Veasey v. Abbott

• Decision Date: 23 August 2017
• Docket Number: CIVIL ACTION NO. 2:13–CV–193
• Citation: 265 F.Supp.3d 684
• Parties: Marc VEASEY, et al, Plaintiffs, v. Greg ABBOTT, et al, Defendants.
• Court: U.S. District Court — Southern District of Texas

265 F.Supp.3d 684

Marc VEASEY, et al, Plaintiffs,

v.Greg ABBOTT, et al, Defendants.

CIVIL ACTION NO. 2:13–CV–193

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

Signed August 23, 2017

Armand Derfner, Charleston, SC, Chad W. Dunn, Kembel Scott Brazil, Brazil Dunn, Houston, TX, Paul Smith, Danielle M. Lang, Campaign Legal Center, Washington, DC, J. Gerald Hebert, Attorney at Law, Alexandria, VA, Neil G. Baron, Law Office of Neil G. Baron, League City, TX, Luis Roberto Vera, Jr, Attorney at Law, San Antonio, TX, for Plaintiffs.

Arthur D'Andrea, Jennifer Marie Roscetti, Matthew Hamilton Frederick, Office of the Attorney General, Angela V. Colmenero, Texas Office Of The Attorney General, Jason R. LaFond, Stephen Ronald Keister, Texas Attorney General, Scott A. Keller, Office of the Attorney General Solicitor General's Office, Austin, TX, Ben Addison Donnell, Donnell Abernethy Kieschnick, Corpus Christi, TX, for Defendants.

Nelva Gonzales Ramos, United States District Judge

ORDER GRANTING SECTION 2 REMEDIES AND TERMINATING INTERIM ORDER

In its Opinion of October 9, 2014 (D.E. 628), this Court held that Texas Senate Bill 14 (SB 14)¹ had an impermissible discriminatory effect against Hispanics and African–Americans and was passed with a discriminatory purpose in violation of Section 2 of the Voting Rights Act (VRA) and the 14th and 15th Amendments to the United States Constitution. Veasey v. Perry , 71 F.Supp.3d 627 (S.D. Tex. 2014) ( Veasey I ). On appeal, the Fifth Circuit, sitting en banc, affirmed the discriminatory effect claim and remanded the discriminatory purpose claim for reconsideration.

Veasey v. Abbott , 830 F.3d 216, 241 (5th Cir. 2016) (en banc) ( Veasey II ).²

In the meantime, the Fifth Circuit instructed this Court to issue an interim remedy to eliminate—or at least reduce—the discriminatory effects of SB 14 for the 2016 general election and any other elections to take place before final disposition. As part of its mandate, the Fifth Circuit directed that this Court fashion the interim remedy so as to give effect, if possible, to the Texas legislature's stated interest in securing the integrity of its election process. In that regard, the interim remedy was to include a requirement that those in possession of qualifying SB 14 ID produce it before voting in person. Veasey II , at 271.

With the Fifth Circuit's parameters in mind, the parties conferred and presented the Court with an agreed interim order. It required those with SB 14 ID to show it and it instituted a Declaration of Reasonable Impediment (DRI) process for those who did not. Any qualified voter who did not have SB 14 ID was required, under penalty of perjury, to state that he or she did not have qualified ID and was then required to check a box to indicate the reason, including a box for "other," with a line for the "other" explanation. Upon completing the DRI, the individual was permitted to vote a regular ballot. The voter's reason could not be questioned.

The Court approved the interim order, which was a stop-gap measure instituted with a general election, including a United States presidential contest, less than three months away. The remedy was formulated in conformity with the powers and parameters of a VRA Section 2 discriminatory "results" claim. Because of the procedural posture of the case, it did not purport to provide any remedy for the still-pending Section 2/Fourteenth and Fifteenth Amendment discriminatory "purpose" claim.

On remand, this Court again found that SB 14 was passed with a discriminatory purpose. D.E. 1023. Thus Plaintiffs are now entitled to a remedy under VRA Section 2 for both the discriminatory effect and discriminatory purpose of SB 14. To determine the necessary injunctive relief, the Court offered the parties an evidentiary hearing, which they all declined. Instead, they agreed to rely on simultaneously-filed opening and responsive briefing and the existing record. See D.E. 1039–41, 1044. Before the Court are the parties' briefs. D.E. 1048, 1049, 1051, 1052, 1056, 1058, 1059, 1060.³ Also before the Court are Defendants' Motion for Reconsideration of Discriminatory Purpose Ruling in Light of SB 5's⁴ Enactment (D.E. 1050) and Private Plaintiffs' Response (D.E. 1066).⁵

For the reasons set out below, the Court DENIES Defendants' motion for reconsideration (D.E. 1050), and GRANTS declaratory and injunctive relief for the Section 2 violations, superseding and terminating the Order Regarding Agreed Interim Plan for Elections (D.E. 895).

