870 F.3d 387 (5th Cir. 2017), 17-40884, Veasey v. Abbott

Docket Nº:17-40884
Citation:870 F.3d 387
Opinion Judge:PER CURIAM:
Party Name: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...
Attorney:For MARC VEASEY, Plaintiff - Appellee: Chad Wilson Dunn, Esq., Brazil & Dunn, Houston, TX; Neil G. Baron, League City, TX; Armand G. Derfner, Esq., Derfner & Altman, L.L.C., Charleston, SC; J. Gerald Hebert, Esq., Paul March Smith, Esq., Washington, DC. For JANE HAMILTON, SERGIO DELEON, FLOYD CAR...
Judge Panel:Before SMITH, ELROD, and GRAVES, Circuit Judges. JAMES E. GRAVES, JR., Circuit Judge, dissenting:
Case Date:September 05, 2017
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 387

870 F.3d 387 (5th Cir. 2017)

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

No. 17-40884

United States Court of Appeals, Fifth Circuit

September 5, 2017

Page 388

[Copyrighted Material Omitted]

Page 389

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

Veasey v. Abbott, (S.D. Tex., Aug. 23, 2017)

For MARC VEASEY, Plaintiff - Appellee: Chad Wilson Dunn, Esq., Brazil & Dunn, Houston, TX; Neil G. Baron, League City, TX; Armand G. Derfner, Esq., Derfner & Altman, L.L.C., Charleston, SC; J. Gerald Hebert, Esq., Paul March Smith, Esq., Washington, DC.

For JANE HAMILTON, SERGIO DELEON, FLOYD CARRIER, ANNA BURNS, MICHAEL MONTEZ, PENNY POPE, OSCAR ORTIZ, JOHN MELLOR-CRUMMEY, GORDON BENJAMIN, KEN GANDY, EVELYN BRICKNER, Plaintiffs - Appellees: Chad Wilson Dunn, Esq., Brazil & Dunn, Houston, TX; Neil G. Baron, League City, TX; Armand G. Derfner, Esq., Derfner & Altman, L.L.C., Charleston, SC; J. Gerald Hebert, Esq., Danielle Marie Lang, Washington, DC.

For KOBY OZIAS, DALLAS COUNTY, TEXAS, Plaintiffs - Appellees: Chad Wilson Dunn, Esq., Brazil & Dunn, Houston, TX; Armand G. Derfner, Esq., Derfner & Altman, L.L.C., Charleston, SC; J. Gerald Hebert, Esq., Danielle Marie Lang, Washington, DC.

For LEAGUE OF UNITED LATIN AMERICAN CITIZENS, Plaintiff - Appellee: Chad Wilson Dunn, Esq., Brazil & Dunn, Houston, TX; Armand G. Derfner, Esq., Derfner & Altman, L.L.C., Charleston, SC; J. Gerald Hebert, Esq., Danielle Marie Lang, Washington, DC; Luis Roberto Vera, Jr., Luis Roberto Vera, Jr. & Associates, San Antonio, TX.

For UNITED STATES OF AMERICA, Plaintiff - Appellee: Thomas Evans Chandler, Trial Attorney, Anna Marks Baldwin, Diana Katherine Flynn, Gregory Bryan Friel, Esq., Special Counsel, U.S. Department of Justice, Civil Rights Div - Appellate Section, Washington, DC; Bruce I. Gear, U.S. Department of Justice, Washington, DC; John Albert Smith, III, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Corpus Christi, TX.

For MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES, Plaintiff - Appellee: Ezra D. Rosenberg, Esq., Lawyers' Committee for Civil Rights Under Law, Washington, DC; Lindsey Beth Cohan, Dechert, L.L.P., Austin, TX; Jon Marshall Greenbaum, Esq., Director, Lawyers' Committee for Civil Rights Under Law, Washington, DC; Myrna Perez, Deputy Director, NYU School of Law, New York, NY; Sidney Samuel Rosdeitcher, I, Esq., Paul, Weiss, Rifkind, Wharton & Garrison, L.L.P., New York, NY; Neil A. Steiner, Michelle Yeary, Dechert, L.L.P., Princeton, NJ.

For TEXAS STATE CONFERENCE OF NAACP BRANCHES, Plaintiff - Appellee: Ezra D. Rosenberg, Esq., Jon Marshall Greenbaum, Esq., Director, 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; Daniel Gavin Covich, Corpus Christi, TX; Sidney Samuel Rosdeitcher, I, Esq., Paul, Weiss, Rifkind, Wharton & Garrison, L.L.P., New York, N.Y. ; Neil A. Steiner, Dechert, L.L.P., New York, NY; Michelle Yeary, Dechert, L.L.P., Princeton, NJ.

