Veasey v. Abbott

888 F.3d 792

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 Director of the Texas Department of Public Safety, Defendants–Appellants

Texas State Conference of NAACP Branches; Mexican American Legislative Caucus, Texas House of Representatives, Plaintiffs–Appellees

v.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

No. 17-40884

United States Court of Appeals, Fifth Circuit.

April 27, 2018

Chad Wilson Dunn, Esq., Brazil & Dunn, Houston, TX, Neil G. Baron, League City, TX, Armand G. Derfner, Esq., Derfner & Altman, L.L.C., Charleston, SC, Mark P. Gaber, J. Gerald Hebert, Esq., Danielle Marie Lang, Paul March Smith, Esq., Campaign Legal Center, Washington, DC, for Plaintiffs–Appellees

Chad Wilson Dunn, Esq., Brazil & Dunn, Houston, TX, Neil G. Baron, League City, TX, Armand G. Derfner, Esq., Derfner & Altman, L.L.C., Charleston, SC, Mark P. Gaber, J. Gerald Hebert, Esq., Danielle Marie Lang, Paul March Smith, Esq., Campaign Legal Center, Washington, DC, Luis Roberto Vera, Jr., Esq., Law Offices of Luis Roberto Vera, Jr. & Associates, San Antonio, TX, for Plaintiff–Appellee LEAGUE OF UNITED LATIN AMERICAN CITIZENS.

Thomas Evans Chandler, Trial Attorney, Anna Marks Baldwin, Diana Katherine Flynn, Gregory Bryan Friel, Esq., Special Counsel, U.S. Department of Justice Civil Rights Div.—Appellate Section, Washington, DC, Bruce I. Gear, U.S. Department of Justice, Washington, DC, John Matthew Gore, U.S. Department of Justice, Civil Rights Division, Washington, DC, John Albert Smith, III, Assistant U.S. Attorney, U.S. Attorney's Office Southern District of Texas, Corpus Christi, TX, for Plaintiff–Appellee UNITED STATES OF AMERICA.

Ezra D. Rosenberg, Esq., Jon Marshall Greenbaum, Esq., Director, Lawyers' Committee for Civil Rights Under Law, Washington, DC, Lindsey Beth Cohan, Dechert, L.L.P., Austin, TX, Myrna Perez, Deputy Director, NYU School of Law, New York, NY, Sidney Samuel Rosdeitcher, I, Esq., Paul, Weiss, Rifkind, Wharton & Garrison, L.L.P., New York, NY, Neil A. Steiner, Dechert, L.L.P., New York, NY, Michelle Yeary, Dechert, L.L.P., Princeton, NJ, for Plaintiff–Appellee MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES.

Ezra D. Rosenberg, Esq., Jon Marshall Greenbaum, Esq., Director, Lawyers' Committee for Civil Rights Under Law, Washington, DC, Gary Lynn Bledsoe, Bledsoe Law Firm, L.L.P., Austin, TX, Lindsey Beth Cohan, Dechert, L.L.P., Austin, TX, Daniel Gavin Covich, Corpus Christi, TX, Myrna Perez, Deputy Director, NYU School of Law, New York, NY, Sidney Samuel Rosdeitcher, I, Esq., Paul, Weiss, Rifkind, Wharton & Garrison, L.L.P., New York, NY, Neil A. Steiner, Dechert, L.L.P., New York, NY, Michelle Yeary, Dechert, L.L.P., Princeton, NJ, for Plaintiff–Appellee TEXAS STATE CONFERENCE OF NAACP BRANCHES.

Robert Wayne Doggett, Shoshana J. Krieger, Texas RioGrande Legal Aid, Incorporated, Austin, TX, Jose Garza, Texas RioGrande Legal Aid, Incorporated, San Antonio, TX, for Plaintiff–Appellee ESTELA GARCIA ESPINOSA, LIONEL ESTRADA, EULALIO MENDEZ, JR., LENARD TAYLOR.

Robert Wayne Doggett, Texas RioGrande Legal Aid, Incorporated, Austin, TX, Jose Garza, Texas RioGrande Legal Aid, Incorporated, San Antonio, TX, for Plaintiff–Appellee LA UNION DEL PUEBLO ENTERO, INCORPORATED, MAXIMINA MARTINEZ LARA.

