70448. Texas points
to language on the in terim rem edy’s DRI also referencing th e possibility
of prosecution for perjury, (Tex. Br. a t 62), b u t P riva te P lain tiffs never
asserted th a t the DRI provided in the in te rim rem edy constitu ted all
relief to which they would u ltim ately be entitled . To the contrary , w hen
agreeing to the in terim rem edy, all p arties “preservetd] th e ir rig h ts to
seek or oppose fu tu re relief.” ROA.67879. Texas also in sis ts th a t
heightened s ta te penalties are m erely duplicative of federal penalties for
perjury, (Tex. Br. a t 63), but, as the d istric t court recognized, the false
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inform ation subject to perjury under federal law is objective facts such as
nam e, address, and period of residence, not, as SB5 would have it,
inform ation th a t is subjective and m ay not always fit nea tly w ith in
Texas’s am biguous categories. ROA.70449. T h at is also why th e U nited
S ta tes is wrong to lean on “S.B. 5’s in ten t s tan d a rd ”: even if SB5 imposes
penalties only for “in te n tio n a lly m aking a false s ta tem en t or providing
false inform ation,” (USA Br. a t 40), the d istric t court reasonably
concluded th a t voters m ay nonetheless fear th a t th e S ta te will construe
th e ir honest answ ers as m isleading and bring charges on th is basis.
ROA.70446-47.
Texas and the U nited S ta te s rely on Sou th Carolina v. U nited
S ta tes, (Tex. Br. a t 63; USA Br. a t 46-47), bu t th a t case does not p resen t
a com parable situation . There, th e court m ade no finding of in ten tiona l
discrim ination; the court w as concerned only w ith w hether South
C arolina’s photo ID law would have a “discrim inatory retrogressive
effect” under Section 5 of the VRA. Sou th Carolina, 898 F. Supp. 2d a t
38-43. And th e re w as su b stan tia l evidence in th a t case suggesting th a t
th e new law would not have a retrogressive effect. Id. U nlike SB14 and
SB5, “the South Carolina voter ID law expanded th e types of IDs th a t
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could be used, m ade getting the IDs m uch easier th a n . . . prior to the
law ’s enactm en t . . . and contained detailed provisions for educating
voters and poll w orkers regard ing all new requ irem en ts.” ROA 70447
n.16. M oreover, the court in S o u th Carolina em phasized th a t the DRI
procedure allowed a vo ter to claim any tru e reason w hatsoever in order
for his or h er vote to be counted; th e voter w as not lim ited to a list of set
categories. 898 F. Supp. 2d a t 34, 40-41.
The U nited S ta tes responds by insisting th a t South C arolina still
has a more restric tive lis t of acceptable photo IDs th a n Texas. USA Br.
a t 46. But, under the Section 5 retrogression standard , the photo ID law ’s
expansion of perm issible IDs tended to support preclearance, however
restric tive th e preexisting baseline. M oreover, th e m any o ther
am eliorating featu res of South C arolina’s law —in particu lar, its DRI
procedure—m ake its law far less stric t th a n Texas’s. The U nited S tates
also em phasizes th a t a voter in South C arolina who uses the DRI m ay
cast only a provisional ballot, b u t th is a rgum ent ignores th a t the “county
board [in South Carolina] shall find [a provisional ballot] valid unless it
has grounds to believe th e affidavit is false.” Sou th Carolina , 898 F.
99
Supp. 2d a t 34 (in ternal quotations om itted). In function, then , the
provisional ballot operates as a regu lar ballot.
In sum , Texas and the U nited S ta tes have failed to identify any flaw
in the d istric t court’s in junctive order b a rrin g enforcem ent of SB 14 and
SB5’s am endm ents to SB14 and re tu rn in g the s ta te to th e p re_SB14
voter-identification regime. In junctive re lief w as th e only appropriate
rem edy in response to th e d istric t court’s w ell-supported finding of
in ten tional racia l discrim ination. To be clear, ne ith er P riva te P laintiffs
nor the d istric t court have suggested th a t th e L egislature cannot revisit
the issue of voter identification and enact a new law changing the voter
identification protocols, or th a t any new law cannot include a photo ID
requ irem ent or a reasonable im pedim ent declaration procedure. Indeed,
the d istric t court specifically deferred to th e L eg isla tu re’s ability to
revisit th is issue. ROA.70451—52. W hat th e d istric t court held is th a t
the rem edy for SB14’s in ten tiona l d iscrim ination cannot be a law th a t
perpetuates SB14’s precise d iscrim inatory fea tu res and th en subjects the
victim s of th e discrim ination to a procedure th a t requires them to a ttest,
under penalty of perjury, to a subjective and irre levan t set of facts,
w ithout even allowing those voters to use th e ir own words to do so.
