American Civil Liberties Union, Nm v. Santillanes

546 F.3d 1313

THE AMERICAN CIVIL LIBERTIES UNION OF NEW MEXICO, Plaintiff, and The League of Women Voters of Albuquerque/Bernalillo County, Inc.; Sage Council; New Mexico Coalition to End Homelessness; Anne Kass; Alexandra Kazaras; Barbara Grothus, Plaintiffs-Appellees, v. Millie U. SANTILLANES, Albuquerque City Clerk, Defendant-Appellant The Brennan Center for Justice at New York University School of Law, Amici Curiae.

No. 07-2067.

United States Court of Appeals, Tenth Circuit.

November 17, 2008.

Michael Garcia, Assistant City Attorney (Robert M. White, City Attorney, Robert D. Kidd, Paula I. Forney, and Mark Shoesmith, Assistant City Attorneys of City of Albuquerque, with him on the briefs), Albuquerque, NM, for Defendant-Appellant.

Charles K. Purcell (Andrew G. Schultz of Rodey, Dickason, Sloan, Akin & Robb, P.A., and George Bach of American Civil Liberties Union of New Mexico, Albuquerque, New Mexico, with him on the briefs), Albuquerque, NM, for Plaintiffs-Appellees.

Sidney S. Rosdeitcher and J. Adam Skaggs of Paul, Weiss, Rifkind, Wharton & Garrison, L.L.P., New York, New York, Wendy R. Weiser and Justin Levitt of the Brennan Center for Justice at New York University School of Law, John W. Boyd of Freedman, Boyd, Daniels, Hollander, Goldberg & Ives, P.A., Albuquerque, NM, for Amici Curiae.

Before KELLY, BALDOCK, and O'BRIEN, Circuit Judges.

KELLY, Circuit Judge.

Defendant-Appellant, the Albuquerque City Clerk ("City"), appeals from the district court's judgment in favor of Plaintiffs-Appellees granting them declaratory and injunctive relief. In 2005, the City passed an amendment to its charter requiring voters in municipal elections to present photo identification at polling locations. On summary judgment, the district court held that the amendment violated the federal constitutional guarantee of equal protection. It then entered a final order declaring the amendment unconstitutional and enjoining the City and its agents from enforcing the amendment in future elections. ACLU v. Santillanes, 506 F.Supp.2d 598, 645-46 (D.N.M.2007); Aplt.App. 711. After the district court entered its final order, the Supreme Court decided Crawford v. Marion County Election Board, ___ U.S. ___, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008), significantly clarifying the legal landscape. Our jurisdiction arises under 28 U.S.C. § 1291, and we reverse.

Background

In October 2005, the voters of Albuquerque approved an amendment to the Albuquerque City Charter to require photo identification for in-person voters in all municipal elections. See Albuquerque, N.M., City Charter, art. XIII, § 14 (as amended Oct. 4, 2005); Aplt.App. 121-24. As stated in the City Council bill submitting the amendment to the voters, the purpose of the amendment is to prevent voter fraud, specifically identity impersonation at polling locations. Aplt.App. 121-22. The amendment provides numerous examples of acceptable forms of photo identification: "any card issued by a government agency, driver's license, student identification card, commercial transaction card such as a credit or debit card, insurance card, union card, a professional association card or the voter identification card issued by the City Clerk." Aplt.App. 122. If a voter does not have an identification card, the amendment provides that a voter may cast a provisional ballot at the polling location after completing a clerk-supplied affidavit as to identity, date of birth, and the last four digits of a social security number. Aplt.App. 122. The vote will then be counted once the individual presents photo identification to the city clerk within ten days of the election date. Aplt. App. 123. Additionally, the city clerk provides free photo identification cards at any time, including on the day of an election and during the ten-day period following an election. Aplt. Br. at 5. The law, however, does not cover absentee voters because it is intended specifically to address the fraud and impersonation that may result from in-person voting.