MOTION FOR RECONSIDERATION OF DISCRIMINATORY PURPOSE

The Fifth Circuit, noting that the record included sufficient evidence to find that SB 14 was passed with a discriminatory purpose, mandated that this Court reconsider its initial purpose finding in light of the appellate critique of the probative value of certain evidence. Defendants now present their third request⁶ that this Court defer to the Texas Legislature and treat SB 5 as retroactively purging SB 14 of its discriminatory purpose.

As previously found, the Texas Legislature's subsequent action in passing SB 5—after years of litigation to defend SB 14—does not govern a finding of intent with respect to the previous enactment. Even if such a turning back of the clock were possible, the provisions of SB 5 fall far short of mitigating the discriminatory provisions of SB 14, as detailed more fully below. Along with continued provisions that contribute to the discriminatory effects of the photo ID law, SB 5 on its face embodies some of the indicia of discriminatory purpose—particularly with respect to the enhancement of the threat of prosecution for perjury regarding a crime unrelated to the stated purpose of preventing in-person voter impersonation fraud.

SB 5 does not negate SB 14's discriminatory purpose. The Court DENIES the request (D.E. 1050) to reconsider the discriminatory purpose finding.

SECTION 2 REMEDIES

Among the Private Plaintiffs' requested remedies are (1) a declaratory judgment that SB 14 was passed with a discriminatory purpose and engendered a discriminatory result in violation of the Voting Rights Act and the United States Constitution; (2) injunctive relief in the form of a prohibition against the enforcement of SB 14 and SB 5; and (3) retention of jurisdiction. The United States and the State Defendants request that this Court deny injunctive relief on the basis that SB 5 constitutes an adequate remedy for any violation of law that SB 14 presents. They further oppose retention of jurisdiction on the basis that there is nothing further for this Court to monitor or review. The issue of Section 3 remedies has been reserved for later briefing and decision.

A. Declaratory Relief

The request for declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202 is a natural result of the disposition of the claims made. See also , Fed. R. Civ. P. 57. It is further an appropriate foundation for the consideration of Section 3 relief. The Court's Opinion of October 9, 2014 (D.E. 628) and Order on Claim of Discriminatory Purpose of April 10, 2017 (D.E. 1023) effectively grant that request for declaratory relief, which will be included in the Court's final judgment. The Court GRANTS declaratory relief and holds that SB 14 violates Section 2 of the Voting Rights Act and the 14th and 15th Amendments to the United States Constitution.

B. Injunctive Relief

1. Manner of Evaluating Injunctive Relief

Private Plaintiffs seek an injunction completely barring implementation and enforcement of SB 14, Sections 1 through 15 and Sections 17 through 22,⁷ as well as SB 5 in order to eliminate the discriminatory law "root and branch." D.E. 1051, p. 4. Defendants and the United States contend that this Court's hands are tied because the remedies imposed by SB 5 are sufficient to ameliorate SB 14's ills and the Court is bound to defer to that state remedy. Thus the Court's first task is to determine to what extent, if any, the Court must defer to the state's choice of remedy and how, if at all, the Court's jurisdiction extends to interference with SB 5, which was enacted after this Court's determination of the voting rights liability issues on their merits.

Federal courts have broad equitable powers to remedy voting rights violations that implicate constitutional rights. See Swann v. Charlotte–Mecklenburg Bd. of Educ ., 402 U.S. 1, 15–16, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). The Court must fashion its remedy, taking into account "obvious" considerations such as "the severity and nature of the particular constitutional violation, the extent of the likely disruption to the ordinary processes of governance,...what is necessary, what is fair, and what is workable." North Carolina v. Covington , ––– U.S. ––––, 137 S.Ct. 1624, 1625, 198 L.Ed.2d 110 (2017) (quoting New York v. Cathedral Academy , 434 U.S. 125, 129, 98 S.Ct. 340, 54 L.Ed.2d 346 (1977) ). Additionally, the Court must act with proper restraint when intruding on state sovereignty. Covington, supra at 1626.

What constitutes proper restraint from intrusion is not clear. In Operation Push , the Fifth Circuit noted that proper deference to the state meant giving the government the first opportunity to institute its own cure for the VRA § 2 violation. Mississippi State Chapter, Operation Push, Inc. v. Mabus , 932 F.2d 400, 405–06 (5th Cir. 1991). In the prior appeal of this case ( Veasey II ), after discussing the need to fashion an interim remedy, the Fifth Circuit wrote:

[S]hould a later Legislature again address the issue of voter identification, any new law would present a new circumstance not addressed here. Such a new law may cure the deficiencies addressed in this opinion. Neither our ruling here nor any ruling of the district court on remand should prevent the Legislature from acting to ameliorate the issues raised in this opinion.

Veasey II , 830 F.3d at 271. Consistent with these holdings, this Court delayed its remedies decision until after the Texas Legislature's 2017 General...