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IV. THIS CASE IS NOT MOOT
Texas argues th a t SB5 rem edies SB14’s discrim inatory effects, and
th u s moots, and resu lts in a vaca tu r of, the en tire case—including th is
C ourt’s finding of a Section 2 resu lts violation, th e d istric t court’s finding
of a Section 2 and constitu tional in ten tiona l discrim ination violations,
and P riva te P la in tiffs’ en titlem en t to rem edies for those violations.
P erm ittin g jurisd ictions to moot a case in th is m an n er would
underm ine th e “essen tia l justification” for th e VRA which w as to reduce
“the ino rd inate am ount of tim e and energy required to overcome the
obstruction ist tactics invariably encountered in [voting rights] law su its .”
So u th Carolina v. K atzenbach, 383 U.S. 301, 315, 328 (1966). The VRA
“a tta c k e d ] th e problem s of S ta tes going from one d iscrim inatory system
to ano ther.” Young v. Fordice, 520 U.S. 273, 285 (1997). U nder Texas’s
m ootness theory, however, its leg isla tu re could (as it did) in ten tiona lly
pass and im plem ent a discrim inatory law and (as it has been) be found
liable of d iscrim inatory resu lts—b u t th en escape its obligation to redress
the harm s flowing from th e law ’s discrim inatory resu lts and in ten t
(including prospective Section 3(c) relief) by am ending th a t law years
la te r purported ly to am eliorate th e prior law ’s discrim inatory resu lts . A
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b ip a rtisan Congress passed th e VRA to protect voters from such a ttem p ts
by s ta tes to perpetually evade liability and th e obligation to red ress the
harm s of in ten tiona l d iscrim ination in voting by providing only p artia l
am eliorative relief directed a t fu tu re in juries. See H.R. Rep. No. 89-439
a t 9 -10 (1965) (“[E]ven afte r ap p aren t defeat resis ters seek new ways
and m eans of d iscrim inating .”). No court has ever accepted so outrageous
a proposition, as it would allow a leg isla tu re th a t has in ten tionally
d iscrim inated aga inst m inority groups to escape judicial opprobrium and
liability for its pernicious act sim ply by am eliorating some of the prior
law ’s discrim inatory resu lts. No read ing of th e m ootness doctrine
perm its th a t re su lt.40
A. Private Plaintiffs Are Entitled To Additional Remedies
“A case becomes moot <m/ywhen it is im possib le for a court to g ran t
any effectual relief w hatever to the prevailing party .” K nox v. Serv.
E m ps. I n t i Union, Local 1000, 132 S. Ct. 2277, 2287 (2012) (in ternal
quotations om itted) (em phasis added); see also E llis v. Ry. C lerks, 466
U.S. 435, 442 (1984) (“[A]s long as the parties have a concrete in te rest,
how ever sm all, in the outcome of the litigation, the case is not moot.”);
40 U nlike Texas, the U nited S ta tes does not claim th a t th is case is moot.
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O peration Push, 932 F.2d a t 409 (adjudication of a Section 2 claim was
“not moot because the decision under the 1988 Act w as th e rem edy
decision growing out of th e [Section 2 liability] holding und er th e 1984
Act”). As dem onstrated in P a r t III, supra, SB5 fails to rem edy e ither the
discrim inatory in ten t or th e d iscrim inatory effects violations, and th a t
discussion is incorporated herein . As such, a t stake in th e outcome of
th is litigation for P riv a te P lain tiffs is the full relief to which they are
entitled .
1. Private Plaintiffs have a concrete, live interest in a
finding that SB 14 is intentionally discriminatory.