For ESTELA GARCIA ESPINOSA, LIONEL ESTRADA, EULALIO MENDEZ, JR., SERGEANT LENARD TAYLOR, Plaintiff - Appellees: Jose Garza, Texas RioGrande Legal Aid, Incorporated, San Antonio, TX; Shoshana J. Krieger, Texas RioGrande Legal Aid, Incorporated, Austin, TX; Priscilla Noriega, Texas RioGrande Legal Aid, Incorporated, Brownsville, TX.

For LA UNION DEL PUEBLO ENTERO, INCORPORATED, MAXIMINA MARTINEZ LARA, Plaintiff - Appellees: Jose Garza, Texas RioGrande Legal Aid, Incorporated, San Antonio, TX; Priscilla Noriega, Texas RioGrande Legal Aid, Incorporated, Brownsville, TX.

For TEXAS LEAGUE OF YOUNG VOTERS EDUCATION FUND, Intervenor Plaintiff - Appellee: Leah Camille Aden, Esq., NAACP, Legal Defense & Educational Fund, Incorporated, New York, NY; Coty Rae Montag, Deputy Director, NAACP Legal Defense & Educational Fund, Incorporated, Washington, DC; Jonathan Edward Paikin, Esq., Litigation Counsel, WilmerHale, Washington, DC.

For IMANI CLARK, Intervenor Plaintiff - Appellee: Leah Camille Aden, Esq., Janai S. Nelson, Esq., NAACP, Legal Defense & Educational Fund, Incorporated, New York, NY; Coty Rae Montag, Deputy Director, NAACP Legal Defense & Educational Fund, Incorporated, Washington, DC; Jonathan Edward Paikin, Esq., Litigation Counsel, WilmerHale, Washington, DC.

For 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 MCGRAW, in his Official Capacity as Director of the Texas Department of Public Safety, Defendant - Appellants: Scott A. Keller, Solicitor, J. Campbell Barker, Deputy Solicitor General, Office of the Solicitor General, for the State of Texas, Austin, TX; Angela Veronica Colmenero, Esq., Assistant Attorney General, Matthew Hamilton Frederick, Deputy Solicitor General, Jason R. LaFond, Office of the Attorney General, for the State of Texas, Austin, TX.

Before SMITH, ELROD, and GRAVES, Circuit Judges.

OPINION

Page 390

PER CURIAM:

On August 23, 2017, the district court granted permanent injunctions against the enforcement of Sections 1 through 15 and Sections 17 through 22 of Senate Bill 14 (SB 14) and against the enforcement of Senate Bill 5 (SB 5). The State filed an emergency motion to stay these injunctions. The United States filed a response in our court, consenting to a stay pending appeal. The appellees opposed the State's motion.

The district court enjoined the enforcement of SB 14 and SB 5 seven days before the Texas Secretary of State's internal deadline to finalize voter-registration certificates. These certificates must go to the printer by September 18. This deadline ensures that county registrars can issue voter-registration certificates as required by statutory deadlines before scheduled elections. To ensure that all necessary appellate review can be concluded in time for impending local elections, the State seeks a ruling of this court by September 7.

In its August 30 order, the district court granted a limited stay only to allow specific cities and school districts to proceed with, and conclude, their already ongoing elections. However, the district court ordered that no other elections can be conducted under the August 10, 2016 Order Regarding Agreed Interim Plan for Elections (Interim Order) because this August 23, 2017 order superseded its Interim Order.1

The Texas Legislature enacted SB 5 in 2016 to cure any statutory and constitutional violations related to SB 14 after Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016) (en banc).2 SB 5 allows voters without

Page 391

qualifying photo ID to cast a regular ballot after selecting, under the penalty of perjury, the reason they do not have qualifying photo ID.

We consider four factors in deciding whether to grant a 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." Nken v. Holder, 556 U.S. 418, 425--26, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009).

The State has made a strong showing that it is likely to succeed on the merits. SB 5 allows voters without qualifying photo ID to cast regular ballots by executing a declaration that they face a reasonable impediment to obtaining qualifying photo ID. This declaration is made under the penalty of perjury. As the State explains, each of the 27 voters identified--whose testimony the plaintiffs used to support their discriminatory-effect claim--can vote without impediment under SB 5.

The State has made a strong showing that this reasonable-impediment procedure remedies plaintiffs' alleged harm and thus forecloses plaintiffs' injunctive relief.

The State has also made an adequate showing as to the other factors considered in determining a stay pending appeal. When a statute is enjoined, the State necessarily suffers the irreparable harm of...

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