Veasey v. Abbott

830 F.3d 216

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, Ken Gandy; Gordon Benjamin, Evelyn Brickner, Plaintiffs–Appellees

Texas Association of Hispanic County Judges and County Commissioners, Intervenor Plaintiffs–Appellees

v.Greg Abbott, in his Official Capacity as Governor of Texas; Carlos Cascos, 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; Carlos Cascos, 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.Carlos Cascos, 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; Margarito Martinez Lara; Maximina Martinez Lara; La Union Del Pueblo Entero, Incorporated, Plaintiffs–Appellees

v.State of Texas; Carlos Cascos, Texas Secretary of State; Steve McCraw, in his Official Capacity as Director of the Texas Department of Public Safety, Defendants–Appellants

No. 14-41127

United States Court of Appeals, Fifth Circuit.

July 20, 2016

Chad Wilson Dunn, Esq., Brazil & Dunn, Houston, TX, Neil G. Baron, Dickinson, TX, Joshua James Bone, J. Gerald Hebert, Esq., Danielle Marie Lang, Campaign Legal Center, Washington, DC, Armand G. Derfner, Esq., Derfner & Altman, L.L.C., Charleston, SC, J. Gerald Hebert, Esq., Alexandria, VA, for Plaintiffs–Appellees Marc Veasey, Jane Hamilton, Sergio Deleon, Floyd Carrier, Anna Burns, Michael Montez, Penny Pope, Oscar Ortiz, Koby Ozias, League of United Latin American Citizens, Ken Gandy, Gordon Benjamin, and John Mellor–Crummey.

Erin Helene Flynn, Esq., Anna Marks Baldwin, Diana Katherine Flynn, Robert Acheson Koch, Christine Anne Monta, U.S. Department of Justice, Civil Rights Div. —Appellate Section, 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.

Sherrilyn Ann Ifill, Leah Camille Aden, Esq., Natasha M. Korgaonkar, Esq., Janai S. Nelson, Esq., Deuel Ross, Christina A. Swarns, NAACP, Legal Defense & Educational Fund, Inc., New York, NY, Kelly Patrick Dunbar, Sonya Ludmilla Lebsack, WilmerHale, Washington, DC, for Intervenor Plaintiffs–Appellees Imani Clark and Texas League of Young Voters Education Fund.

Rolando Leo Rios, I, Esq., Law Office of Rolando L. Rios, San Antonio, TX, for Intervenor Plaintiff–Appellee Texas Association of Hispanic County Judges and County Commissioners.

Ezra D. Rosenberg, Esq., Jon Marshall Greenbaum, Esq., Director, Lawyers' Committee for Civil Rights Under Law, Washington, DC, Amy Lynne Rudd, Senior Litigating Attorney, Lindsey Beth Cohan, Dechert, L.L.P., Austin, TX, Preston Edward Henrichson, Esq., Law Offices of Preston Henrichson, P.C., Edinburg, TX, Myrna Perez, Deputy Director, NYU School of Law, Brennan Center for Justice, New York, NY, Rolando Leo Rios, I, Esq., Law Office of Rolando L. Rios, San Antonio, TX, for Intervenor Plaintiff–Appellee Mexican American Legislative—Caucus, Texas House of Representatives.

Ezra D. Rosenberg, Esq., Lawyers' Committee for Civil Rights Under Law, Washington, DC, Amy Lynne Rudd, Senior Litigating Attorney, Lindsey Beth Cohan, Dechert, L.L.P., Austin, TX, Vishal Agraharkar, Jennifer Clark, Myrna Perez, Deputy Director, NYU School of Law, Brennan Center for Justice, New York, NY, for Plaintiff–Appellee Texas State Conference of NAACP Branches.

Robert Wayne Doggett, Texas RioGrande Legal Aid, Incorporated, Austin, TX, Jose Garza, San Antonio, TX, Marinda van Dalen, Texas RioGrande Legal Aid, Incorporated, Brownsville, TX, for Plaintiffs–Appellees Estela Garcia Espinosa, Lionel Estrada, La Union Del Pueblo Entero, Incorporated, Margarito Martinez Lara, Maximina Martinez Lara, Eulalio Mendez, Jr., and Lenard Taylor.

Chad Wilson Dunn, Esq., Brazil & Dunn, Houston, TX, Danielle Marie Lang, Campaign Legal Center, Washington, DC, for Plaintiff–Appellee Evelyn Brickner.

Scott A. Keller, Solicitor, J. Campbell Barker, Deputy Solicitor General, Matthew Hamilton Frederick, Deputy Solicitor General, Prerak Shah, Senior Counsel, Office of the Solicitor General for the State of Texas, Austin, TX, for Defendants–Appellants Greg Abbott, Carlos Cascos, State of Texas, and Steve McCraw.

Lawrence John Joseph, Washington, DC, for Amicus Curiae Eagle Forum Education and Legal Defense Fund.

Charles Justin Cooper, Cooper & Kirk, P.L.L.C., Washington, DC, for Amicus Curiae Lawrence Crews.

