Texas v. Holder

888 F.Supp.2d 113

State of TEXAS, Plaintiff,

v.Eric H. HOLDER, Jr., Defendant.

Civil Action No. 12–cv–128 (DST, RMC, RLW).

United States District Court, District of Columbia.

Aug. 30, 2012.

Adam W. Aston, John William McKenzie, Matthew Hamilton Frederick, Patrick Kinney Sweeten, Texas Attorney General, Austin, TX, Asha L.I. Spencer, Chicago, IL, for Plaintiff.

Elizabeth Stewart Westfall, Matthew Colangelo, Meredith E.B. Bell–Platts, Bruce I. Gear, Bryan L. Sells, U.S. Department of Justice, Washington, DC, for Defendant.

Before TATEL, Circuit Judge, and COLLYER and WILKINS, District Judges.

TATEL, Circuit Judge.

Pursuant to section 5 of the Voting Rights Act of 1965, Texas seeks a declaratory judgment that Senate Bill 14 (SB 14), a newly-enacted law requiring in-person voters to present a photo ID, “neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race[,] color,” or “member[ship] [in] a language minority group.” 42 U.S.C. §§ 1973c(a), 1973b(f)(2). To satisfy section 5's effect requirement, Texas must demonstrate that SB 14 will not “lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.” Beer v. United States, 425 U.S. 130, 141, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976). For the reasons set forth in this opinion, we find that Texas has failed to make this showing—in fact, record evidence demonstrates that, if implemented, SB 14 will likely have a retrogressive effect. Given this, we have no need to consider whether Texas has satisfied section 5's purpose element. Accordingly, we deny the state's request for a declaratory judgment.

I.

Under Texas's current election code, i.e., pre-SB 14, any Texan who wishes to vote must file a registration application with the county elections registrar. That application must include the voter's name, date of birth, and a sworn affirmation of U.S. citizenship. Tex. Elec. Code § 13.002. If the application is approved, the registrar delivers a “voter registration certificate” to the applicant, either in person or via U.S. mail. Id. §§ 13.142, 13.144. This “certificate”—actually a paper postcard—has no photograph, but does include a voter's name, gender, year of birth, and a unique voter ID number. When presented at the polls, a voter registration certificate entitles the registrant to cast an in-person ballot.

Registered voters who fail to present a voter registration certificate may nonetheless cast an in-person ballot if they (1) execute an affidavit stating that they do not have their certificate, and (2) present an alternate “acceptable” form of identification. Id. §§ 63.008, 63.0101. In addition to a voter registration certificate, Texas's current election code recognizes eight broad categories of documents as “acceptable” voter ID. These include birth certificates, expired and non-expired driver's licenses, U.S. passports, U.S. citizenship papers, utility bills, “official mail addressed to the person ... from a governmental entity,” any “form of identification containing the person's photograph that establishes the person's identity,” and “any other form of identification prescribed by the secretary of state.” Id. § 63.0101. All in-person voters are subject to these ID requirements regardless of age or physical condition. But certain voters—including those who are 65 or older, disabled, or expect to be absent or in jail on Election Day—may choose to vote by mail without presenting identification. Id. §§ 82.001–004.

Senate Bill 14, enacted in 2011, is more stringent than existing Texas law. If implemented, SB 14 will require in-person voters to identify themselves at the polls using one of five forms of government-issued photo identification, two state and three federal: (1) a driver's license or personal ID card issued by the Texas Department of Public Safety (DPS); (2) a license to carry a concealed handgun, also issued by DPS; (3) a U.S. military ID card; (4) a U.S. citizenship certificate with photograph; or (5) a U.S. passport. Tex. Elec. Code § 63.0101 (January 1, 2012). Unlike Texas's current code, which allows voters to present either photographic or non-photographic ID, SB 14 requires every form of acceptable ID to include a photograph of the voter. Also unlike the current code, SB 14 prohibits the use of IDs that have expired more “than 60 days before the date of presentation” at the polls. Id. Finally, SB 14 will prohibit voters from identifying themselves using only the pictureless “voter registration certificate” issued by a county registrar.

Prospective voters lacking one of the forms of photo ID listed in SB 14 will be able to obtain a photographic “election identification certificate” (EIC) for use at the polls. A pocket-sized card “similar in form to ... a driver's license,” Tex. Transp. Code § 521A.001(e), an EIC, like a driver's license, will be distributed through the DPS, and prospective voters will have to visit a DPS office to get one.

