No.

In the Supreme Court of the United States

G REG A BBOTT , IN HIS OFFICIAL CAPACITY AS
G OVERNOR OF T EXAS , ET AL ., PETITIONERS
v.
M ARC V EASEY , ET AL .

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant
Attorney General

SCOTT A. KELLER
Solicitor General
Counsel of Record
J. CAMPBELL BARKER
MATTHEW H. FREDERICK
Deputy Solicitors General
OFFICE OF THE
ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
scott.keller@
texasattorneygeneral.gov
(512) 936-1700

Q UE S T IO N S P R E S E N T E D

The district court found, and the court of appeals affirmed, that Plaintiffs have not demonstrated that any
particular voter . . . cannot get the necessary ID or vote
by absentee ballot under [Texas voter-ID law]. App.
425a. Nor is there evidence that Texas voter-ID law affected political participation by minority voters. In the
Sixth, Seventh, and Ninth Circuits, this would be fatal to
a vote-denial or vote-abridgement claim under 2 of the
Voting Rights Act. But the Fifth Circuit below (and later
the Fourth Circuit) created a split by holding that a
voter-ID law violates 2 based solely on a statistical racial disparity in preexisting ID possession, the general
correlation of race and socioeconomic status, and a ninefactor analysis developed for vote-dilution claims.
The Fifth Circuit also contravened multiple precedents of this Court by remanding plaintiffs discriminatory-purpose claim after vacating the district courts
finding. After the district court eviscerated legislative
privilege and granted unprecedented discovery, legislators produced thousands of documents, including internal confidential communications, and sat for lengthy depositions. But that discovery yielded no evidence of discriminatory purpose.
The questions presented are:
1. Whether Texas voter-ID law results in the
abridgement of voting rights on account of race.
2. Whether judgment should be rendered for petitioners on the claim that Texas voter-ID law was enacted with a racially discriminatory purpose.
(I)

PA R T IE S T O T H E PR O C E E D IN G

Petitioners are Greg Abbott, in his official capacity

as Governor of Texas; Carlos Cascos, in his official capacity as Texas Secretary of State; The State of Texas;
and Steve McCraw, in his official capacity as Director of
the Texas Department of Public Safety.
Respondents are 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;
Ken Gandy; Gordon Benjamin; Evelyn Brickner; Texas
Association of Hispanic County Judges and County
Commissioners; The United States of America; Texas
League of Young Voters Education Fund; Imani Clark;
Texas State Conference of NAACP Branches; Mexican
American Legislative Caucus, Texas House of Representatives; Lenard Taylor; Eulalio Mendez, Jr.; Lionel
Estrada; Estela Garcia Espinoza; Margarito Martinez
Lara; Maximina Martinez Lara; and La Union Del
Pueblo Entero, Inc.

(II)

T A B LE O F C O N T E N T S

Page
Opinions below......................................................................1
Jurisdiction ...........................................................................2
Constitutional and statutory provisions involved .............2
Statement ..............................................................................2
Reasons for granting the petition ....................................10
I. The Fifth Circuit Created an Exceptionally
Important Circuit Split In Erroneously
Finding that Texas Voter-ID Law Violates
VRA 2. ...................................................................12
A. The Fractured Fifth Circuit Decision
Creates a Circuit Split on the
Appropriate Test for VRA 2
Discriminatory-Effect Claims.........................12
1. The Sixth, Seventh, and Ninth
Circuits Reject VRA 2 Claims if
Plaintiffs Cannot Prove a Voting
Prerequisite Causes a Reduction in
Minority Political Participation. ...............13
2. The Fourth and Fifth Circuits
Interpret VRA 2 to Invalidate
Voting Prerequisites Without Any
Evidence of Diminished Minority
Political Participation. ...............................16
B. The Fifth Circuits Erroneous Holding
Jeopardizes Numerous Election Laws
and Raises Serious Constitutional
Questions. ..........................................................19
(III)

IV
1. The Fifth Circuit Improperly
Imposed VRA 2 Liability Without
Finding that Texas Voter-ID Law
Affected Political Participation.................19
2. The Fifth Circuits Decision
Jeopardizes
Many
Legitimate
Election Laws. ............................................26
3. The Fifth Circuits VRA 2
Interpretation
Raises
Serious
Constitutional Questions. ..........................27
II. The Fifth Circuit Erroneously Remanded
the Discriminatory-Purpose Claim. .....................30
III. No Vehicle Issues Preclude Review of the
Questions Presented. .............................................36
Conclusion ...........................................................................38
Appendix A Court of Appeals En Banc
Opinion (July 20, 2016) .......................1a
Appendix B Court of Appeals Panel
Opinion (August 5, 2015) ................ 252a
Appendix C District Court Opinion
(October 9, 2014)...............................313a
Appendix D Order Granting Petition for
Rehearing (March 9, 2016) ..............491a
Appendix E U.S. Const. amend. XIV......................494a
Appendix F U.S. Const. amend. XV.......................496a
Appendix G 52 U.S.C. 10301 ..................................497a
Appendix H Tex. Elec. Code 63.001 ......................498a
Appendix I Tex. Elec. Code 63.0101 .....................500a

