843 F.3d 592 (4th Cir. 2016), 16-1605, Lee v. Virginia State Board of Elections

Docket Nº:16-1605
Citation:843 F.3d 592
Opinion Judge:NIEMEYER, Circuit Judge:
Party Name:BARBARA H. LEE; GONZALO J. AIDA BRESCIA; DEMOCRATIC PARTY OF VIRGINIA, Plaintiffs - Appellants, v. VIRGINIA STATE BOARD OF ELECTIONS; JAMES B. ALCORN, in his capacity as Chairman of the Virginia State Board of Elections; DR. CLARA BELLE WHEELER, in her capacity as Vice-Chair of the Virginia State Board of Elections; SINGLETON B. MCALLISTER, in her
Attorney:Bruce Van Spiva, PERKINS COIE LLP, Washington, D.C., for Appellants. Mark Fernlund Hearne, II, ARENT FOX LLP, St. Louis, Missouri, for Appellees. Marc E. Elias, Elisabeth C. Frost, Amanda R. Callais, Washington, D.C., Joshua L. Kaul, PERKINS COIE LLP, Madison, Wisconsin, for Appellants. Dana J. F...
Judge Panel:Before NIEMEYER, SHEDD, and AGEE, Circuit Judges. Judge Niemeyer wrote the opinion, in which Judge Shedd and Judge Agee joined.
Case Date:December 13, 2016
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
SUMMARY

At issue in this case was Va. Code 24.2-643(B), the voter identification law enacted as part of SB 1256. Plaintiffs alleged that the statutory requirement that voters present photo identification when they vote or shortly thereafter violates the Voting Rights Act and the federal Constitution. Specifically, Plaintiffs claimed hat the photo identification requirement “unduly burdens the right to... (see full summary)

 
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Page 592

843 F.3d 592 (4th Cir. 2016)

BARBARA H. LEE; GONZALO J. AIDA BRESCIA; DEMOCRATIC PARTY OF VIRGINIA, Plaintiffs - Appellants,

v.

VIRGINIA STATE BOARD OF ELECTIONS; JAMES B. ALCORN, in his capacity as Chairman of the Virginia State Board of Elections; DR. CLARA BELLE WHEELER, in her capacity as Vice-Chair of the Virginia State Board of Elections; SINGLETON B. MCALLISTER, in her capacity as Secretary of the Virginia State Board of Elections; VIRGINIA DEPARTMENT OF ELECTIONS; EDGARDO CORTES, in his capacity as Commissioner of the Virginia Department of Elections, Defendants - Appellees.

VIRGINIA ELECTION OFFICIALS AND VOTERS; JUDICIAL EDUCATION PROJECT, Amici Supporting Appellees

No. 16-1605

United States Court of Appeals, Fourth Circuit

December 13, 2016

Argued September 22, 2016

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. (3:15-cv-00357-HEH-RCY). Henry E. Hudson, District Judge.

ARGUED:

Bruce Van Spiva, PERKINS COIE LLP, Washington, D.C., for Appellants.

Mark Fernlund Hearne, II, ARENT FOX LLP, St. Louis, Missouri, for Appellees.

ON BRIEF:

Marc E. Elias, Elisabeth C. Frost, Amanda R. Callais, Washington, D.C., Joshua L. Kaul, PERKINS COIE LLP, Madison, Wisconsin, for Appellants.

Dana J. Finberg, Sara T. Schneider, San Francisco, California, Kirsten Hart, Los Angeles, California, Stephen S. Davis, ARENT FOX LLP, Clayton, Missouri, for Appellees.

Michael A. Carvin, Anthony J. Dick, Stephen A. Vaden, JONES DAY, Washington, D.C., for Amici Curiae.

Before NIEMEYER, SHEDD, and AGEE, Circuit Judges. Judge Niemeyer wrote the opinion, in which Judge Shedd and Judge Agee joined.

OPINION

NIEMEYER, Circuit Judge:

The plaintiffs challenge Virginia Code § 24.2-643(B), the voter identification law enacted as part of " SB 1256." 2013 Va. Acts ch. 725. They allege that the statutory requirement that voters present photo identification when they vote or shortly thereafter violates the Voting Rights Act of 1965 and the Constitution.

The Virginia law provides: (1) that all voters are required to present a photo identification to cast a ballot in all elections but are allowed, without photo identification, to cast a provisional ballot subject to " cure" ; (2) that voters who cast provisional ballots can cure their votes by presenting a photo identification in person, by fax, or by email within three days after the election; (3) that a broad range of photo identification satisfies the photo identification requirement, including publicly and privately issued forms of identification, whether current or recently expired; and (4) that if a voter does not possess an acceptable form of photo identification, Virginia's Board of Elections must provide one to the voter free of charge and without any requirement that the voter present documentation. In enacting SB 1256, the Virginia legislature sought to synchronize its requirements with the Help America Vote Act (" HAVA" ), 42 U.S.C. § 15483, a federal law that requires photo identification for first-time voters registering by mail in federal elections.

