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Veasey v. Abbott

United States Court of Appeals, Fifth Circuit

April 27, 2018

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

          Appeal from the United States District Court for the Southern District of Texas

          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, 137 S.Ct. 612 (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-14 may have." Veasey II, 830 F.3d at 272. Nonetheless, the district court proceeded to issue an opinion on the SB 14 discriminatory purpose claim on April 1, 2017. In its 10-page opinion, the district court simply incorporated most of its prior findings, excluded most of those findings that this court found inadmissible, and reiterated the conclusion that SB 14 was enacted, at least in part, for a racially discriminatory purpose. The district court also ordered a hearing on remedial procedures to be conducted after the close of the legislative session.

         Senate Bill 5 ("SB 5") was enacted on May 31, 2017 as a legislative remedy to cure and replace SB 14. SB 5 is fashioned after the interim remedy and codifies a reasonable impediment procedure for voters who lack and cannot reasonably obtain a form of SB 14 identification. See S.B. 5, §§ 1-2. The same seven impediments listed in the interim remedy are provided to voters by SB 5. See id. § 2. Notably, these seven impediments cover every burden alleged by the 27 voters relied on by Plaintiffs at trial of their initial suit. Like the interim remedy, SB 5 requires a voter to swear or affirm under penalty of perjury that he has a reasonable impediment preventing the obtaining of compliant photo ID, and it prohibits election officials from questioning the reasonableness of the impediments sworn to by the voter. See S.B. 5 §§ 2-3.

         SB 5 differs from SB 14 in the following additional ways: (1) SB 5 extends the period within which an expired form of identification will be accepted for voting, (2) SB 5 expands the list of acceptable forms of identification, (3) SB 5 requires the implementation of mobile locations for obtaining election identification certificates, and (4) SB 5 removes the "other" option offered in the interim remedy. See id. §§ 2-3; see also Texas claims the open-ended "other" option was removed in SB 5 to address abuses from the November 2016 election.[1]

         Although SB 5 was not set to take effect until January 1, 2018, Texas agreed to implement the reasonable impediments provision laid out in the district court's interim remedy until then. Texas also publicly committed to provide written notice of the new requirement to all active registered voters by the end of 2017, train its election officials on SB 5 procedures, and spend $4 million over two years on voter education and outreach

         Following passage of SB 5, the State moved for reconsideration of the district court's discriminatory purpose finding in light of the amendments to SB 14. All parties agreed to rely on the existing record and forego an evidentiary hearing.[2] Indeed, Plaintiffs never sought leave to amend their Complaint to add claims specifically challenging SB 5.

         The district court denied the State's motion. On August 23, 2017, the court entered a remedial order permanently enjoining SB 14 as well as SB 5, vacating the interim remedy, and reinstating the pre-SB 14 law that lacked any photo voter ID requirement. The district court held that the interim remedy was "limited to addressing the discriminatory results claim, " and in light of its finding of a discriminatory purpose, the interim remedy was no longer appropriate and broader relief was warranted. The court placed the burden on the State, holding Texas failed to show SB 5 "fully ameliorates the discriminatory purpose or result of SB 14." Although the district court refused to find SB 5 violated § 2 of the VRA or the Constitution, [3] it nevertheless reasoned, "the Court's finding of discriminatory intent strongly favors a wholesale injunction against the enforcement of any vestige of the voter photo ID law, " and SB 5 "is built upon the 'architecture' of SB 14

         The district court ordered the commencement of a VRA § 3(c) preclearance bail-in hearing and issued broad relief enjoining the State from enforcing SB 14 and SB 5.[4] On September 5, 2017, this court granted the State's emergency motion and stayed the district court's orders until the final disposition of this appeal. Veasey v. Abbott, 870 F.3d 387, 392 (5th Cir. 2017).

         STANDARDS OF REVIEW

         This court reviews questions of jurisdiction de novo, including arguments that a case or controversy has become moot. See In re Scruggs, 392 F.3d 124, 128 (5th Cir. 2004).