R egardless of w h e th e r SB5 is adequate rem edy for SB14’s
in ten tional d iscrim ination (and it is not), th is case is not moot, and th is
Court should affirm th e d is tric t court’s w ell-reasoned discrim inatory
in ten t finding. This C ourt h as recognized the need for a clear record of
past d iscrim ination ad jud ications in subsequent racial d iscrim ination
litigation. S ee Veasey II, 830 F.3d a t 232—33 & nn.14—15, 239—40 &
n n .27-29. In th a t context, therefore, P rivate P laintiffs are en titled to
prophylactic relief in th is case because of the finding of in ten tional
discrim ination, including: (a) a declaration of in ten tiona l discrim ination,
which, by itself, is a significant prophylactic rem edy ag a in st fu tu re
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discrim ination because it is an im portan t factor in the adjudication of
fu tu re d iscrim ination claims, see LU LAC , 548 U.S. a t 401 (identifying
“the h istory of voting-related discrim ination in the S ta te” as one po ten tia l
factor th a t a p la in tiff m ay show in a to ta lity of circum stances analysis to
prove a Section 2 claim (in ternal quotations omitted)); (b) an order
strik ing down SB 14; and (c) relief under Section 3(c) of the VRA, which
specifically provides for preclearance even w hen officials are no longer
in ten tionally discrim inating, 52 U.S.C. § 10302(c), and w hich rem ains
available regard less of any subsequen t legislation, Virginia, 518 U.S. a t
551 (the court m ust issue a rem edial “decree th a t will ‘b a r like
discrim ination in the fu tu re”’ (quoting Louisiana, 380 U.S. a t 154)).41
Texas argues th a t “a p la in tiff s requested rem edy has no bearing on
w hether an A rticle III in ju ry persis ts ,” and th a t P rivate P lain tiffs’
request for 3(c) relief “cannot avoid m ootness.” Tex. Br. a t 49—50.
However, every court to directly address th e issue has held th a t
subsequent am eliorative am endm ents do not moot voting righ ts
41 Section 3(c) of the VRA allows courts to requ ire jurisd ictions to obtain
preclearance review of specified voting changes for a certa in period of
tim e following a finding th a t the ju risd ic tion has violated the
C onstitu tion by engaging in in ten tiona l d iscrim ination on account of race
or color. 52 U.S.C. § 10302(c).
104
challenges to prior laws w here fu rth e r relief rem ains available. See
Blackm oon v. C harles M ix C nty., 505 F. Supp. 2d 585, 593 (D.S.D. 2007)
(holding p la in tiffs’ VRA claim s not m ooted by elim ination of challenged
d istric ts because of availability of relief und er Section 3(a) of th e VRA);
M iss. S ta te Chapter, O peration P ush v. A lla in , 674 F. Supp. 1245, 1247-
48 (N.D. Miss. 1987) (noting prior denial of motion to dism iss for
m ootness, despite am endm ent of s ta tu te s a t issue, because am endm ent
“did not com pletely elim inate” the challenged discrim inatory practices).42
M ost recently, a three-judge d istric t court in the W estern D istric t of
Texas rejected Texas’s argum ent th a t th e re-draw ing of red istric ting
p lans mooted p laintiffs’ in ten tiona l d iscrim ination claim ag a in st the
42 Texas relies on M cK in ley v. A bbott, 643 F.3d 403 (5th Cir. 2011), for
th e proposition th a t once a s ta te declares it will not enforce a s ta tu te , any
pending challenge to th a t s ta tu te becomes moot. Tex. Br. a t 41-42 . But
Texas oversta tes M cK in leys holding and again ignores how th e relief
sought affects the question of mootness. There, the p la in tiff sought only
a declaration th a t the s ta tu te w as unconstitu tional. 643 F.3d a t 405.
W hen the S ta te declared th a t it would not enforce the portion of the
s ta tu te the p la in tiff w as challenging because it had been declared
unconstitu tional more th a n 15 years prior, the court dism issed the
p la in tiffs claim as moot. Id. a t 406-07. As described supra, P riva te
P lain tiffs here seek more th a n declaratory relief, and unlike in M cK inley,
the declaratory relief th a t P rivate P lain tiffs do seek has a rem edial
function beyond sim ply finding the s ta tu te to be unconstitu tional—th a t
is, the declaration is a predicate to 3(c) of th e VRA and o ther relief.
105
original m aps, on the basis th a t “P laintiffs are still being harm ed by the
d istric ts d raw n w ith th a t in ten t, and P laintiffs have po ten tia l relief
availab le under § 3(c) for th a t harm .” P erez v. A bbott, 253 F. Supp. 3d
864, 875 (W.D. Tex. 2017).
P laintiffs, thus, have a live, concrete in te rest in a rem edy th a t fully
cures SB14’s discrim inatory in ten t.
2. Plaintiffs have a live, concrete interest in a full remedy
to discriminatory results.
