Veasey v. Perry

• Decision Date: 14 October 2014
• Docket Number: No. 14–41127.,14–41127.
• Parties: 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; Dallas County, Texas, Plaintiffs–Appellees Texas Association of Hispanic County Judges and County Commissioners, Intervenor Plaintiffs–Appellees v. Rick PERRY, in his Official Capacity as Governor of Texas; Nandita Berry, in her Official Capacity as Texas Secretary of State; State of Texas; Steve McGraw, 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; Nandita Berry, in her Official Capacity as Texas Secretary of State; Steve McGraw, 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. Nandita Berry, in her Official Capacity as Texas Secretary of State; Steve McGraw, 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; Nandita Berry, in her Official Capacity as Texas Secretary of State; State of Texas; Steve McGraw, in his Official Capacity as Director of the Texas Department of Public Safety, Defendants–Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

769 F.3d 890

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;

Dallas County, Texas, Plaintiffs–AppelleesTexas Association of Hispanic County Judges and County Commissioners, Intervenor Plaintiffs–Appelleesv.Rick PERRY, in his Official Capacity as Governor of Texas;

Nandita Berry, in her Official Capacity as Texas Secretary of State;

State of Texas;

Steve McGraw, 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–Appelleesv.State of Texas;

Nandita Berry, in her Official Capacity as Texas Secretary of State;

Steve McGraw, 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–Appelleesv.Nandita Berry, in her Official Capacity as Texas Secretary of State;

Steve McGraw, 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–Appelleesv.State of Texas;

Nandita Berry, in her Official Capacity as Texas Secretary of State;

State of Texas;

Steve McGraw, 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.

Oct. 14, 2014.

Chad Wilson Dunn, Esq., Brazil & Dunn, Houston, TX, J. Gerald Hebert, Esq., Alexandria, VA, Anna Baldwin, Diana Katherine Flynn, Erin Helene Flynn, Esq., Robert Acheson Koch, U.S. Department of Justice, Washington, DC, John Albert Smith, III, Assistant U.S. Attorney, U.S. Attorney's Office, Corpus Christi, TX, Vishal Agraharkar, Jennifer Clark, New York, NY, Jose Garza, San Antonio, TX, for Plaintiff–Appellee.

Leah Camille Aden, Esq., Natasha M. Korgaonkar, Esq., Christina Swams, Legal Defense & Educational Fund, Inc., New York, NY, Rolando Leo Rios, I, Esq., Law Office of Rolando L. Rios, San Antonio, TX, for Intervenor Plaintiff–Appellee.

Adam Warren Aston, Arthur Cleveland D'Andrea, John Barrett Scott, Office of the Attorney General, Austin, TX, for Defendant–Appellant.

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

Before CLEMENT, HAYNES, and COSTA, Circuit Judges.

Opinion

EDITH BROWN CLEMENT, Circuit Judge:

Early voting in Texas begins on Monday, October 20. On Saturday, October 11—just nine days before early voting begins and just 24 days before Election Day—the district court entered a final order striking down Texas's voter identification laws. By this order, the district court enjoined the implementation of Texas Senate Bill 14 (“SB 14”) of the 2011 Regular Session, which requires that voters present certain photographic identification at the polls. The district court also ordered that the State of Texas (“State”) instead implement the laws that were in force before SB 14's enactment in May of 2011. Based primarily on the extremely fast-approaching election date, we STAY the district court's judgment pending appeal.

I.

SB 14 was signed into law on May 27, 2011, and its voter identification requirements became effective on January 1, 2012. 2011 Tex. Sess. Law Serv. Ch. 123 (West) (S.B.14). These requirements have been implemented in at least three prior elections.

On June 26, 2013, this lawsuit challenging SB 14 was filed. On Thursday, October 9, 2014 the district court foreshadowed its ultimate judgment, issuing an opinion saying that it intended to enjoin SB 14. The lengthy, 143–page opinion followed a nine-day bench trial. The district court opined that SB 14 is unconstitutional and violates the Voting Rights Act. But it did not issue a final judgment.