V
T A BL E O F A U T H O R I T I E S

Page
Cases:
Albemarle Paper Co. v. Moody, 422 U.S. 405
(1975) ............................................................................ 21
Bd. of Trustees of the Univ. of Ala. v. Garrett,
531 U.S. 356 (2001) ..................................................... 28
Brown v. Califano, 627 F.2d 1221 (D.C. Cir.
1980) ............................................................................. 37
Bush v. Vera, 517 U.S. 952 (1996) ................................ 25
Chisom v. Roemer, 501 U.S. 380 (1991)....................... 28
City of Boerne v. Flores,
521 U.S. 507 (1997) ......................................... 11, 28, 29
City of Mobile v. Bolden, 446 U.S. 55 (1980) .............. 28
Crawford v. Bd. of Educ. of City of L.A., 458
U.S. 527 (1982) ............................................................ 37
Crawford v. Marion County Election Bd., 553
U.S. 181 (2008) ................................................... passim
Darensburg v. Metro. Transp. Commn, 636
F.3d 511 (9th Cir. 2011) .............................................. 37
Farrakhan v. Gregoire, 623 F.3d 990 (9th Cir.
2010) (en banc) (per curiam) ...................................... 11
Farrakhan v. Washington, 359 F.3d 1116 (9th
Cir. 2004) ......................................................... 11, 27, 28
Frank v. Walker, 768 F.3d 744 (7th Cir. 2014) .. passim
Gonzalez v. Arizona,
677 F.3d 383 (9th Cir. 2012) (en banc) .... 14, 15, 20, 24
Griggs v. Duke Power Co.,
401 U.S. 424 (1971) ..................................................... 21
Hamilton-Brown Shoe Co. v. Wolf Bros. & Co.,
240 U.S. 251 (1916) ..................................................... 36

VI
CasesContinued:
Hayden v. Pataki, 449 F.3d 305 (2d Cir. 2006) .... 27, 28
Johnson v. De Grandy,512 U.S. 997 (1994) ........... 23-24
Johnson v. Gov. of Fla., 405 F.3d 1214 (11th
Cir. 2005)
(en banc) ................................................................ 27, 28
League of United Latin American Citizens v.
Perry, 548 U.S. 399 (2006) ......................................... 25
League of Women Voters of N.C. v. North
Carolina, 769 F.3d 224 (4th Cir. 2014) ..................... 18
LULAC Council No. 4344 v. Clements, 999
F.2d 831 (5th Cir. 1993) (en banc) ............................ 20
McCleskey v. Kemp, 481 U.S. 279 (1987) .................... 32
Mercer v. Theriot, 377 U.S. 152 (1964) (per
curiam) ......................................................................... 36
Miller v. Johnson, 515 U.S. 900 (1995)........................ 29
N.C. State Conf. of NAACP v. McCrory, Nos.
16-1468, 16-1469, 16-1474, 16-1529, 2016 WL
4053033 4th Cir. Jul. 29, 2016) ............................ 18, 33
N.E. Ohio Coal. for the Homeless v. Husted,
Nos. 16-3603, 16-3691, 2016 WL 4761326 (6th
Cir. Sept. 13, 2016)...................................................... 16
Nw. Austin Mun. Util. Dist. No. One v.
Holder, 557 U.S. 193 (2009) ....................................... 27
Ohio Democratic Party v. Husted, No. 16-3561,
2016 WL 4437605 (6th Cir. Aug. 23, 2016) ...... passim
Pers. Admr of Mass. v. Feeney, 442 U.S. 256
(1979) ................................................................ 31, 32, 33
Pullman-Standard v. Swint, 456 U.S. 273
(1982) ............................................................................ 30

VII
CasesContinued:
Reno v. Bossier Parish Sch. Bd., 520 U.S. 471
(1997) ............................................................................ 28
Ricci v. DeStefano, 557 U.S. 557 (2009) ...................... 21
Shelby County v. Holder, 133 S. Ct. 2612 (2013) ........ 26
Simmons v. Galvin, 575 F.3d 24 (1st Cir. 2009) ........ 23
Smith v. Doe, 538 U.S. 84 (2003) .................................. 32
Tex. Dept of Housing & Cmty. Affairs v.
Inclusive Communities Project, Inc., 135 S.
Ct. 2507 (2015) ............................................................. 29
Thornburg v. Gingles, 478 U.S. 30 (1986) ......... 8, 19, 23
Veasey v. Abbott, No. 2:13-CV-00193, ECF. No.
895 (S.D. Tex. Aug. 10, 2016) ....................................... 9
Vill. of Arlington Heights v. Metro. Hous. Dev.
Corp., 429 U.S. 252 (1977) .............................. 31, 33, 34
Washington v. Davis, 426 U.S. 229 (1976) .................. 31
Constitutional Provisions, Statutes, and Regulations:
U.S. Const. amend. XIV ...................................................... 2
U.S. Const. amend. XV ........................................................ 2
28 U.S.C. 1254 ..................................................................... 2
52 U.S.C.
10301 .............................................................................. 2
10301(a) ....................................................................... 19
10301(b) ....................................................................... 19
Tex. Elec. Code
11.002(a)(6) .................................................................. 26
11.003 ........................................................................... 26
63.001 ............................................................................. 2
63.001(g) ........................................................................ 3
63.001(h) ........................................................................ 3

VIII
63.011(a)......................................................................... 3
63.0101 ....................................................................... 2, 3
65.054(b)(2)(B)-(C) ....................................................... 3
65.0541 ........................................................................... 3
82.002 ............................................................................. 3
82.003 ............................................................................. 3
85.001 ........................................................................... 26
Tex. Health & Safety Code
191.0045 ......................................................................... 3
191.0046(e)..................................................................... 3
Tex. Transp. Code 521A.001(a)-(b)................................... 3
Act of May 16, 2011, 82d Leg., R.S.,
ch. 123, 2011 Tex. Gen. Laws 619 ................................. 2
37 Tex. Admin. Code 15.182 .............................................. 3
Other Authorities:
Samuel Issacharoff, Ballot Bedlam,
64 Duke L.J. 1363 (2015) ............................................. 17
Stephen M. Shapiro, et al., Supreme Court
Practice (10th ed. 2013) ............................................... 36

In the Supreme Court of the United States

No.
G REG A BBOTT , IN HIS OFFICIAL CAPACITY AS
G OVERNOR OF T EXAS , ET AL ., PETITIONERS
v.
M ARC V EASEY , ET AL .