Although SB 14 prohibits DPS from “collect[ing] a fee for an [EIC],” id. § 521A.001(b), EICs will not be costless. Not only will prospective voters have to expend time and resources traveling to a DPS office, but once there they will have to verify their identity by providing “satisfactory” documentation to DPS officials. Specifically, prospective voters will need to provide (1) one piece of “primary identification,” (2) two pieces of “secondary identification,” or (3) one piece of “secondary identification” plus two pieces of “supporting identification” in order to receive an EIC. 37 Tex. Admin. Code § 15.182. A “primary” identification is an expired Texas driver's license or personal identification card that has been expired for at least 60 days but not more than two years. Id. § 15.182(2). A “secondary” identification is one of the following:

• an original or certified copy of a birth certificate;

• an original or certified copy of a court order indicating an official change of name and/or gender; or

U.S. citizenship or naturalization papers without an identifiable photo.

Id. § 15.182(3). A wide array of documents qualify as “supporting identification,” including school records, Social Security cards, pilot's licenses, and out-of-state driver's licenses. Id. § 15.182(4).

In sum, SB 14 will require every EIC applicant to present DPS officials with at least one of the following underlying forms of identification:

• an expired Texas driver's license or personal ID card;

• an original or certified copy of a birth certificate;

• U.S. citizenship or naturalization papers; or

• a court order indicating a change of name and/or gender.

Importantly, it costs money to obtain any of these documents. This means that EIC applicants—i.e., would-be voters—who possess none of these underlying forms of identification will have to bear out-of-pocket costs. For Texas-born voters who have changed neither their name nor gender, the cheapest way to obtain the required documentation will be to order a certified copy of their birth certificate from the Texas Bureau of Vital Statistics at a cost of $22. See Advisory Regarding Election Identification Certificates, ECF No. 308, at 2. (A copy of a court order indicating a change of name and/or gender costs $5 for the records search, plus $1 per page for the court order. Actually obtaining a legal change of name and/or gender costs far more—at least $152. See Attorney General's Response to the State's Advisory Regarding Election Identification Certificates, ECF No. 330, at 2–3.) More expensive options exist as well, ranging from $30 for an “expedited” birth certificate order all the way up to $354 for a copy of U.S. citizenship or naturalization papers. See, e.g., Advisory Regarding Election Identification Certificates, ECF No. 308, at 2.

SB 14 largely retains Texas's existing rules for elderly and disabled voters. Voters over age 65 will still be able to vote by mail, although they will have to present an SB 14–qualifying photo ID if they choose to vote at the polls. Disabled voters, too, will be able to continue voting by mail, and those who choose to vote at the polls will still be able to identify themselves using the photoless postcard “voter registration certificate” issued by county elections registrars. To obtain this latter exemption, however, disabled Texans will need to provide written documentation of disability from either the Social Security Administration or Department of Veterans Affairs. Tex. Elec. Code § 13.002(i).

Texas Governor Rick Perry signed SB 14 into law on May 27, 2011. The law, however, has yet to take effect because, as a jurisdiction covered by section 5 of the Voting Rights Act of 1965, 28 C.F.R. pt. 51 App., Texas may not implement any change in its voting procedures without first obtaining “preclearance” from either the United States Attorney General or a three-judge panel of this court. 42 U.S.C. § 1973c(a). To obtain preclearance, Texas must demonstrate that SB 14 “neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race[,] color,” or “member[ship] [in] a language minority group.” Id. §§ 1973c(a), 1973b(f)(2).

Texas filed a preclearance application with the Attorney General on July 25, 2011. Under the Voting Rights Act, the Attorney General has sixty days to “interpose[ ] an objection” to a changed voting procedure. Id. § 1973c(a). But here that process was delayed by the Attorney General's requests for additional information as to (1) the number of voters who lack a DPS-issued driver's license or personal ID card, and (2) the percentage of those voters who are minorities. See28 C.F.R. §§ 51.37(b), 51.39(a)(1) (stating that when supplemental submissions are provided “the 60–day period for the pending submission will be recalculated from the Attorney General's receipt of the supplementary information.”). Nearly six months after filing its initial preclearance...