Veasey v. Abbott

• Decision Date: 05 September 2017
• Docket Number: No. 17-40884.,17-40884.
• Citation: 870 F.3d 387
• 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-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
• Court: U.S. Court of Appeals — Fifth Circuit

870 F.3d 387

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

Chad Wilson Dunn, Esq., Houston, TX, Neil G. Baron, League City, TX, Armand G. Derfner, Esq., Charleston, SC, J. Gerald Hebert, Esq., Paul March Smith, Esq., Washington, DC, for Plaintiff-Appellee, 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.

Thomas Evans Chandler, Trial Attorney, Anna Marks Baldwin, Diana Katherine Flynn, Gregory Bryan Friel, Esq., Special Counsel, Bruce I. Gear, Washington, DC, John Albert Smith, III, Assistant U.S. Attorney, Corpus Christi, TX, for Plaintiff-Appellee, United States of America.

Ezra D. Rosenberg, Esq., Washington, DC, Lindsey Beth Cohan, Austin, TX, Jon Marshall Greenbaum, Esq., Director, Washington, DC, Myrna Perez, Deputy Director, Sidney Samuel Rosdeitcher, I, Esq., Neil A. Steiner, New York, NY, Michelle Yeary, Princeton, NJ, for Plaintiff-Appellee, Mexican American Legislative Caucus, Texas House of Representatives, Texas State Conference of NAACP Branches.

Jose Garza, San Antonio, TX, Shoshana J. Krieger, Austin, TX, Priscilla Noriega, Brownsville, TX, for Plaintiff-Appellee, Estela Garcia Espinosa, Lionel Estrada, La Union Del Pueblo Entero, Incorporated, Maximina Martinez Lara, Eulalio Mendez, Jr., Sergeant Lenard Taylor.

Leah Camille Aden, Esq., New York, NY, Coty Rae Montag, Deputy Director, Washington, DC, Jonathan Edward Paikin, Esq., Litigation Counsel, Washington, DC, for Intervenor Plaintiff-Appellee, Texas League of Young Voters Education Fund.

Janai S. Nelson, Esq., Leah Camille Aden, Esq., New York, NY, Coty Rae Montag, Deputy Director, Washington, DC, Jonathan Edward Paikin, Esq., Litigation Counsel, Washington, DC, for Intervenor Plaintiff-Appellee, Imani Clark.

Scott A. Keller, Solicitor, J. Campbell Barker, Deputy Solicitor General, Angela Veronica Colmenero, Esq., Assistant Attorney General, Matthew Hamilton Frederick, Deputy Solicitor General, Jason R. LaFond, Austin, TX, for Defendant-Appellant, 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.

Before SMITH, ELROD, and GRAVES, Circuit Judges.

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 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 denying the public interest in the enforcement of its laws. Maryland v. King , 567 U.S. 1301, 133 S.Ct. 1, 3, 183 L.Ed.2d 667 (2012) (Roberts, C.J., in chambers); see also Walters v. Nat'l Ass'n of Radiation Survivors , 468 U.S. 1323, 1324, 105 S.Ct. 11, 82 L.Ed.2d 908 (1984) (Rehnquist, J., in chambers). Because the State is the appealing party, its interest and harm merge with that of the public. Nken , 556 U.S. at 435, 129 S.Ct. 1749.

The State has already spent $2.5 million in 2016 to educate voters about the availability of the SB 5 reasonable-impediment procedures, which were used in the November 2016 general election and local elections this year. A temporary stay here, while the court can consider argument on the merits, will minimize confusion among both voters and trained election officials. The dissent's position that we should "carefully consider the importance of preserving the status quo on the eve of an election" only when that election is nationwide or statewide is without support and arguably in tension with our statement in Veasey that the impact of a late-issued injunction in "some isolated precincts" raised significant concern. Veasey v. Perry , 769 F.3d 890, 894 (5th Cir. 2014).

A temporary stay here is also consistent with our earlier decision to grant a motion to stay the implementation of SB 14 "based primarily on the extremely fast-approaching election date." Veasey , 769 F.3d at 892. As the United States explains in its brief, a stay will "retain procedures endorsed by the parties and the district court."

Pursuant to this Order, the district court's Interim Order and its reasonable-impediment procedures will remain in effect for elections in 2017. The parties agreed to these procedures, and the district court approved them. In fact, the dissenting opinion itself appears to agree that the continued use of the parties' agreed-upon remedy, the Interim Order, is the relevant status quo ante . Because again we face impending elections, a temporary stay is appropriate to "suspend[ ] judicial alteration of the status quo." Nken , 556 U.S. at 429, 129 S.Ct. 1749.

Given the district court's broad orders permanently enjoining the enforcement of relevant sections of SB 14 and SB 5 and also enjoining upcoming elections pursuant to the Interim Order, a temporary stay will allow this court to hear oral arguments and rule on the merits while preserving the status quo.

We have addressed only the issues necessary to rule on the motion to stay pending appeal, and our determinations are for that purpose and do not bind the merits panel. See generally Mattern v. Eastman Kodak Co. , 104 F.3d 702, 704–05 (5th Cir. 1997), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White , 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006).

IT IS ORDERED that Appellants' opposed motion for stay pending appeal is GRANTED, the district court's injunction orders are STAYED,...