Texas m ischaracterizes P riva te P lain tiffs’ claim s as restin g solely
on the theory “th a t a photo-ID voting requ irem ent w ithout an
accom m odation for poorer voters, such as a reasonable-im pedim ent
exception, im poses an unlaw ful bu rden” on those voters. Tex. Br. a t 34.
P riva te P lain tiffs have never argued th a t SB 14 would have been lawful
and constitu tional if only it had a reasonable-im pedim ent exception. To
th e contrary , P rivate P laintiffs have identified a m ultitude of sins in
SB 14, including the deliberate decision by the L egislature to re s tr ic t the
form s of acceptable photo IDs to those th a t are less likely to be possessed
by, and more burdensom e to obtain for, Black and Latino voters as
com pared to Anglo voters, as well as SB14’s drastically deficient
im plem entation . SB5 corrects none of those sins. S ee P a r t III.B(3),
106
supra. A dditionally, and as explained in P a r t III.B(4), supra, the
supposed correction Texas heralds, the reasonable-im pedim ent
exception, fails to fully am eliorate SB14’s d iscrim inatory results.
P laintiffs, thus, have a live, concrete in te re s t in a rem edy th a t fully cures
SB14’s discrim inatory resu lts .
B. The Adoption of SB5 in 2017 Does Not by Itself Automatically
Moot This Case
Texas takes its u n ten ab le a rgum ent a g ian t step fu rth er, baldly
asserting th a t, “the su b s tan tia l am endm ent to a challenged law moots a
challenge to the old law even if the new law m ay not com pletely rem edy
a p la in tiffs claim ed in jury .” Tex. Br. a t 44. The cases Texas relies on for
th is proposition are inapposite. Texas claim s th a t D iffenderfer v. Cent.
B a p tis t Church, 404 U.S. 412 (1972), estab lished a “general ru le th a t
repeal or su b stan tia l am endm ent moots a challenge to a s ta tu te .” Tex.
Br. a t 43. D iffenderfer estab lished no such rule. The Court m erely held
th a t, w here a la te r s ta tu te repealed a prior one and w here “[t]he only
re lie f so u g h t in the com plaint w as a declaratory judgm ent” th a t the prior
law is unconstitu tional, th e case “lost its characte r as a present, live
controversy.” 404 U.S. a t 414—15 (in ternal quotations om itted) (em phasis
added). All of the cases Texas cites sim ilarly hold th a t m ootness is
107
always determ ined by reference to the in juries alleged and the rem edies
sought.43 S ee K nox, 132 S. Ct. a t 2287 (“A case becomes moot only w hen
it is im possible for a court to g ran t any effectual relief w hatever to the
prevailing p arty .” (in te rn a l quotations omitted)); see also In re
C orrugated C ontainer G rand Jury, 659 F.2d 1330, 1331 (5th Cir. U nit A
Oct. 1981) (‘“Im plem enta tion of m ootness principles requ ires a highly
individualistic, and usually in tu itive, app ra isa l of the facts of each case.’”
(quoting WRIGHT & MILLER, F e d . PRAC. & PROC. § 3533)). Here, the m ere
43 In N o rtheastern Florida C hapter o f A ssocia ted G eneral C ontractors o f
A m erica v. C ity o f Jacksonville, 508 U.S. 656 (1993), plaintiffs sought
only “declaratory and in junctive relief,” un like plaintiffs h ere—and, in
any event, th e claim s in th a t su it were held not to be moot. Id. a t 659,
662-63; see also L ew is v. C o n ti B a n k Corp., 494 U.S. 472, 478 (1990)
(holding th a t p la in tiffs Commerce C lause challenge was mooted by
changes to federal law “w hich m ake it clear th a t no m a tte r how the
Commerce C lause issues in th is su it are resolved the application can
constitu tionally be denied”); M assachusetts v. Oakes, 491 U.S. 576, 584
(1989) (finding overbread th challenge to crim inal s ta tu te mooted w here
am endm ent to challenged s ta tu te elim inated “the special concern th a t
an im ates th e overbread th doctrine”); P rinceton Univ. v. Schm id, 455 U.S.
100, 103 (1982) (finding th a t un iversity ’s appeal of decision strik in g down
regulation w as mooted w here lower court’s ru ling was based on absence
of s tan d ard s governing regulation, and un iversity had since am ended
regulation to include such standards); K rem en s v. B artley, 431 U.S. 119,
128-29 (1977) (finding th a t w here plaintiffs challenged constitu tionality
of a law, no fu rth e r rem edy was available afte r the complete repeal of
th a t law).
