Veasey v. Abbott

13 F.4th 362

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-Crumley; Gordon Benjamin; Ken Gandy ; Evelyn Brickner, Plaintiffs—Appellees,

v.Greg ABBOTT, in his Official Capacity as Governor of Texas; State of Texas ; Ruth R. Hughs, in her Official Capacity as Texas Secretary of State, Defendants—Appellants,United States of America, Plaintiff—Appellee,Texas League of Young Voters Education Fund, Imani Clark, Intervenors Plaintiffs—Appellees,

v.State of Texas, Defendant—Appellant,Texas State Conference of NAACP Branches; Mexican American Legislative Caucus, Texas House of Representatives, Plaintiffs—Appellees,

v.Greg Abbott, in his Official Capacity as Governor of Texas; Ruth R. Hughs, in her Official Capacity as Texas Secretary of State ; State of Texas, Defendants—Appellants,Eulalio Mendez, Jr.; Lionel Estrada; Estela Garcia Espinosa; Maximina Martinez Lara; La Union Del Pueblo Entero, Incorporated, Plaintiffs—Appellees,

v.State of Texas ; Ruth R. Hughs, in her Official Capacity as Texas Secretary of State, Defendants—Appellants.

No. 20-40428

United States Court of Appeals, Fifth Circuit.

FILED September 3, 2021

Chad Wilson Dunn, Esq., Brazil & Dunn, Austin, TX, Neil G. Baron, League City, TX, Armand G. Derfner, Esq., Derfner & Altman, L.L.C., Charleston, SC, Mark P. Gaber, Joseph G. Hebert, Danielle Marie Lang, Campaign Legal Center, Washington, DC, for Plaintiff-Appellee Marc Veasey.

Chad Wilson Dunn, Esq., Brazil & Dunn, Austin, TX, Armand G. Derfner, Esq., Derfner & Altman, L.L.C., Charleston, SC, Mark P. Gaber, Joseph G. Hebert, Danielle Marie Lang, Campaign Legal Center, Washington, DC, for Plaintiffs-Appellees Jane Hamilton, Sergio DeLeon, Floyd Carrier, Anna Burns, Michael Montez, Penny Pope, Oscar Ortiz, Koby Ozias, League of United Latin American Citizens, John Mellor-Crumley, Gordon Benjamin, Ken Gandy, Evelyn Brickner.

Thomas Evans Chandler, Trial Attorney, Anna Marks Baldwin, U.S. Department of Justice, Civil Rights Div - Appellate Section, Washington, DC, for Plaintiff-Appellee United States of America.

Ezra D. Rosenberg, Esq., Lawyers' Committee for Civil Rights Under Law, Washington, DC, Jennifer Clark, Myrna Perez, Deputy Director, NYU School of Law, Brennan Center for Justice, New York, NY, Lindsey Beth Cohan, Dechert, L.L.P., Austin, TX, for Plaintiffs-Appellees Texas State Conference of NAACP Branches, Mexican American Legislative Caucus, Texas House of Representatives.

Susan F. Zinn, Alexander Stamm, Texas RioGrande Legal Aid, Incorporated, San Antonio, TX, for Plaintiffs-Appellees Eulalio Mendez, Jr., Estela Garcia Espinosa, Maximina Martinez Lara, La Union Del Pueblo Entero, Incorporated.

Leah Camille Aden, Esq., Janai S. Nelson, Esq., Deuel Ross, Samuel Spital, Victoria Wenger, NAACP, Legal Defense & Educational Fund, Incorporated, New York, NY, Jonathan Edward Paikin, Esq., Litigation Counsel, Kelly Patrick Dunbar, Wilmer Cutler Pickering Hale and Dorr, L.L.P., Washington, DC, for Intervenor Plaintiff-Appellee Imani Clark.

Lanora Christine Pettit, Office of the Attorney General, Office of the Solicitor General, Austin, TX, for Defendants-Appellants Greg Abbott, State of Texas, Ruth Hughs.

Before King, Dennis, and Ho, Circuit Judges.

James C. Ho, Circuit Judge:

By a sharply divided vote and over multiple spirited dissents, our en banc court held unlawful a Texas statute requiring voters to present photo ID in order to vote. See Veasey v. Abbott , 830 F.3d 216 (5th Cir. 2016) (en banc). We are of course bound by that decision. The only question in this appeal is whether Plaintiffs are "prevailing parties" and thereby entitled to recover attorneys’ fees under 42 U.S.C. § 1988(b) and 52 U.S.C. § 10310(e).