The plaintiffs commenced this action challenging SB 1256 under § 2 of the Voting Rights Act, the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Fifteenth Amendment, and the Twenty-Sixth Amendment, arguing that the photo identification requirement " unduly burdens the right to vote, imposes discriminatory burdens on African Americans and Latinos, and was enacted with the intent to discriminate against minorities, young voters, and Democrats."

Following a two-week bench trial, the district court found that the plaintiffs had failed to present evidence sufficient to support their claims. From the district court's final judgment dated May 19, 2016, the plaintiffs filed this appeal. For the reasons that follow, we affirm.

I

Since 1996, Virginia has required voters to present identification before casting ballots. Originally, Virginia law permitted registered voters who lacked identification to vote by executing an affirmation of identity at their polling places. In 2012, the General Assembly enacted SB 1, which eliminated the self-affirmation procedure while broadening the acceptable forms of identification, some of which were non-photographic. 2012 Va. Acts ch. 839. Because § 5 of the Voting Rights Act at that time subjected Virginia to preclearance by the U.S. Department of Justice, Virginia submitted SB 1 for approval, and the Justice Department approved it.

A year later, on March 25, 2013, the General Assembly enacted SB 1256, codified in various sections of Title 24.2 of the Virginia Code but principally at § 24.2-643, to require photo identification for all voters in all elections. This change synchronized SB 1 and the federal statute HAVA, which imposed a photo-identification requirement on all individuals who had registered by mail and were voting for the first time in a federal election. For those who did not have any form of identification, SB 1256 required the Board of Elections to provide the voter with a free photo ID without requiring the voter to provide any documentation. Voters could obtain these free photo IDs from the 133 general registrars' offices and additionally from mobile voter-ID stations located throughout Virginia. To obtain a free photo ID, the voter needed only to provide his or her name, address, birthdate, and the last four digits of his or her social security number. The law also authorized voters to use photo IDs that had expired within the last year.

Because Virginia was still subject to § 5's preclearance by the Department of Justice, SB 1256 was enacted with the understanding that it would be evaluated under § 5. The law was never subjected to preclearance, however, because, after SB 1256's enactment, the Supreme Court held § 5 unenforceable in Shelby County v. Holder, 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013).

On June 11, 2015, plaintiffs Barbara H. Lee, an African American and a Democrat who resides in Staunton, Virginia; Gonzalo J. Aida Brescia, a Latino and a Democrat who resides in Richmond, Virginia; and the Democratic Party of Virginia commenced this action against Virginia election officials to challenge SB 1256. They alleged (1) that SB 1256 violated § 2 of the Voting Rights Act; (2) that SB 1256 imposed undue burdens on the right to vote and disparate treatment of individuals without a rational basis, in violation of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment; (3) that SB 1256 amounted to " partisan fencing" (a law that fences out from the voting franchise a sector of the population), in violation of the First and Fourteenth Amendments; (4) that SB 1256 discriminated on the basis of race in violation of the Fourteenth and Fifteenth Amendments; and (5) that SB 1256 violated the Twenty-Sixth Amendment by failing " to take action to reduce wait times to vote," thus suppressing the number of votes cast by young voters.

The district court conducted a seven-day bench trial over a period of two weeks, beginning on February 22, 2016, and, after receiving post-trial briefs, entered final judgment, concluding that the plaintiffs had " failed to prove by a preponderance of the evidence that the Virginia Voter ID law, either in its enactment or implementation, contravenes the Voting Rights Act, First Amendment, Fourteenth Amendment, Fifteenth Amendment, or the Twenty-Sixth Amendment." Consistent with this conclusion, the court dismissed all of plaintiffs' claims and denied the plaintiffs' request for injunctive relief. In support of its judgment, the court filed a 62-page Memorandum Opinion, reciting the governing legal principles and standards, summarizing the testimony of witnesses presented by the parties, and making findings of fact and conclusions of law.

The court recited the testimony of the Secretary of the State Board of Elections that SB 1256 was modeled after voter ID laws adopted in other States, such as Georgia and South Carolina, that had been precleared by the Department of Justice pursuant to § 5 of the Voting Rights Act. The court also found that, after the enactment of SB 1256, the Board of Elections " launched a state-wide pre-election campaign informing voters of the photo identification requirement." This included the public posting of some 500,000 posters describing the law and the " sending [of] 86,000 postcards to persons on the active voter list who, DMV records reflected, possessed no DMV-issued ID and would likely need a photo ID to vote under the new law."

The court found that during the election of 2014, when SB 1256 was in effect, " 773 provisional ballots were cast by voters without valid identification" and that during the election of 2015, " 408 provisional ballots were cast by voters with no acceptable form of...

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