108
passage of SB5 has ne ith er ex tinguished P riv a te P lain tiffs’ in ju ries nor
rendered relief im possible.44
D avis v. A bbott, 781 F.3d 207 (5th Cir. 2015), is no more helpful to
Texas. As th e three-judge court in P erez pointed out, D avis “w as not a
decision about m ootness.” 253 F. Supp. 3d a t 874. And even Judge
S m ith ’s d issen t in Perez, which em phasized th a t the case concerned
plaintiffs “who have never been, and cannot be, in jured by the 2011
p lans,” id. a t 981, m akes clear why th is case is not moot: it involves the
po ten tia l for 3(c) relief, does not involve T exas’s repeal of SB14, and is
predicated on findings of discrim inatory in te n t as well as effects. Indeed,
here, SB14’s in ten tionally d iscrim inatory core provisions have in jured
P riva te P lain tiffs for six years, and various forms of prophylactic and
44 Courts frequently re ta in jurisd iction to address challenges to a law
even w here th a t law has been repealed or am ended. See N e. Fla. C hapter
o f A ssocia ted Gen. Contractors, 508 U.S. a t 661-63 (finding action was
not rendered moot w hen city repealed challenged ordinance and enacted
a different ordinance, which could still d isadvan tage challengers even if
to a lesser degree); A bie S ta te B a n k v. W eaver, 282 U.S. 765, 781 (1931)
(appeal w as not rendered moot by repeal of th e challenged s ta tu te w here
th e conduct “which was assailed in th[e] suit, is continued in effect” in
th e new act); Cooper v. M cBeath, 11 F.3d 547, 551 (5th Cir. 1994) (action
not rendered moot w hen Texas am ended challenged residency
requ irem en t because am endm ent did “not p reven t the s ta te from la te r
resto ring th e [previous requirem ent] if th is Court were to find it
constitu tional”) .
109
other relief for those in ju ries rem ain available. This C ourt should
therefore follow th e approach tak en in McCrory., w here the court struck
down a voter ID law because it w as enacted w ith racially d iscrim inatory
in ten t, even though th e leg isla tu re had am ended the law to include a
reasonable im pedim ent exception. 831 F.3d a t 240. The court noted th a t
th e exception “falls short of the rem edy th a t the Suprem e C ourt has
consistently applied in cases of th is n a tu re .” Id.
C. Texas’s Cessation Of Its Enforcement Of SB14 Cannot Moot
This Case
A case does not become moot sim ply because a defendant abandons
a challenged practice or changes a challenged law w here th e re is a risk
th a t th e defendant will rep ea t its unlaw ful conduct. Ne. Fla. C hapter o f
A ssocia ted Gen. C ontractors, 508 U.S. a t 661—63. And it is se ttled law
th a t “a defendant claim ing th a t its vo lun tary compliance moots a case
bears the form idable bu rd en of showing th a t it is absolutely clear the
allegedly wrongful behavior could not reasonably be expected to recur.”
F riends o f th e E arth, Inc. v. L a id law E nvtl. Servs. (TOC), Inc., 528 U.S.
167, 190 (2000). This is a bu rden Texas cannot meet.
Texas allegedly abandoned its challenged practice only afte r the
d istric t court and th is C ourt ru led th a t SB 14 had a d iscrim inatory effect
110
on Black and Latino Texans and only after th e d istric t court ru led th a t
SB14 w as enacted w ith a d iscrim inatory in te n t to harm those very
Texans. As discussed above, (supra P a r t III.B), Texas has continued its
d iscrim inatory conduct w ith th e enactm ent of SB5. And in any event,
noth ing in SB5 prevents th e Texas L eg islatu re—a body th a t has already
been found to have engaged in in ten tiona l racia l d iscrim ination—from
reverting to its prior unlaw ful conduct.
Texas cites the F ifth C ircu it’s general ru le th a t governm ent en tities
norm ally bear a “ligh ter b u rd en ” in vo lun tary cessation cases. Tex. Br.
a t 48—49 (citing Sossam on v. Lone S ta r S ta te o f Texas, 560 F.3d 316, 325
(5th Cir. 2009)). But in T rin ity L u th era n Church o f Columbia, Inc. v.