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General of Texas, on behalf of Governor Greg Abbott, et al., respectfully petitions for a writ
of certiorari to review the judgment of the United States
Court of Appeals for the Fifth Circuit in this case.
O PIN IO N S B E LO W

The opinion of the en banc court of appeals (App. 1a245a) is available at 2016 WL 3923868. The opinion of the
three-judge panel of the court of appeals (App. 246a306a) is reported at 796 F.3d 487. The opinion of the district court (App. 307a-484a) is reported at 71 F. Supp. 3d
627.

(1)

2
J UR I S D IC T IO N

The judgment of the court of appeals was entered on

July 20, 2016. The jurisdiction of this Court is invoked
under 28 U.S.C. 1254.
C O N S T IT U T IO N A L A N D S T A T UT O R Y
PR O V I S IO N S IN V O LV E D

The relevant provisions (U.S. Const. amend. XIV,

U.S. Const. amend. XV, 52 U.S.C. 10301, Tex. Elec.
Code 63.001, and Tex. Elec. Code 63.0101) are reproduced in the appendix to this petition.
STATEMENT

1. Crawford v. Marion County Election Board, 553

U.S. 181, 191-97 (2008) (plurality op.), held that photo
voter-ID laws are legitimate means of deterring fraud
and boosting public confidence in elections, even in
States that have no history of in-person voting fraud.1 An
overwhelming majority of Texans agreed and supported
a photo voter-ID law. See, e.g., R.77940, 87386-88, 9370506.
Accordingly, in 2011, the Texas Legislature enacted
Senate Bill 14 (SB14). Act of May 16, 2011, 82d Leg.,
R.S., ch. 123, 2011 Tex. Gen. Laws 619. SB14 requires
1
Unlike Crawford, the record in this case does contain evidence of in-person voter fraud in Texas, R.21841-63, 29184-85,
as well as registration fraud, R.27683, 29092, 100135. This is
so even though voter-impersonation fraud is difficult to detect,
R.72389-91, and some perpetrators are not charged because
they lack the requisite mens rea, R.21885-86, 33916-17. Citations to R.p refer to pages of the Fifth Circuit record on appeal.

3
voters to present certain government-issued photo ID
when voting in person. Acceptable forms of ID include a
Texas drivers license, a Texas personal identification
card, a Texas concealed-handgun license, a U.S. military
identification card, a U.S. citizenship certificate, a U.S.
passport, and a Texas election identification certificate
(EIC). Tex. Elec. Code 63.0101. SB14 requires the
Texas Department of Public Safety to issue EICs for
free. Tex. Transp. Code 521A.001(a)-(b).
The Department subsequently promulgated rules
outlining the documentation required to obtain a free
EIC, which included a birth certificate. 37 Tex. Admin.
Code 15.182. A separate statute had imposed a $2-$3 fee
to obtain a birth certificate copy. Tex. Health & Safety
Code 191.0045. But consistent with its intent to provide
free voter IDs, the Texas Legislature enacted Senate
Bill 983 in 2015, providing that government may not
charge any fee to obtain birth certificates or other records sought to get a free EIC. Id. 191.0046(e); cf. Crawford, 553 U.S. at 198 n.17 (plurality op.) (noting that Indiana had charged $3-$12 for supporting documentation
necessary to obtain qualifying ID).
SB14 did not alter preexisting law allowing voters
age 65 or older, and the disabled, to vote by mail without
photo ID. Tex. Elec. Code 82.002, 82.003. And SB14
exempts from the in-person photo-ID requirement religious objectors, people lacking sufficient ID due to natural disaster, and the disabled. Id. 63.001(h),
65.054(b)(2)(B)-(C). In-person voters who do not present
required photo ID can cast a provisional ballot that will
count if they present acceptable ID within six days of the
election. Id. 63.001(g), 63.011(a), 65.0541.

4
Texas began enforcing SB14 on June 25, 2013. App.
8a. It was in effect for three statewide elections, six special elections, and many local elections before trial in October 2014. App. 184a-85a (Jones, J., dissenting).
2. Individual and organizational plaintiffs brought
this lawsuit alleging that SB14 (1) is a poll tax; (2) purposefully abridges the right to vote on account of race;
(3) results in abridgement of the right to vote on account
of race, in violation of 2 of the Voting Rights Act; and
(4) unconstitutionally burdens the right to vote. R.91521, 1403-07. The Department of Justice filed a separate
lawsuit, later consolidated with the private plaintiffs action, likewise alleging that SB14 has the purpose and result of abridging the right to vote on account of race.
R.114566-67.
Over petitioners objections, the district court ordered the production of thousands of legislatively privileged documents and numerous depositions of legislators. E.g., R.50, 61-62, 6502-09, 62520:15-21:1, 100814:816:25, 101007:8-69:5; see App. 140a n.15 (Jones, J., dissenting) (quoting a request for production of all documents related to communications between a Senator,
other legislators, legislative staff, government officials,
or the public concerning voter-ID legislation beginning
on January 1, 2005); id. at 140a-41a (noting that plaintiffs
deposed more than two dozen witnesses, including
eleven legislators and staff members, and that the record
contained twenty-nine additional depositions taken in
preclearance litigation, including sixteen legislator depositions).
Plaintiffs insisted that direct evidence from legislators was essential to proving the discriminatory-purpose