In a six-count complaint, Plaintiffs contended that the amendment violated the First and Fourteenth Amendments, the Civil Rights Act of 1964, and the Voting Rights Act of 1965. Aplt.App. 101-20. By stipulation of the parties, the district court dismissed all but the equal protection and First Amendment claims contained in counts I and VI. Aplt.App. 293. Following discovery, both parties filed cross motions for summary judgment. Aplt.App. 172, 294. On February 12, 2007, the district court granted summary judgment in favor of Plaintiffs on the equal protection claim and in favor of Defendants on the First Amendment claim. Santillanes, 506 F.Supp.2d at 645-46. This appeal followed.

After the district court opinion, but prior to oral argument in this case, the Supreme Court decided Crawford. The Court upheld an Indiana photo identification requirement, similar to Albuquerque's against a facial equal protection challenge. Crawford, 128 S.Ct. at 1613-15. The Indiana law required all in-person voters to present a government-issued photo identification. In the lead opinion, joined by Chief Justice Roberts and Justice Kennedy, Justice Stevens rejected the facial challenge to the law. Justice Stevens reaffirmed the Court's earlier decisions, including Burdick v. Takushi, 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992), which held that the appropriate standard for evaluating constitutional challenges to a regulation affecting the right to vote is to balance the restrictions imposed by the regulation against its justifications. Crawford, 128 S.Ct. at 1616. In a concurring opinion joined by Justice Thomas and Justice Alito, Justice Scalia held that any burden imposed by the photo identification law was "minimal and justified" without regard to any individual effects of the provision on certain voters. Id. at 1624. According to Justice Scalia, the law "is a generally applicable, nondiscriminatory voting regulation," and "[t]he burden of acquiring, possessing, and showing a free photo identification is simply not severe" in comparison to the usual burdens associated with voting. Id. at 1625, 1627. Nevertheless, under Justice Stevens's opinion, the Court balanced "the asserted injury to the right to vote against the precise interests put forward by the State as justifications for the burden imposed by its rule." Id. at 1616. (internal quotation marks omitted). After a detailed weighing of the burdens imposed by the law, the justifications for the law, and the accommodations made for particularly situated voters, Justice Stevens held that the burden of presenting photo identification at a polling place imposes only a "`limited burden on voters' rights,'" id. at 1623 (quoting Burdick, 504 U.S. at 439, 112 S.Ct. 2059), and that the justifications for Indiana's law were both neutral and sufficiently strong to uphold the law. Id. at 1624.

Discussion

We review a district court's grant of summary judgment de novo, applying the same standards as the district court. Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1112-13 (10th Cir.2007). Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). We view the facts in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 1774-75, 167 L.Ed.2d 686 (2007).

On appeal, the City argues that the district court erred in holding: (1) that the Plaintiffs had standing to challenge the voter identification law, and (2) that the law violates equal protection. Concerning the second argument, the City argues that (a) the law properly distinguishes between in-person and absentee voters, (b) the district court erred in applying a heightened standard of review, (c) the "current valid" photo identification requirement is not unconstitutionally vague, (d) the Help America Vote Act (HAVA) and the 2005 amendments to New Mexico's election code concerning voter identification do not conflict with the law, (e) the City was not required to show that the State failed to comply with HAVA prior to imposing the law, and (f) the district court's other justifications should be rejected.

I. Standing

Standing is part of Article III's "case or controversy" requirement. An individual plaintiff must meet three elements to establish standing: (1) injury in fact, (2) causation, and (3) redressibility. Davis v. Fed. Election Comm'n, ___ U.S. ___, 128 S.Ct. 2759, 2768, 171 L.Ed.2d 737 (2008). A plaintiff must have suffered "an injury in fact," defined as the "invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotation marks and citations omitted). A plaintiff must also show a "causal connection between the injury and the conduct." Lujan, 504 U.S. at 560, 112 S.Ct. 2130. And finally, a plaintiff must demonstrate that it must be "likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Id. at 561, 112 S.Ct. 2130 (internal quotation marks and citations omitted). An organizational plaintiff must additionally demonstrate that "its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Friends of the Earth, Inc., v. Laidlaw Envtl. Svcs. (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).

We review questions of standing de novo. Nova Health Sys. v. Gandy, 416 F.3d 1149, 1154 (10th Cir.2005). "At the summary judgment stage, the plaintiff must set forth by affidavit or other...