Veasey v. Perry

• Citation: 71 F.Supp.3d 627
• Decision Date: 09 October 2014
• Docket Number: Civil Action No. 13–CV–00193.
• Parties: Marc VEASEY, et al., Plaintiffs, v. Rick PERRY, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

71 F.Supp.3d 627

Marc VEASEY, et al., Plaintiffs

v.Rick PERRY, et al., Defendants.

Civil Action No. 13–CV–00193.

United States District Court, S.D. Texas, Corpus Christi Division.

Signed Oct. 9, 2014.

Armand Derfner, Charleston, SC, Chad W. Dunn, Kembel Scott Brazil, Brazil & Dunn, Houston, TX, J. Gerald Hebert, Attorney at Law, Alexandria, VA, Joshua James Bone, Washington, DC, Neil G. Baron, Attorney at Law, Dickinson, TX, for Plaintiffs.

Arthur D'Andrea, John Barret Scott, Adam Warren Aston, Gregory David Whitley, Jennifer Marie Roscetti, John Reed Clay, Jr., Jonathan F. Mitchell, Lindsey Elizabeth Wolf, Stephen Ronald Keister, Stephen Lyle Tatum, Jr., Office of the Attorney General, Austin, TX, Ben Addison Donnell, Donnell Abernethy Kieschnick, Corpus Christi, TX, for Defendants.

OPINION

NELVA GONZALES RAMOS, District Judge.

The right to vote: It defines our nation as a democracy. It is the key to what Abraham Lincoln so famously extolled as a “government of the people, by the people, [and] for the people.”¹ The Supreme Court of the United States, placing the power of the right to vote in context, explained: “Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.”²

In this lawsuit, the Court consolidated four actions challenging Texas Senate Bill 14 (SB 14), which was signed into law on May 27, 2011. The Plaintiffs and Intervenors (collectively “Plaintiffs”)³ claim that SB 14, which requires voters to display one of a very limited number of qualified photo identifications (IDs) to vote, creates a substantial burden on the fundamental right to vote, has a discriminatory effect and purpose, and constitutes a poll tax. Defendants⁴ contend that SB 14 is an appropriate measure to combat voter fraud, and that it does not burden the right to vote, but rather improves public confidence in elections and, consequently, increases participation.

This case proceeded to a bench trial, which concluded on September 22, 2014. Pursuant to Fed.R.Civ.P. 52(a), after hearing and carefully considering all the evidence, the Court issues this Opinion as its findings of fact and conclusions of law. The Court holds that SB 14 creates an unconstitutional burden on the right to vote, has an impermissible discriminatory effect against Hispanics⁵ and African–Americans, and was imposed with an unconstitutional discriminatory purpose. The Court further holds that SB 14 constitutes an unconstitutional poll tax.

I.TEXAS'S HISTORY WITH RESPECT TO RACIAL DISPARITY IN VOTING RIGHTS

The careful and meticulous scrutiny of alleged infringement of the right to vote, which this Court is legally required to conduct, includes understanding the history of impairments that have plagued the right to vote in Texas, the racially discriminatory motivations and effects of burdensome qualifications on the right to vote, and their undeniable legacy with respect to the State's minority population. This uncontroverted and shameful history was perhaps summed up best by Reverend Peter Johnson, who has been an active force in the civil rights movement since the 1960s. “They had no civil rights towns or cities in the State of Texas because of the brutal, violent intimidation and terrorism that still exists in the State of Texas; not as overt as it was yesterday. But east Texas is Mississippi 40 years ago.”⁶

State Senator Rodney Ellis testified about the horrific hate crime in the east Texas town of Jasper in the late 1990s in which James Byrd, an African–American man targeted for his race, was dragged down the street until he died.⁷ A few years later, two African–American city council members spearheaded the effort to name a highly-qualified African–American as police chief in Jasper. Thereafter, those city council members were removed from their district council seats through “a strange quirk in the law” that allowed an at-large recall election.⁸

A. Access to the Polls

This anecdote demonstrating Texas's racially charged communities, the power of the polls, and the use of election devices to defeat the interests of the minority population is, unfortunately, no aberration. Dr. O. Vernon Burton has focused much of his career in American History on the issue of race relations.⁹ Dr. Burton testified about the use in Texas of various election devices to suppress minority voting from the early days of Texas through today. Other experts, including Dr. Chandler Davidson, a professor emeritus of sociology and political science at Rice University, and George Korbel, an attorney with an expertise in voting rights, corroborated Dr. Burton's findings. This history is summed up as follows:

• 1895–1944: All–White Primary Elections

• On the heels of Reconstruction, freed slaves and other minority men were just gaining access to the right to vote. The white primary method denied minority participation in primaries which effectively disenfranchised minority voters because Texas was dominated by a single political party (the Democratic Party) such that the primary election was the only election that mattered. The state law that mandated white primaries was found unconstitutional by the Supreme Court in 1927.¹⁰

• In response, the Texas Legislature passed a facially neutral law allowing the political parties to determine who was qualified to vote in their primaries, resulting in the parties banning minority participation. This law was held unconstitutional in 1944.¹¹

• 1905–1970: Literacy and “Secret Ballot” Restrictions

• The Terrell Election Law, which also enabled white primaries, prohibited voters from taking people with them to the polls to assist them in reading and interpreting the ballot. Only white Democratic election judges were permitted to assist these voters who could not verify that their votes were cast as intended. Because minority voters had not been taught to read while enslaved or were subject to post-Civil War limited and segregated educational opportunities, and could not use their own language interpreter, these restrictions were struck down in 1970 as rendering voting an empty ritual.¹²

• 1902–1966: Poll Taxes

• The Texas Constitution included the requirement that voters pay a $1.50 poll tax¹³ as a prerequisite for voting.¹⁴ While race-neutral on its face, this was intended to, and had the effect of, suppressing the African–American vote. In 1964, the practice was eliminated as to federal elections when the 24th Amendment to the United States Constitution was adopted.¹⁵

• However, Texas retained the poll tax for elections involving only state issues and campaigns. This practice was ruled unconstitutional as disenfranchising African–Americans in 1966.¹⁶

• 1966–1976: Voter Re–Registration and Purging

• Having lost the poll tax, the Texas Legislature passed a re-registration requirement by which voters had to re-register annually in order to vote. It was characterized as a “poll tax without the tax.” Because of its substantial disenfranchising effect, it was ruled unconstitutional in 1971.¹⁷

• In response, Texas enacted a purge law requiring re-registration of the entire electorate. Because Texas was, by then, subject to the Voting Rights Act (VRA) preclearance requirements, the United States Department of Justice (DOJ) objected to the change in the law and it was ultimately enjoined by a federal court in 1982.¹⁸

• 1971–2008: Waller County Students

• In 1971, after the 26th Amendment extended the vote to those 18 years old and older, Waller County which was home to Prairie View A & M University (PVAMU), a historically Black university, became troubled with race issues. Waller County's tax assessor and voter registrar prohibited students from voting unless they or their families owned property in the county. This practice was ended by a three judge court in 1979.¹⁹

• In 1992, a county prosecutor indicted PVAMU students for illegally voting, but dropped the charges after receiving a protest from the DOJ.²⁰

• In 2003, a PVAMU student ran for the commissioner's court. The local district attorney and county attorney threatened to prosecute students for voter fraud—for not meeting the old domicile test. These threatened prosecutions were enjoined, but Waller County then reduced early voting hours, which was particularly harmful to students because the election day was during their spring break. After the NAACP filed suit, Waller County reversed the changes to early voting and the student narrowly won the election.²¹

• In 2007–08, during then Senator Barack Obama's campaign for president, Waller County made a number of voting changes without seeking preclearance. The county rejected “incomplete” voter registrations and required volunteer deputy registrars (VDRs) to personally find and notify the voters of the rejection. The county also limited the number of new registrations any VDR could submit, thus limiting the success of voter registration drives. These practices were eventually prohibited by a consent decree.²²

• 1970–2014: Redistricting

• In every redistricting cycle since 1970, Texas has been found to have violated the VRA with racially gerrymandered districts.²³

This history describes not only a penchant for discrimination in Texas with respect to voting, but it exhibits a recalcitrance that has persisted over generations despite the repeated intervention of the federal government and its courts on behalf of minority citizens.

In each instance, the Texas Legislature relied on the justification that its discriminatory measures were necessary to combat voter fraud.²⁴ In some instances, there were admissions that the legislature did not want minorities voting.²⁵ In other instances, the laws that the courts deemed discriminatory appeared neutral on their face. There has been a clear and disturbing pattern of discrimination in the name of combatting voter fraud in Texas. In this case, the...