5
claim. E.g., R.7226 (vital discovery); R.97657:19-22 (at
the heart of the United States claim); R.97938:8-10
([T]hat evidence is going to be very, very important in
this case dealing with the intent behind SB14 itself.).
But that unprecedented discovery only confirmed the
Legislatures stated purpose: SB14 was enacted to prevent voting fraud and to preserve voter confidence in the
integrity of elections.2 As the district court recognized,
this massive amount of intrusive discovery adduced no
evidence that SB14 was enacted with a racially discriminatory purpose. App. 458a (There are no smoking guns
. . . with respect to the incentive behind the bill.).
DOJ took extraordinary steps to try to find persons
who were harmed by SB14: lawyers crisscrossed Texas,
traveling to homeless shelters looking for anyone disenfranchised by the law. R.99075-77. Plaintiff organizations
made similar efforts. See R.24741-44, 24702-05, 24727-31,
64201, 99199. But at trial, plaintiffs experts could not
identify any person who would be unable to vote because
of SB14. R.98854:12-17, 99022:9-18, 99568:14-22,
99909:21-10:10, 99917:17-18:14, 100111:15-21, 100484:1985:5. The district court acknowledged that Plaintiffs
ha[d] not demonstrated that any particular voter . . . cannot get the necessary ID or vote by absentee ballot under
SB14. App. 425a.
Even the named plaintiffs could not show that SB14
substantially burdened their ability to vote. Nine of the
2

E.g., R.30194-200, 61013:69:3-8, 61026:122:14-23, 61359:

85:19-22, 62109:56:6-9, 64255:37:14-18, 64280:138:13-22,
65521:49:13-15,
78410,
100777:13-24,
100801:19-02:6,
101159:25-60:8, 101178:5-6.

6
fourteen individual plaintiffs could vote by mail without
photo ID, App. 404a; and of these nine, at least two actually had voted after SB14 took effect, R.99833:12-19,
99034:16-35:5, and at least two others had SB14-compliant ID, App. 397a, R.99854:18-55:3. Among the five remaining individual plaintiffs, three had an SB14-compliant ID, App. 397a; one chose to get a California drivers
license instead of a Texas license because she planned to
return to California after college, R.100543:11-44:23; and
the final plaintiff testified that he could obtain an SB14compliant personal identification card. R.99375:6-9.
Plaintiffs proffered a list of approximately 608,000
registered votersonly about 4.5% of all registered
Texas voterswho lacked a qualifying photo ID as of
2014. App. 58a. Plaintiffs evidence then predicted the
race of these voters. App. 59a. This prediction showed
that almost half of these individuals were white (roughly
296,000, or 48.7%). R.43320. And 96.4% of registered
non-Hispanic white voters, 92.5% of registered AfricanAmerican voters, and 94.2% of registered Hispanic voters had an SB14-compliant ID. R.43320. The record does
not show how many registered voters lacked the necessary documents or otherwise faced an obstacle to obtaining a qualifying ID. The district court nevertheless concluded that SB14 had a disparate impact because a
disproportionate number of African-Americans and Hispanics populate that group of potentially disenfranchised
voters. App. 367a.
After a nine-day bench trial, the district court entered a judgment adopting every one of plaintiffs legal
theories and permanently enjoining the State from en-

7
forcing SB14s voter-ID provisions. App. 469a. Petitioners appealed, and the Fifth Circuit granted their motion
to stay the injunction pending appeal. 769 F.3d 890 (5th
Cir. 2014). This Court then denied plaintiffs motions to
vacate that stay. 135 S. Ct. 9 (2014).
3. a. A three-judge panel of the Fifth Circuit overturned several aspects of the district courts judgment.
It reversed and rendered for petitioners on the poll-tax
claim. App. 294a-300a. It also vacated the district courts
determinations that SB14 was enacted with a discriminatory purpose, and that SB14 substantially burdened voting rights. App. 259a-71a, 291a-94a. But the panel endorsed the district courts conclusion that SB14 resulted
in a racially discriminatory effect on the right to vote under VRA 2. App. 271a-91a.
Petitioners sought, and were granted, en banc rehearing. App. 487a. Plaintiffs filed a second motion to vacate the stay of the district courts injunction, which this
Court denied. 136 S. Ct. 1823 (2016).
b. The fractured en banc court of appeals produced
eight separate opinions, with the court largely readopting the panels holdings.
The court of appeals rendered judgment for petitioners on the poll-tax claim, App. 92a-97a, and dismissed the
substantial-burden claim, App. 90a-91a.
The court of appeals reversed the district courts
judgment that SB14 was passed with a racially discriminatory purpose, holding that the district court relied on
a series of infirm, unreliable, and speculati[ve] categories of evidence. App. 15a-25a. But despite recognizing that the record does not contain direct evidence
that SB14 was passed with a racially invidious purpose,

8
App. 26a, the court remanded for the district court to reconsider the claim in light of circumstantial evidence that
could support [such] a finding, App. 28a.
Six judges dissented from the courts decision to remand, rather than render judgment for petitioners, on
the discriminatory-purpose claim. See App. 136a (Jones,
J., dissenting) (Inferences cannot substitute for proof
where the available evidence demonstrates no invidious
intent.); App. 221a (Clement, J., dissenting) (As the
[original] panel correctly noted, it is rather unlikely that
a discriminatory motive would permeate a legislative
body and not yield any private memos or emails. (quoting 796 F.3d at 503 n.16)).
The court of appeals then affirmed the district
courts holding that SB14 results in a racially discriminatory effect on the right to vote in violation of VRA 2.
App. 43a-90a. The court acknowledged that plaintiffs had
failed to show that the photo-ID requirement caused an
actual racial voting disparity or lower turnout among
minority voters. App. 79a-80a. But the court nevertheless found a discriminatory effect under a test that drew
from Thornburg v. Gingles, 478 U.S. 30, 44-45 (1986), a
redistricting case that considered nine factors set forth
in a Senate report designed to aid courts in analyzing
vote-dilution claims. According to the majority, election
laws violate VRA 2even if they have no effect on political participationwhere some racial statistical disparity related to voting can be shown and race correlates
with socioeconomic status:
(1) SB14 specifically burdens Texans living in poverty, who are less likely to possess qualified photo ID,
are less able to get it, and may not otherwise need it;