On Friday, October 10, the State filed an advisory requesting that the district court enter a final, appealable judgment. When the district court declined to do so by close of business on Friday, October 10, the State filed a petition for writ of mandamus or, in the alternative, an emergency motion for stay pending appeal. Upon the entry of the district court's final judgment on Saturday, October 11, the State also filed a notice of appeal. Accordingly, we construed the State's motion as an emergency motion for stay pending appeal and ordered that responses be filed within 24 hours. Five responses were filed.

II.

A stay pending appeal “simply suspends judicial alteration of the status quo.” Nken v. Holder, 556 U.S. 418, 429, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (internal quotation marks and alteration omitted). We consider four factors in deciding a motion to stay pending appeal:

(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.

Id. at 426, 129 S.Ct. 1749. “The first two factors of the traditional standard are the most critical.” Id. at 434, 129 S.Ct. 1749.

III.

This is not a run-of-the-mill case; instead, it is a voting case decided on the eve of the election. The judgment below substantially disturbs the election process of the State of Texas just nine days before early voting begins. Thus, the value of preserving the status quo here is much higher than in most other contexts.

A.

The Supreme Court has repeatedly instructed courts to carefully consider the importance of preserving the status quo on the eve of an election. In the similar context of determining whether to issue an injunction,¹ the Supreme Court held that, “[f]aced with an application to enjoin operation of voter identification procedures just weeks before an election, the Court of Appeals was required to weigh, in addition to the harms attendant upon issuance or nonissuance of an injunction, considerations specific to election cases and its own institutional procedures.” Purcell v. Gonzalez, 549 U.S. 1, 4, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006) (per curiam). One of these considerations is that “[c]ourt orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.” Id. at 4–5, 127 S.Ct. 5.²

Further, in the apportionment context, the Supreme Court has instructed that, “[i]n awarding or withholding immediate relief, a court is entitled to and should consider the proximity of a forthcoming election and the mechanics and complexities of state election laws, and should act and rely upon general equitable principles.” Reynolds v. Sims, 377 U.S. 533, 585, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (emphasis added). Accordingly, “under certain circumstances, such as where an impending election is imminent and a State's election machinery is already in progress, equitable considerations might justify a court in withholding the granting of immediately effective relief in a legislative apportionment case, even though the existing apportionment scheme was found invalid.” Id.

The Supreme Court itself has declined to interfere with a fast-approaching election, even after finding that the ballots unconstitutionally excluded certain candidates. Williams v. Rhodes, 393 U.S. 23, 34–35, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968). The Court found on October 15, 1968 that:

Certainly at this late date it would be extremely difficult, if not impossible, for Ohio to provide still another set of ballots. Moreover, the confusion that would attend such a last-minute change poses a risk of interference with the rights of other Ohio citizens, for example, absentee voters.

Id. at 35, 89 S.Ct. 5.

Here, the district court's decision on October 11, 2014 presents similar logistical problems because it will “be extremely difficult, if not impossible,” for the State to adequately train its 25,000 polling workers at 8,000 polling places about the injunction's new requirements in time for the start of early voting on October 20 or even election day on November 4. The State represents that it began training poll workers in mid-September, and at least some of them have already completed their training. The State also represents that it will be unable to reprint the “election manuals that poll workers use for guidance,” and so the election laws “will be conveyed by word of mouth alone.” This “last-minute change poses a risk of interference with the rights of other [Texas] citizens,” Williams, 393 U.S. at 35, 89 S.Ct. 5, because we can easily infer that this late retraining by word of mouth will result in markedly inconsistent treatment of voters at different polling places throughout the State.

In their response brief, the Veasey–LULAC plaintiffs concede that, “[u]nder the district court's injunction, perhaps some poll officials in some isolated precincts might mistakenly turn a registered voter away because the voter fails to comply with SB 14.” They discount this concern because “this voter would also be disenfranchised were this Court to issue a stay.” But they fail to recognize that inconsistent treatment of voters, even in just “some isolated precincts,” raises a significant constitutional concern, particularly when this disparate treatment is virtually guaranteed by the late issuance of the injunction.

B.

The Supreme Court has continued to look askance at changing election laws on the eve of an election. Just this term, the Supreme Court halted three Court of Appeals decisions that would have altered the rules of this fall's general election shortly before it begins. See Frank v. Walker, 14A352, –––U.S. ––––, 135...