Comer, 137 S. Ct. 2012 (2107), th e Court refused to apply the voluntary-
cessation exception because th e defendant governm ent en tity “ha[d] not
carried the ‘heavy’ burden of m aking ‘absolutely clear’ th a t it could not
rev ert to” its challenged practices. Id. a t 2019 n .l (quoting L aid law
E nvtl. Servs., 528 U.S. a t 190). The C ourt’s stra igh tfo rw ard application
of L aid law to a governm ent en tity cannot be reconciled w ith a “lighter
bu rd en ” standard .
I l l
Even under a “ligh ter b u rden” standard , Texas’s a ttem p t to moot
th is case m ust be viewed “w ith a jaundiced eye.” Sossam on, 560 F.3d a t
325. In Sossam on, the C ourt noted th a t it applied a ligh ter burden in
p a rt because the p la in tiff “did not obtain relief below,” and th a t Texas’s
burden m ight be heavier “[h]ad the tr ia l court g ran ted” relief. Id. Texas’s
vigorous defense of its d iscrim inatory law —in th e face of these m ultiple
ru lings aga inst it—strongly undercu ts any good-faith presum ption th a t
it will not resum e such conduct. See H a ll v. Bd. O f Sch. Comm rs, 656
F.2d 999, 1000 (5th Cir. U nit B Sept. 1981) (concluding th a t the case was
not moot w here defendants “disputed th e constitu tionality of th e practice
up to the day of tria l, w hen defense counsel for the firs t tim e indicated
they had no in ten tion of reviving [it]”). Indeed, Texas passed SB14 in
2011 w ith a discrim inatory in te n t and did not a ttem p t to am eliorate its
action un til six years la te r in 2017 w hen it ran out of litigation options.
In th is appeal, as an a lte rn a tiv e to seeking v aca tu r based on mootness,
Texas preserves its appeal of th is C ourt’s finding th a t SB 14 h ad unlaw ful
d iscrim inatory results, th e finding th a t led to the passage of SB5. Thus,
and in any event, Texas is seeking to free itse lf from a judicial order th a t
would require it to m a in ta in SB5 and not rev ert to SB14 in the future.
112
U nder these circum stances, Texas should not be accorded the
p resum ption of good fa ith it seeks in its brief.45 See A rling ton H eigh ts ,
429 U.S. a t 265-66 (“W hen there is a proof th a t a d iscrim inatory purpose
has been a m otivating factor in the decision, . . . judicial deference [to the
legislature] is no longer justified .”).
D. The District Court’s Decision Should Not Be Vacated
If th is Court determ ines th a t any p a r t of th is case is moot due to
the L eg isla tu re’s voluntarily enacting SB5, th e appropriate course would
be to d ism iss th e appeal as moot and allow the d istric t court’s
d iscrim inatory resu lts and discrim inatory in te n t decisions to stand .
Texas places significant w eight on its argum en t th a t v aca tu r is the
‘“estab lished p ractice’ . . . w hen a case ‘becomes moot in its journey
th rough the federal courts.’” Tex. Br. a t 52 (quoting U nited S ta te s v.
45 Indeed, th is is not a case w here Texas deserves “solicitude” for ceasing
its enforcem ent of SB 14. Sossam on, 560 F.3d a t 325. The leg isla tors who
passed SB14 were acting not as “public se rv an ts ,” bu t as “se lf-in terested
private p a rtie s ,” id., passing a discrim inatory law to counter th re a ts to
th e ir personal political power. Cf. P erez v. Texas, 970 F. Supp. 2d 593,
602 (W.D. Tex. 2013) (holding th a t the vo lun tary cessation exception did
not apply because the Texas L egislature—th e sam e L eg isla tu re th a t
passed SB14 of 2011—“failted] to m eet th e ir burden of dem onstra ting
th a t the conduct alleged to violate § 2 and th e C onstitu tion w ith regard
to the 2011 [redistricting] plans could not reasonably be expected to
recur”).