9
(2) a disproportionate number of Texans living in poverty are African-Americans and Hispanics; and (3)
African-Americans and Hispanics are more likely
than Anglos to be living in poverty because they continue to bear the socioeconomic effects caused by decades of racial discrimination.
App. 88a.
Six judges also dissented from this discriminatoryeffect holding, reasoning that plaintiffs had not shown
any diminished minority political participation. See App.
192a (Jones, J., dissenting) ([A] racial disparity in ID
possession . . . does not [without more] establish that SB
14 resulted in or caused a diminution of the right to
vote[.] (internal quotation marks omitted)); App. 226a
n.5 (Elrod, J., dissenting) (Out of the entire state of
Texas, plaintiffs have not produced anyone who cannot
vote today because of SB 14s requirements. . . . Without
a denial or abridgement, no 2 claim can stand.).
The Fifth Circuit then directed the district court to
implement an interim remedy for the 2016 election season addressing the VRA 2 discriminatory-effect claim
(which the court has entered, Veasey v. Abbott, No. 2:13CV-00193, ECF. No. 895 (S.D. Tex. Aug. 10, 2016)), and
then to reexamine the discriminatory-purpose claim.
App. 105a-07a.

10
R E A S O N S FO R G R A N T IN G T H E PE T I T IO N

This Courts review is necessary because the Fifth

Circuit enjoined a law for denying or abridging the
right to vote where plaintiffs presented no evidence that
the law resulted in diminished minority political participation or prevented even a single person from voting.
That holding turns VRA 2 on its head and creates a split
with the Sixth, Seventh, and Ninth Circuits over the
proper test for determining whether a voting prerequisite violates VRA 2.
Under the Fifth Circuits decision below, and a subsequent Fourth Circuit opinion, voting prerequisites can
be invalid under VRA 2 even if there is no evidence that
they affect voter participation. The Fifth Circuit held
that a discriminatory effect can be shown by identifying
a statistical racial disparityother than voter turnout or
registrationand then recognizing the uncontested fact,
which could be proved in any case, that some degree of
statistical correlation exists between racial and socioeconomic classifications.
In contrast, the Sixth, Seventh, and Ninth Circuits
have correctly required an actual effect on voter participation to establish a discriminatory effect under VRA 2.
These Circuits have thus rejected the Fourth and Fifth
Circuits sweeping test for VRA 2 liability, which would
jeopardize numerous legitimate voting provisions such
as registration laws, age restrictions, and Tuesday elections.
Furthermore, the Fifth Circuits test would render
2s discriminatory-effect prong unconstitutional as neither congruent nor proportional to the underlying constitutional prohibition on the purposeful abridgement of

11
voting on account of race. The court of appeals effectively
sidestepped this constitutional issue, relying on outdated
precedent decided before this Courts decision in City of
Boerne v. Flores, 521 U.S. 507, 520 (1997).
These drastic consequences from such an expansive
test for VRA 2 liability have been recognized not just by
the six dissenting judges below, App. 198a-204a, 224a28a, but also by various other judges in the Second, Seventh, Ninth, and Eleventh Circuits, infra p. 27. For example, Judge Kozinski and six other Ninth Circuit
judges warned, Evidence of socioeconomic disparities
could be the source of countless lawsuits and virtually
every decision by a state as to voting practices will be
vulnerable. Farrakhan v. Washington, 359 F.3d 1116,
1126 (9th Cir. 2004) (Kozinski, J., dissenting from denial
of rehg en banc). Unlike the Fifth Circuit below, the en
banc Ninth Circuit ultimately heeded that warning and
rejected this theory of VRA 2 liability. Farrakhan v.
Gregoire, 623 F.3d 990, 993 (9th Cir. 2010) (en banc) (per
curiam).
The Fifth Circuit also contravened multiple precedents of this Court by remanding the discriminatorypurpose claim after recognizing that the district courts
finding was infirm. Plaintiffs cannot possibly demonstrate legislative intent to harm minority voting rights,
as the record includes a massive amount of privileged,
direct legislative evidence confirming that SB14 was enacted to prevent voter fraud and safeguard voter confidence. Not a shred of evidence suggests that the Texas
Legislature had a racially invidious purpose in enacting
this voter-ID law.

12
I.

The Fifth Circuit Created an Exceptionally Important Circuit Split In Erroneously Finding that
Texas Voter-ID Law Violates VRA 2.
A. The Fractured Fifth Circuit Decision Creates
a Circuit Split on the Appropriate Test for
VRA 2 Discriminatory-Effect Claims.

The Sixth, Seventh, and Ninth Circuits correctly require VRA 2 plaintiffs to show that a challenged voting
prerequisite causes a measurable effect on minority votingthat is, an actual effect on voter turnout or registration. The Fourth and Fifth Circuits, by contrast, hold
that a voting prerequisite can violate VRA 2 even if
there is no evidence whatsoever that it negatively affects
minority political participation or prevents a single person from voting.
This Court has never decided a vote-denial or
vote-abridgement case under VRA 2s results prong;
its cases have all involved vote-dilution claims.3 As the
Fifth Circuit correctly observed, there is little authority
on the proper test to determine whether the right to vote
has been denied or abridged on account of race under
2. App. 45a (emphasis added). This Courts guidance is
therefore needed to resolve this exceptionally important
circuit split.

3
A vote-dilution claim concerns a minority groups unequal
opportunity to elect preferred representatives, whereas a
vote-denial or vote-abridgement claim concerns the ability
to cast a ballot in the first instance. Ohio Democratic Party v.
Husted, No. 16-3561, 2016 WL 4437605, at *12 & n.9 (6th Cir.
Aug. 23, 2016).