         A district court's issuance of a permanent injunction to remedy a violation of § 2 of the VRA is reviewed for abuse of discretion. See United States v. Brown, 561 F.3d 420, 435 (5th Cir. 2009). However, where an injunction is "grounded in erroneous legal principles, " injunctive relief is not warranted and the district court's decision will be reviewed de novo. See Janvey v. Alguire, 647 F.3d 585, 592 (5th Cir. 2011) (quoting Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009)). Additionally, under this Circuit's precedent, a district court's interpretation of this court's remand order, "including whether the law-of-the-case doctrine or mandate rule forecloses any of the district court's action on remand, " is reviewed de novo. United States v. Elizondo, 475 F.3d 692, 695 (5th Cir. 2007).

         DISCUSSION

         On appeal, the state of Texas and the United States raise complementary arguments. The state contends initially that this case has become moot, requiring vacatur of the court's remand finding of intentional discrimination, by the passage of SB 5 in 2017. The State also seeks reversal of the district court's renewed finding of unconstitutional discrimination. Together, the state and the United States contend that the district court's remedial injunction must be reversed and SB 5 reinstated as a valid remedy for the Plaintiffs' claims. We consider each of these issues in turn.

         A. Mootness

         Ordinarily, a lawsuit challenging a statute would become moot by the legislature's enactment of a superseding law. Diffenderfer v. Cent. Baptist Church of Miami, Fla., Inc., 404 U.S. 412, 414, 92 S.Ct. 574, 575 (1972). In such a case, no live controversy remains concerning the old law, because it is no longer in force. Any federal court ruling on the old law would have no practical effect and the court's conclusions would constitute an advisory opinion. Further, dismissing as moot in light of the superseding statute would require the court to vacate its prior ruling. U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18, 29, 115 S.Ct. 386, 393 (1994).

         This is not the archetypal case. Veasey II remanded to the district court with instructions to (a) assume the "unwelcome obligation" of devising an interim remedy to eliminate the Section 2 Voting Rights Act violations pending the 2016 elections; (b) reconsider the finding of unconstitutional intentional discrimination without "facts" the en banc court held inapposite; and (c) be mindful that any new photo voter ID law subsequently passed by the state would "present a new circumstance not addressed here" and "concerns about a new bill would be the subject of a new appeal for another day." 830 F.3d at 270-71. The parties heatedly dispute the extent to which the district court properly carried out this court's mandate, but without doubt, the court's post-remand rulings touch each of these instructions.

         Consequently, this appeal arrives in a posture similar to Operation PUSH, in which this court affirmed the district court's conclusion that the state's legislative remedy for Section 2 violations was adequate. Miss. State Chapter, Operation PUSH, Inc. v. Mabus, 932 F.2d 400, 412-13 (5th Cir. 1991). This court evaluated both the liability findings and the new law pertinent to the question whether the district court abused its discretion. There was no suggestion of mootness arising from the passage of the responsive legislation, which was analyzed for its effectiveness as a proposed remedy. Id. at 409 (finding the challenge against the Section 2 violations "not moot" because the lower court's decision under the remedial legislation "was the remedy decision growing out of the holding under" the original legislation). While the sequence of events on remand differs from Operation PUSH, the same issues are before us on appeal: the status of the state's liability for intentional discrimination against indigent minority voters, and whether the district court abused its discretion in rejecting SB 5 as a remedy for the Plaintiffs' claims. This appeal is not moot.

         B. Scope of the State's Liability

         The Plaintiffs' claims, framed as violations of both Section 2 of the Voting Rights Act and the Fourteenth Amendment, attacked the alleged racial disparity in indigent minority voters' possession of and access to SB 14-required photo voter IDs. The Plaintiffs could not condemn the principle of requiring some type of photo ID, a principle upheld by the Supreme Court in Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 191, 128 S.Ct. 1610, 1616-17 (2008). Nor could Plaintiffs refute that over 95% of all Texas voters, irrespective of race, already possess ID satisfactory under SB 14. Their evidence thus targeted racially disparate indigency, the lack of indigents' ready access to drivers' licenses or birth certificates or EICs ("election identity cards"), and the law's limited exceptions to the photo ID requirement. Aside from expert testimony, 27 Plaintiffs' witnesses testified to their specific difficulties in complying with SB 14 on these grounds.