Scott A. Keller, Solicitor, J. Campbell Barker, Deputy Solicitor General, Matthew Hamilton Frederick, Deputy Solicitor General, Office of the Solicitor General for the State of Texas, Austin, TX, Angela Veronica Colmenero, Esq., Assistant Attorney General, Jason R. LaFond, Jeffrey Carl Mateer, General Counsel, Office of the Attorney General for the State of Texas, Austin, TX, for Defendants–Appellants.

Thomas Molnar Fisher, Solicitor General, Office of the Attorney General for the State of Indiana, Indianapolis, IN, for Amici Curiae.

Before HIGGINBOTHAM, JONES, and GRAVES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

This appeal by the state of Texas follows remand from the en banc court concerning the state's former photo voter ID law ("SB 14"). During the remand, the Texas legislature passed a law designed to cure all the flaws cited in evidence when the case was first tried. The legislature succeeded in its goal. Yet the plaintiffs were unsatisfied and successfully pressed the district court to enjoin not only SB 14, but also the new ameliorative law ("SB 5"). Because the district court's permanent injunction and order for further relief abused its discretion, we reverse and render.

Senate Bill 14 ("SB 14") was enacted in 2011 and generally required voters to present one of five forms of government-issued identification in order to vote at the polls. Several Private Plaintiffs ("Plaintiffs") and the Department of Justice challenged SB 14 on the grounds the bill: (1) was a poll tax; (2) purposefully abridged the right to vote on account of race, in violation of Section 2 of the Voting Rights Act (the "VRA"); (3) resulted in abridgment of the right to vote on account of race, in violation of Section 2 of the VRA; and (4) unconstitutionally burdened the right to vote.

In 2014, the district court held: (1) SB 14 had a discriminatory result because it provided African American and Hispanic voters less opportunity to participate in the political process and elect their candidates of choice, and (2) Texas enacted SB 14 at least in part because of its adverse effect on minority voters. Veasey v. Perry , 71 F.Supp.3d 627, 694 (S.D. Tex. 2014). The district court permanently enjoined Texas from enforcing SB 14's voter-ID provisions and reinstated Texas's preexisting voter-ID law, which required in-person voters to present either a voter registration certificate or execute an eligibility affidavit and produce another form of identification. See id. at 702–03. In Veasey v. Abbott , 830 F.3d 216 (5th Cir. 2016) (en banc), cert. denied , ––– U.S. ––––, 137 S.Ct. 612, 197 L.Ed.2d 78 (2017) (" Veasey II "), this court affirmed the district court's finding that SB 14 had an unlawful disparate impact on African American and Hispanic voters in violation of § 2 of the VRA. However, the en banc court reversed the district court's determination SB 14 was enacted with a discriminatory purpose, and remanded the case for further proceedings and for entry of an interim remedy before the 2016 general election.

In August 2016, the district court entered an interim remedy agreed to by all parties. In fashioning an interim remedy, this court directed the district court to "take special care" to honor the State's policy preferences to implement a photo-ID system and emphasized that a remedy that "[s]imply revert[ed] to the system in place before SB 14's passage would not fully respect these policy choices." Veasey II , 830 F.3d at 269, 271. The parties worked together to develop a remedy whereby in-person voters who lacked an SB 14 ID could cast a regular ballot upon completing a Declaration of Reasonable Impediment ("DRI") and presenting a specified form of identification. The seven possible impediments were: (1) lack of transportation, (2) lack of documents necessary to obtain acceptable ID, (3) work schedule, (4) lost or stolen ID, (5) disability or illness, (6) family responsibility, and (7) ID applied for but not yet received.

The DRI also offered an "other" box, allowing voters to write anything in the blank space to be able to vote. The declaration further provided that the reasonableness of the voter's impediment or difficulty could not be questioned by election officials, and the voter signed the declaration "upon penalty of perjury." The specified forms of ID a voter was required to present in order to take advantage of the reasonable impediment declaration were the same documents required to vote under pre-SB 14 law: a valid voter-registration certificate, a certified birth certificate, a copy or original of a current utility bill, bank statement, government check, paycheck, or other government document showing the voter's name and address. The interim remedy was used for the November 2016 general election and remained in place pending further order of the district court, with the understanding that all parties "preserve[d] their right to seek or oppose future relief."

In February and March 2017, the Texas Legislature informed the district court about legislation being considered during the 2017 session "to adjust SB 14 to comply with the Fifth Circuit's decision." Both Texas and the United States asked the district court to postpone further liability proceedings until the end of the 2017 legislative session. Indeed, in Veasey II , this court directed the district court to reexamine the discriminatory purpose claim, "bearing in mind the effect any interim legislative action taken with respect to SB...