13
1.

The Sixth, Seventh, and Ninth Circuits Reject VRA 2 Claims if Plaintiffs Cannot
Prove a Voting Prerequisite Causes a Reduction in Minority Political Participation.

a. The Fifth Circuits decision below squarely conflicts with Frank v. Walker, 768 F.3d 744 (7th Cir. 2014).
In Frank, the Seventh Circuit rejected a VRA 2 challenge to Wisconsins photo-voter-ID law, even though
there was a larger statistical racial disparity in preexisting ID possession than in the instant case. Id. at 751-55.
The Frank district court had found that, in Wisconsin, 7.3% of white registered voters, 13.2% of AfricanAmerican registered voters, and 14.9% of Hispanic registered voters lacked qualifying ID. Id. at 752. On this
basis, the district court held that Wisconsins voter-ID
law resulted in an abridgement of the right to vote because white registered voters are more likely to possess
qualifying photo IDs, or the documents necessary to get
them. Id.
The Seventh Circuit reversed, explaining that
[a]lthough these findings document a disparate outcome, they do not show a denial of anything by Wisconsin, as 2(a) requires. Id. at 753. The court recognized
that the mere lack of ID at a particular moment in time
does not prove that a voter cannot obtain ID, let alone
that his right to vote has been abridged. Some voters already have a birth certificate, for example, and if they
choose not to get a photo ID, it is not possible to describe the need for a birth certificate as a legal obstacle
that disfranchises them. Id. at 749.

14
The Seventh Circuit held that, because rates of ID
possession alone prove so little, evidence of an effect on
voting behavior is essential:
If as plaintiffs contend a photo ID requirement especially reduces turnout by minority groups, students,
and elderly voters, it should be possible to demonstrate that effect.
Id. at 747. But the Frank district court did not make
findings about what happened to voter turnout. Id.
Frank also expressly rejected the argument that
VRA 2 liability could be premised on socioeconomic disparities. The district court had made extensive findings
demonstrating that the poor are less likely to have photo
IDs than persons of average income. Id. It also concluded that the reason Blacks and Latinos are disproportionately likely to lack an ID is because they are disproportionately likely to live in poverty. Id. at 753. And
it found that this socioeconomic disparity is traceable to
the effects of discrimination in areas such as education,
employment, and housing. Id. But the Seventh Circuit
rejected this as a basis for VRA 2 liability because there
was no finding that minorities have less opportunity
than whites to get photo IDs. Id.
b. The en banc Ninth Circuit similarly rejected a 2
challenge to Arizonas voter-ID law. Gonzalez v. Arizona, 677 F.3d 383, 405-07 (9th Cir. 2012) (en banc), affd
on other grounds sub nom. Arizona v. InterTribal Council of Ariz., Inc., 133 S. Ct. 2247 (2013).
Like the Fifth Circuit, the district court below, and
the Frank district court, the Gonzalez district court

15
found that Latinos had suffered a history of discrimination in Arizona that hindered their ability to participate
in the political process fully, that there were socioeconomic disparities between Latinos and whites in Arizona,
and that Arizona continues to have some degree of racially polarized voting. Id. at 406.
Yet the Gonzalez district court rejected the 2 claim.
It reasoned that not a single expert testified to a causal
connection between [Arizonas voter-ID law] and the observed difference in the voting rates of Latinos, and
there had been no showing that the law actually impact[ed] Latino voting. Id.
The Ninth Circuit affirmed, recognizing that causation is a crucial inquiry in determining whether a law
results in a discriminatory effect for purposes of VRA 2.
Id. at 405. Because the plaintiff adduced no evidence
that Latinos ability or inability to obtain or possess identification for voting purposes . . . resulted in Latinos having less opportunity to participate in the political process, the Ninth Circuit concluded that the plaintiff
failed to prove causation. Id. at 407. Gonzalez correctly
held that 2 requires more than just a disparity in existing ID possession. It requires an additional showing that
(1) minorities have a disproportionate barrier to obtain
or possess identification, and (2) this barrier result[s]
in [minorities] having less opportunity to vote. Id.
c. The Sixth Circuit also rejected a 2 vote-abridgement challenge to Ohios reduction of its early-voting period, reasoning that the plaintiffs failed to show that the
law affected minority registration or turnout. Ohio Democratic Party, 2016 WL 4437605, at *12-15. As the court
explained, a 2 claim requires proof that the challenged

16
standard or practice causally contributes to the alleged
discriminatory impact by affording protected group
members less opportunity to participate in the political
process. Id. at *13.
Applying that standard, the Sixth Circuit held that
plaintiffs failed to establish 2 liability because statistical
evidence showed that African-American voters registered at higher percentages than whites and participat[ed] . . . at least equal[ly] to . . . white voters following
Ohios reduction of the early-voting period. Id. at *14.
Like evidence of mere disparate ID possession, evidence
indicating that minorities may use early in-person voting at higher rates than other voters and may therefore
be theoretically disadvantaged by reduction of the early
voting period was insufficient to prove a 2 claim without evidence showing that minorities registration or
turnout rates were actually diminished by the law. Id. at
*8; see also N.E. Ohio Coal. for the Homeless v. Husted,
Nos. 16-3603, 16-3691, 2016 WL 4761326, at *8-9 (6th Cir.
Sept. 13, 2016) (rejecting 2 challenge to restrictions on
absentee and provisional ballots and poll-worker assistance where plaintiffs failed to demonstrate disparate effect on minority voters).
2.

The Fourth and Fifth Circuits Interpret

VRA 2 to Invalidate Voting Prerequisites
Without Any Evidence of Diminished
Minority Political Participation.

a. In contrast to the Sixth, Seventh, and Ninth Circuits, the Fifth Circuit below held that Texas voter-ID
law violated 2 despite recognizing that plaintiffs failed
to show that the law caused any racial voting disparity.