113
M unsingw ear, 340 U.S. 36, 39 (1950) and K archer v. M ay , 484 U.S. 72,
82 (1987)). B ut while th e F ifth C ircuit has been clear th a t v aca tu r is
w arran ted “w here m ootness has occurred th rough happenstance ,” the
Suprem e C ourt has estab lished an exception to the norm of v aca tu r
w here “the p arty seeking re lie f from the judgm ent below caused the
m ootness by vo lun tary action.” U.S. Bancorp M ortg. Co. v. B onner M all
P ’sh ip , 513 U.S. 18, 24 (1994); see also H ouston Chronicle Pub. Co. v. C ity
o f League City, 488 F.3d 613, 619 (5th Cir. 2007) (rejecting defendan t’s
“vacatur-due-to-m ootness contention” because “m ootness result[ed] from
the losing p a rty ’s vo lun tary actions”); Sierra Club v. G lickm an, 156 F.3d
606, 619 (5th Cir. 1998) (“Because th is issue has been rendered moot by
the USDA’s vo lun tary com pliance w ith the d istric t court’s judgm ent, we
decline to d irect the d istric t court to vacate its judgm ent . . . .”). This is
particu larly tru e w here “a desire to avoid review in th[e] case played [a]
role” in th a t action. A lva rez v. S m ith , 558 U.S. 87, 97 (2009). M oreover,
“[t]he bu rden is on ‘the p a rty seeking relief from the s ta tu s quo’; th a t
p a rty m ust dem onstrate ‘equitab le en titlem en t to the ex trao rd inary w rit
of v aca tu r.’” H ouston Chronicle, 488 F.3d a t 620 (quoting U.S. Bancorp.,
513 U.S. a t 26).
114
Texas has not come close to satisfying its burden here. Texas’s
strateg ic passage of SB5, six years after its passage of SB14 in 2011, “did
not resu lt from typical progression of events,” H ouston Chronicle, 488
F.3d a t 620, or “happenstance ,” bu t from the litigation, and, thus,
dem onstra tes th a t Texas h as “surrender[ed] [its] claim to the equitable
rem edy of v aca tu r,” Bancorp, 513 U.S. a t 23, 25.
As already sta ted , Texas sought to pass SB5 in 2017 only after it
was clear th a t the d istric t court’s resu lts holding would stan d on appeal.
Texas argues w ithout support th a t the re “is no indication th a t the Texas
L egislature enacted SB5, or th a t the Governor signed it, out of ‘a desire
to avoid review of th is case,”’ and a ttem p ts to provide as evidence th a t
Texas inform ed th e d istric t court th a t it w as p lanning on passing SB5
“m onths” prior to the court’s d iscrim inatory in te n t finding. Tex. Br. a t
52. But Texas did not even begin considering an am endm ent to SB14
u n til 2017, afte r an en banc panel of th is Court in 2016 (l) upheld the
d istric t court’s 2014 discrim inatory resu lts finding, and (2) acknowledged
th a t the d istric t court could, based on evidence already before it, find th a t
SB14 w as passed w ith a d iscrim inatory in ten t. Veasey II, 830 F.3d a t
234-35, 272. Indeed, Texas tried to delay th e d istric t court’s ru ling on
115
th e question of in ten tiona l d iscrim ination u n til after SB5’s passage, (see
ROA.69310-15), which certain ly suggests th a t Texas was m otivated to
pass SB5 a t least in p a r t to avoid an unfavorable in ten t ru ling .46 Texas
cannot so easily erase m ultip le proper and w ell-supported findings of
discrim ination, particu larly w hen those findings in and of them selves
serve as a prophylactic ag a in st fu tu re d iscrim ination by Texas.
V. SB14 DID HAVE RACIALLY DISCRIMINATORY RESULTS
In response to Texas’s p reservation of th is issue, P rivate P laintiffs
hereby preserve all a rgum en ts in support of th is C ourt’s determ ination
th a t SB14 had a racially d iscrim inatory effect in violation of Section 2 of
the VRA.
CONCLUSION
For the reasons se t forth above, P riva te P laintiffs respectfully
request th a t th is C ourt affirm the d istric t court’s O rder on Claim of
46 To be clear, the Court need not find th a t Texas passed SB5 w ith the
in ten t of m ooting th is case to determ ine th a t v aca tu r is inappropria te
here. See S ta le y v. H arris Cnty., 485 F.3d 305, 312 (5th Cir. 2007)
(“W hether a p a rty ’s vo lun tary conduct w as not done w ith specific in ten t
to moot the case is certain ly one factor we m ay consider, bu t th e absence
of such specific in ten t does not outw eigh o ther equitable factors.”).
116
D iscrim inatory Purpose and O rder G ran ting Section 2 Remedies and
T erm inating In terim Order.