Elizabeth Bonnie Wydra, Chief Counsel, Constitutional Accountability Center, Washington, DC, for Amicus Curiae Constitutional Accountability Center.

Daniel B. Kohrman, Senior Attorney, AARP Foundation Litigation, Washington, DC, for Amicus Curiae American Association of Retired Persons.

William Consovoy, Consovoy McCarthy Park, P.L.L.C., Arlington, VA, for Amicus Curiae Project on Fair Representation.

Andrew M. Leblanc, Esq., Milbank, Tweed, Hadley & McCloy, L.L.P., Washington, DC, for Amici Curiae LatinoJustice PRLDEF, National Association of Latino Elected and Appointed Officials Educational Fund, Hispanic Federation, Hispanic National Bar Association, Mi Familia Vota Education Fund, and Voto Latino.

Martin Jonathan Siegel, Law Office of Martin J. Siegel. P.C., Houston, TX, for Amici Curiae Mark White, Dana Debeauvoir, Oscar Villarreal, and Carolyn Guidry.

Steven James Lechner, Esq., Mountain States Legal Foundation, Lakewood, CO, for Amicus Curiae Mountain States Legal Foundation.

Stuart Kyle Duncan, Schaerr Duncan, L.L.P., Washington, DC, for Amicus Curiae Twenty–Seven U.S. Senators and Representatives from Texas.

Thomas Molnar Fisher, Solicitor General, Office of the Attorney General for the State of Indiana, Indianapolis, IN, for Amicus Curiae States of Indiana, Alabama, Arizona, Arkansas, Georgia, Kansas, Louisiana, Michigan, Nevada, Ohio, Oklahoma, South Carolina, Utah, West Virginia, and Wisconsin.

Dale Edwin Ho, Director, Sean Young, American Civil Liberties Union Foundation, Voting Rights Project, New York, NY, Rebecca L. Robertson, Attorney, American Civil Liberties Union of Texas, Houston, TX, for Amici Curiae American Civil Liberties Union and American Civil Liberties of Texas.

Marc Rotenberg, Alan Butler, Caitriona Fitzgerald, Aimee Thomson, Electronic Privacy Information Center (EPIC), Washington, DC, for Amicus Curiae Electronic Privacy Information Center.

Before STEWART, Chief Judge, and JOLLY, DAVIS, JONES, SMITH, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, and COSTA, Circuit Judges.

HAYNES, Circuit Judge, joined by STEWART, Chief Judge, and DAVIS, PRADO, SOUTHWICK, GRAVES, and HIGGINSON, Circuit Judges, in full; DENNIS and COSTA, Circuit Judges, joining in all but Part II.A.1 and concurring in the judgment.¹

In 2011, Texas (“the State”) passed Senate Bill 14 (“SB 14”), which requires individuals to present one of several forms of photo identification in order to vote. See Act of May 16, 2011, 82d Leg., R.S., ch. 123, 2011 Tex. Gen. Laws 619. Plaintiffs filed suit challenging the constitutionality and legality of the law. The district court held that SB 14 was enacted with a racially discriminatory purpose, has a racially discriminatory effect, is a poll tax, and unconstitutionally burdens the right to vote. See Veasey v. Perry , 71 F.Supp.3d 627, 633 (S.D. Tex. 2014). The State appealed from that decision, and a panel of our court affirmed in part, vacated in part, and remanded the case for further findings. See Veasey v. Abbott , 796 F.3d 487, 493 (5th Cir. 2015), reh'g en banc granted , 815 F.3d 958 (5th Cir. 2016). The State filed a petition for this court to rehear the case en banc, which we granted.

I. Background

A. Senate Bill 14

Prior to the implementation of SB 14, a Texas voter could cast a ballot in person by presenting a registration certificate—a document mailed to voters upon registration. Tex. Elec. Code §§ 13.142, 63.001(b) (West 2010). Voters appearing without the certificate could cast a ballot by signing an affidavit and presenting one of multiple forms of identification (“ID”), including a current or expired driver's license, a photo ID (including employee or student IDs), a utility bill, a bank statement, a paycheck, a government document showing the voter's name and address, or mail addressed to the voter from a government agency. Id. §§ 63.001, 63.0101 (West 2010).

With the implementation of SB 14, Texas began requiring voters to present certain specific forms of identification at the polls. These include: (1) a Texas driver's license or personal identification card issued by the Department of Public Safety (“DPS”) that has not been expired for more than 60 days; (2) a U.S. military identification card with a photograph that has not been expired for more than 60 days; (3) a U.S. citizenship certificate with a photo; (4) a U.S. passport that has not been expired for more than 60 days; (5) a license to carry a concealed handgun issued by DPS that has not been expired for more than 60 days; or (6) an Election Identification Certificate (“EIC”) issued by DPS that has not been expired for more than 60 days.² Tex. Elec. Code § 63.0101 (West Supp. 2014).³

SB 14 states that DPS “may not collect a fee for an [EIC] or a duplicate [EIC],” Tex. Transp. Code § 521A.001(b) (West 2013), and allows DPS to promulgate rules for obtaining an EIC, id. § 521A.001(f) ; § 521.142. To receive an EIC, DPS rules require a...