17
See App. 79a (refusing to require proof that the challenged law directly caused a reduction in turnout). The
court focused instead on evidence of a small, preexisting
statistical disparity in voter ID possession. Id.
Plaintiffs could not have prevailed in the Sixth, Seventh, or Ninth Circuits. Supra pp.13-16. The record does
not include any evidence that the disparity in ID possession correlated with, let alone caused, a disproportionate
decline in minority registration or turnout. App. 79a-80a;
see also Samuel Issacharoff, Ballot Bedlam, 64 Duke
L.J. 1363, 1381 (2015) (To date, empirical studies have
focused on the effect of voter-ID laws, but have been unable to find any substantial decline either in overall turnout or in the turnout of racial minorities as a result of
these laws.). To the contrary, plaintiffs failed to show
that a single Texan is prevented from voting by SB14,
even though the law had been in effect for multiple elections before trial. App. 228a (Elrod, J., dissenting); cf.
Ohio Democratic Party, 2016 WL 4437605 at *8 (rejecting 2 liability where [p]laintiffs d[id] not point to any
individual who . . . will be precluded from voting).
In enjoining Texas voter-ID law without evidence of
any racial voting disparity, the Fifth Circuit reasoned
that any law that disparately impacts poor voters necessarily results in discrimination on account of race if minority voters are more likely to be poor. App. 88a. This
interpretation of 2 directly conflicts with the Seventh
Circuits holding that a voter-ID law does not violate 2
merely because certain groups have lower income and
therefore are less likely to use th[eir] opportunity to
get photo IDs. Frank, 768 F.3d at 753.

18
b. The Fourth Circuit also held that plaintiffs may
establish 2 liability without proof that a voting prerequisite has an actual effect on minority voter turnout or
registration. The two-part framework the Fifth Circuit
used was adopted from Fourth Circuit precedent. App.
46a (citing League of Women Voters of N.C. v. North
Carolina, 769 F.3d 224, 240 (4th Cir. 2014)).4
The Fourth Circuit invalidated a series of North
Carolinas voting prerequisites, including its voter-ID
requirement. N.C. State Conf. of NAACP v. McCrory,
Nos. 16-1468, 16-1469, 16-1474, 16-1529, 2016 WL
4053033, at *24 (4th Cir. Jul. 29, 2016). Although that
opinion focuses on claims of discriminatory purpose, the
Fourth Circuit pointed to findings that African-Americans disproportionally lacked the photo ID required by
[the challenged law] in discussing the laws alleged discriminatory effect on voting. Id. at *15. Rejecting the import of evidence showing that African-American voter
turnout actually increased following implementation of
the law, the court observed that the ID requirement inevitably increases the steps required to vote, and so
slows the process. Id. at *15-16. Thus, slow[ing] the
[voting] process alone is sufficient to establish 2 liability in the Fourth Circuit.

4
The Sixth Circuit nominally used the same two-part framework to analyze the 2 claim in Ohio Democratic Party, but
that court importantly emphasize[d] that the first element
of the test requires proof that the challenged standard or
practice causally contributes to the alleged discriminatory impact via reduced participat[ion] in the political process.
2016 WL 4437605, at *13.

19
B. The Fifth Circuits Erroneous Holding Jeopardizes Numerous Election Laws and Raises
Serious Constitutional Questions.
1.

The Fifth Circuit Improperly Imposed VRA

2 Liability Without Finding that Texas
Voter-ID Law Affected Political Participation.

The Fifth Circuits reasoning reflects two fundamental errors. First, a statistical disparity in rates of ID possession is not a disproportionate result prohibited by
2; plaintiffs were required to show that SB14 caused an
actual effect on minority voting participation. Second,
the Fifth Circuit replaced this crucial causation inquiry
with an amorphous analysis of the nine Senate factors.
a. Since 1982, VRA 2 has prohibited a voting qualification or prerequisite to voting that results in a denial or abridgement of the right . . . to vote on account of
race or color. 52 U.S.C. 10301(a). Under this section, a
violation exists if, as a result of the challenged voting
practice, the political processes . . . are not equally open
to participation by members of [a racial group] in that its
members have less opportunity than other members of
the electorate to participate in the political process and
to elect representatives of their choice. Id. 10301(b).
By its plain text, the statute requires a tailored causation analysis connecting the challenged voting prerequisite to the prohibited resultthat is, the inability to
equally participate in the political process and vote.
See App. 192a (Jones, J., dissenting) (citing Gingles, 478
U.S. at 48 n.15); accord Ohio Democratic Party, 2016

20
WL 4437605, at *13 ([T]o be actionable, [a voting prerequisite] must result in an adverse disparate impact on
protected class members opportunity to participate in
the political process.).
Plaintiffs must therefore demonstrate a disparity
among racial groups in actual voter turnout or
registration in order to establish an unequal ability to
participate in elections under 2. Frank, 768 F.3d at
747; Gonzalez, 677 F.3d at 406; Ohio Democratic Party,
2016 WL 4437605, at *12-15. Indeed, prior en banc Fifth
Circuit precedent correctly rejected 2 liability without
evidence of decreased participation among minorities.
LULAC Council No. 4344 v. Clements, 999 F.2d 831, 86667 (5th Cir. 1993) (en banc) (denying 2 claim where
plaintiffs presented no evidence of reduced levels of
[minority] voter registration or lower turnout among
[minority] voters); see App. 192a-93a (Jones, J.,
dissenting).
Instead of analyzing voter participation, the district
court and Fifth Circuit relied principally upon plaintiffs
No-Match Listone experts attempt to predict the
number of registered Texas voters who lacked SB14compliant ID at the time of trial and their race. App. 58a59a. That expert determined that 92.5% of registered African-American voters and 94.2% of registered Hispanic
voters had SB14-compliant ID, compared with 96.4% of
registered non-Hispanic white voters. Supra p.6.
But the degree of preexisting ID possession does not
establish an unequal opportunity for minorities to obtain photo IDs and vote. Gonzalez, 677 F.3d at 407; see
Frank, 768 F.3d at 752-53 (ID disparity as of . . . trial