It seems obvious that they are. Plaintiffs successfully challenged the Texas photo ID requirement before our en banc court, and used that victory to secure a court order permanently preventing its enforcement during the elections in 2016 and 2017. That court order substituted the photo ID requirement with a mere option—which of course defeats the whole purpose of a mandate. And those elections are now well in the past. The State of Texas obviously cannot go back in time and re-run the 2016 and 2017 elections under a photo ID requirement. Cf. Stringer v. Whitley , 942 F.3d 715, 726 (5th Cir. 2019) (Ho, J., concurring) ("Plaintiffs have indeed endured an injury in the past. They were unable to exercise their right to vote in past election cycles. And it is a right they will never be able to recover.").

Not surprisingly, then, the State readily admits that any suggestion that Plaintiffs did not prevail in these proceedings would be "counterintuitive," to say the least. We agree and accordingly affirm.

I.

Texas enacted Senate Bill 14 (SB 14) in 2011 and began enforcing it in 2013. Act of May 16, 2011 82nd Leg., R.S., ch. 123, 2011 Tex. Gen. Laws. 619. SB 14 required voters in Texas to present one of six forms of government-issued photo identification at the polls in order to vote. See Veasey , 830 F.3d at 225 (listing the acceptable forms of photo identification).

Plaintiffs sued to enjoin the enforcement of SB 14, alleging, inter alia , that the photo identification requirement violated the Fourteenth and Fifteenth Amendments of the Constitution and § 2 of the Voting Rights Act. The district court concluded that SB 14 had an impermissible discriminatory effect on certain minority voters in Texas and permanently enjoined the enforcement of SB 14 accordingly. See Veasey v. Perry , 71 F. Supp. 3d 627, 633, 707–08 (S.D. Tex. 2014).

This court sitting en banc affirmed the district court's discriminatory effect finding, while reversing and remanding on other aspects of the district court's decision, such as the finding that SB 14 was enacted with a discriminatory purpose. Veasey , 830 F.3d at 264, 272. We directed the district court to enter an "interim remedy for SB 14's discriminatory effect that disrupts voter identification rules for the 2016 election season as little as possible, yet eliminates the Section 2 discriminatory effect violation." Id. at 272. The court's "primary concern" was to "ensure that SB 14's discriminatory effect [was] ameliorated as Section 2 requires in time for the November 2016 election." Id. at 242–43.

On remand in August 2016, the district court entered an order, agreed to by all parties, for an interim remedy for that November's elections. Under the order,

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.

Veasey v. Abbott , 888 F.3d 792, 796 (5th Cir. 2018). The order also expanded the range of acceptable photo IDs from those effective within sixty days of the election to those effective within four years of the election. The interim remedy would govern the November 2016 general election and remain in effect pending further order of the district court.

After the district court on remand again concluded that SB 14 was enacted with a discriminatory purpose, Veasey v. Abbott , 249 F. Supp. 3d 868, 876 (S.D. Tex. 2017), a motions panel of this court stayed the district court's order pending appeal and instructed that the "Interim Order and its reasonable impediment procedures will remain in effect for elections in 2017." Veasey v. Abbott , 870 F.3d 387, 391–92 (5th Cir. 2017).

Then, in May 2017, Texas enacted Senate Bill 5 (SB 5) "as a legislative remedy to cure and replace SB 14." Veasey , 888 F.3d at 797.

Texas modeled SB 5 after the interim order. In particular, it codified the reasonable impediment procedure for voters who could not obtain the photo identification required under SB 14. Id. SB 5 also "(1) ... extend[ed] the period within which an expired form of identification [would] be accepted for voting, (2) ... expand[ed] the list of acceptable forms of identification, (3) ... require[d] the implementation of mobile locations for obtaining election identification certificates, and (4) ... remove[d] the ‘other’ option offered in the interim remedy." Id.

Following the enactment of SB 5, Defendants moved for reconsideration of the district court's discriminatory purpose finding. The district court denied the motion, granted Plaintiffs declaratory relief that SB 14 violates § 2 of the VRA and the Fourteenth and Fifteenth Amendments, permanently enjoined enforcement of SB 14 and SB 5, vacated the interim remedy, and reinstated the pre-SB 14 law that did not require voters to present photo identification at the polls. Veasey v. Abbott , 265 F. Supp. 3d 684, 698, 700 (S.D. Tex. 2017). Defendants appealed.

We reversed and rendered the district court's permanent injunction and order for potential further relief. Veasey , 888 F.3d at 804. We observed that SB 5 "affords a generous, tailored remedy for the actual violations found," id. at 801, "was designed to remedy...