Respectfully subm itted,
/ s / Ezra D. R osenberg_____
J on M. Greenbaum
EzraD. Rosenberg
Brendan B. Downes
Lawyers’ Committee for Civil
Rights Under Law
1401 New York Avenue, N.W., Suite
400
W ashington, D.C. 20005
Wendy Weiser
Myrna Perez
Maximillian L. Feldman
The Brennan Center for J ustice at
NYU Law School
120 Broadway, Suite 1750
New York, New York 10271
Sidney S. Rosdeitcher
Paul, Weiss, Rifkind, Wharton &
Garrison, LLP
1285 A venue of the Am ericas
New York, New York 10019-6064
Lindsey B. Cohan
DECHERT LLP
500 W. 6 th S treet, Suite 2010
A ustin, Texas 78701
117
Neil Steiner
DECHERT LLP
1095 A venue of the Am ericas
New York, New York 10036-6797
J ose Garza
Law Office of J ose Garza
7414 Robin Rest Drive
San Antonio, Texas 98209
Daniel Gavin Covich
Covich Law Firm LLC
F rost B ank P laza
802 N C arancahua, Suite 2100
Corpus C hristi, Texas 78401
Gary Bledsoe
Potter Bledsoe, LLP
316 W. 12th S treet, Suite 307
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Victor Goode
NAACP
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Robert Notzon
The Law Office of Robert Notzon
1502 W est Avenue
A ustin , Texas 78701
C ounsel fo r th e Texas S ta te Conference
o f N A A C P B ranches a n d th e M exican
A m erican L eg isla tive Caucus o f the
Texas H ouse o f R ep resen ta tives
118
Is/ D anielle M. Lang__________________
J. Gerald Hebert
Danielle M. Lang*
Campaign Legal Center
1411 K S tree t NW Suite 1400
W ashington, D.C. 20005
* A d m itte d in N ew York a n d California
C ourts only7 P ractice lim ite d to U.S.
C ourts a n d fed era l agencies.
Chad W. Dunn
K. Scott Brazil
Brazil & Dunn
4201 Cypress Creek Parkw ay, Suite
530
H ouston, Texas 77068
Armand G. Derfner
Derfner & Altman
575 King S treet, Suite B
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Law Office of Neil G. Baron
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Co un se l fo r Veasey/L ULA C P lain tiffs
119
Luis Roberto Vera, J r.
Law Office of Luis Roberto Vera J r.
I l l Soledad, Suite 1325
San Antonio, Texas 78205
Co u n se l fo r L ULA C
Is/ Leah Aden___________________
Sherrilyn I fill
J anai Nelson
Leah C. Aden
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NAACP Legal Defense and
Educational Fund, Inc.
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Dorr LLP
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C ounsel fo r Im a n i C lark
/s/ Robert W. Doggett___________
Robert W. Doggett
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120
J ose Garza
Texas RioGrande Legal Aid
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C ounsel fo r L en a rd Taylor, E ulalio
M endez Jr., L ionel E strada, E stela
Garcia Espinosa, M axim ina M a rtin ez
Lara, a n d La Union D el Pueblo Entero,
Inc.
121
CERTIFICATE OF SERVICE
I hereby certify th a t on th is 13th day of November, 2017, I
electronically filed the foregoing w ith the Clerk of the Court for the
U nited S ta te s Court of A ppeals for the F ifth C ircuit using the appellate
CM/ECF system . Counsel for all parties to the case are reg istered
CM/ECF users and will be served by the appella te CM/ECF system .
/ s / Ezra D. R osenberg________________
Ezra D. Rosenberg
C ounsel fo r Texas S ta te C onference o f
N A A C P B ranches & M A L C
CERTIFICATE OF COMPLIANCE
1. I certify th a t, on Novem ber 13, 2017, th is docum ent was
tran sm itte d to the C lerk of th e U nited S ta tes Court of A ppeals for
the F ifth C ircuit via the C ourt’s CM /ECF docum ent filing system .
2. I certify th a t th is b rief complies w ith th e type-volum e lim ita tion of
Federal Rule of A ppellate Procedure 32(a)(7)(B) because it contains
24,931 words, excluding the p a rts of th e brief exem pted by Federal
Rule of A ppellate Procedure 32(a)(7)(B)(iii).
3. I certify th a t th is b rief complies w ith th e typeface requ irem ents of
F ederal Rule of A ppellate Procedure 32(a)(5) and th e type style
requ irem en ts of Federal Rule of A ppellate Procedure 32(a)(6)
because th is b rief has been p repared in a proportionally spaced
typeface using Microsoft Word using 14-point C entury Schoolbook
typeface.
Date^ Novem ber 13, 2017 /s /L in d s e y B. Cohan_______
Lindsey B. Cohan
C ounsel fo r Texas S ta te C onference o f
N A A C P B ra n ch es & M A L C