         Whatever the strength of the district court's renewed finding of purposeful discrimination by the Texas legislature, the discrimination has to be gauged by its impact on indigent minority Texas voters according to the evidence presented at trial. In any discrimination case, the proof of the extent of disparate impact or disparate treatment defines the scope of the defendant's liability. Thus focused, we need not review the court's liability findings because even if we were to affirm, the court's overreach in its remedial injunction and proceedings was an abuse of discretion meriting reversal.

         C. The Remedial Order

         The remedy for violations of voting rights is governed by traditional equitable standards. North Carolina v. Covington, 137 S.Ct. 2211 (2017) (per curiam) ("Relief in redistricting cases is 'fashioned in the light of well-known principles of equity.'") (citation omitted)). Even if the violation is founded on the Fourteenth Amendment, "[a]s with any equity case, the nature of the violation determines the scope of the remedy." Swann v. Charlotte Mecklenburg Bd. of Educ., 402 U.S. 1, 17, 91 S.Ct. 1267, 1276 (1971). In voting rights cases, the Supreme Court has cautioned that federal courts' equitable powers are broad but not unlimited. Whitcomb v. Chavis, 403 U.S. 124, 161, 91 S.Ct. 1858, 1878 (1971). Relief must be tailored to avoid undue interference with a legislature's judgment in order to appropriately reconcile constitutional requirements and legislative goals. Cook v. Luckett, 735 F.2d 912, 917 (5th Cir. 1984). Operation PUSH relied on these rules, see 932 F.2d at 406, as reiterated in our case law. See id. (citing Haitian Refugee Ctr. v. Smith, 676 F.2d 1023, 1041 (5th Cir. 1982) for the principle that an equitable remedy must be fashioned to address the constitutional violation established). Operation PUSH also noted that unless remedial legislation designed to address voting rights violations is itself infected with a discriminatory purpose, federal courts are obliged to defer to the legislative remedy. 932 F.2d at 406-07. See Upham v. Seamon, 456 U.S. 37, 40-41, 102 S.Ct. 1518, 1521 (1982); Westwego Citizens for Better Gov't v. City of Westwego, 946 F.2d 1109, 1123-24 (5th Cir. 1991); Wright v. City of Houston, Miss., 806 F.2d 634, 635 (5th Cir.1986); Kirksey v. Bd. of Supervisors of Hinds Cty., 554 F.2d 139, 142 (5th Cir. 1977) (en banc), cert. denied, 434 U.S. 968 (1977).[5]

         The district court here held that because SB 14 was enacted with a discriminatory purpose, its effects must be eliminated "root and branch." Because SB 5 retains characteristics of SB 14's photo voter ID requirements, the district court did not defer to the state. Indeed, the district court acknowledged it was "not clear" what would constitute a proper restraint from legislative intrusion but then held that "[e]ven if some measure of deference were required … that deference yields if SB 5 is not a full cure of the terms that render SB 14 discriminatory." The court burdened the state to prove that the new remedial statute lacks any residual discriminatory effect. After concluding that the state did not meet its burden, the court imposed the previously described injunction against both SB 14 and SB 5 and ordered a proceeding to determine the state's potential liability for Section 3(c) preclearance.

         This injunction and order far exceed the scope of the actual violations found by the court. Under the circumstances of this case, the court had no legal or factual basis to invalidate SB 5, and its contemplation of Section 3(c) relief accordingly fails as well. The remedial order constitutes an abuse of discretion. In contrast, until a plaintiff pleads and proves some constitutional or statutory infirmity ...


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