21
insufficient). That is particularly so given that Texas offers free voter IDs and free underlying documents to obtain those free IDs. Supra p.3. A conclusion that SB14
has a discriminatory effect under 2 would require proof
that minority voters who lacked IDs faced substantial
obstacles to get them, and that the inability to comply
with SB14 caused minority voters not to register or vote.
The Fifth Circuit, however, did not require the factual findings necessary to bridge that inferential gap.
The court did not, for instance, assess how many voters
who lacked SB14-compliant IDs already had the documents necessary to obtain them. Cf. Frank, 768 F.3d at
749. Nor did it determine whether registered voters who
lacked both SB14-compliant IDs and the documents necessary to get them could obtain the underlying documentsor whether there was a racial disparity in such a
figure. And it made no effort to determine whether individuals on the No-Match List voted before SB14 took effect. Cf. id. at 753.
The Fifth Circuits central error was its expansive
definition of what qualifies as a prohibited result under
VRA 2. As this Court has recognized in other contexts
involving a disparate-impact standard, the actionable result or effect must be carefully circumscribed. In the employment context, for example, a challenger must show a
statistical disparity confirming that a practice operates
to exclude [minorities]. Ricci v. DeStefano, 557 U.S.
557, 578 (2009) (quoting Griggs v. Duke Power Co., 401
U.S. 424, 431 (1971) (emphasis added)). In other words,
the statistical disparity must show that the challenged
practice will actually select applicants for hire or promotion in a racial pattern significantly different from that

22
of the pool of applicants. Albemarle Paper Co. v. Moody,
422 U.S. 405, 425 (1975) (emphasis added). It is not
enough to show a bare statistical disparity that might affect employment, such as college education or specialized
training. The only disparity that matters is the actual
employment result.
Similarly, as the Sixth, Seventh, and Ninth Circuits
have noted in the voting context, the statistical disparity
that matters is voter participation, as evidenced by registration and turnout. After all, if an election law has no
effect on voter registration or turnout, then there is no
basis to conclude that the law restricts access to the political processmuch less that it does so on account of
race.
Despite exhaustive efforts, plaintiffs failed to identify a single individual who faces a substantial obstacle to
vote because of SB14. Supra pp.5-6. At most, plaintiffs
proved that a small percentage of registered Texas voters did not have SB14-compliant ID at the time of trial.
But they did not prove that SB14 will prevent or deter
any person from casting a ballot. Cf. Crawford, 553 U.S.
at 187 (plurality op.) (record contained no evidence of a
single, individual Indiana resident who will be unable to
vote as a result of SEA 483). The critical distinction between what 2 requires and what plaintiffs were able to
show was candidly summed up by plaintiffs expert: I
wasnt asked to study whos been deprived of rights to
vote. I was asked to study who has IDs. R.99022:17-18.
b. Lacking proof that SB14 diminished minority political participation, the Fifth Circuit examined a non-exhaustive list of nine factors from a 1982 Senate report to
assess the requisite causal link between (1) the alleged

23
burden on voting rights imposed by SB14 and (2) the
fact that this burden affects minorities disparately because it interacts with social and historical conditions
that have produced discrimination against minorities
currently, in the past, or both. App. 47a. This was error
for multiple reasons.
This Court has never applied the Senate factors to
vote-abridgement claims, and the authors of the 1982
Senate committee report would not have envisioned applying them beyond redistricting vote-dilution claims.
See Gingles, 478 U.S. at 44-45 (citing S. Rep. No. 97-417,
at 2 (1982)). Several circuits have observed that many of
the factorsfor example, racially polarized voting, racial
appeals in campaigns, the election of minorities to
statewide office, and elected officials responsiveness to
minority needshave no bearing on vote-abridgement
claims, where the opportunity to cast a ballot is at issue.
See Simmons v. Galvin, 575 F.3d 24, 42 n.24 (1st Cir.
2009) ([A] satisfactory test for vote denial cases under
Section 2 has yet to emerge [, and] the Supreme Courts
seminal opinion in Gingles . . . is of little use in vote denial
cases. (internal quotation marks omitted)); Frank, 768
F.3d at 754 (noting that the Fourth, Sixth, and Seventh
Circuits found Gingles unhelpful in [vote-abridgement]
cases and that the Ninth Circuit in Gonzalez did not
use most of [the Senates] nine factors).
The Senate factors cannot substitute for proof that a
challenged voting prerequisite causes a disparate effect
on minority voting. Even in the vote-dilution context, the
three initial Gingles preconditions must be satisfiedto
show that additional minority-preferred representatives
could in fact be electedbefore a court even reaches the

24
Senate factors. Johnson v. De Grandy, 512 U.S. 997,
1011-13 (1994). Accordingly, the Senate factors are an
additional hurdle to ensure that a facially neutral voting
law imposing a racially disparate impact on voting participation is not invalidated under 2 unless the law is adequately tied to social and historical conditions that have
produced discrimination. Ohio Democratic Party, 2016
WL 4437605, at *13-14 (explaining that 2 asks not just
whether social and historical conditions result in a disparate impact, but whether the challenged voting standard or practice causes the discriminatory impact as it interacts with social and historical conditions).
Having incorrectly assumed a disparate effect on minority voting participation, the Fifth Circuit proceeded
to use the Senate factors as a substitute for proof of causation. Yet that is precisely what the Sixth and Ninth
Circuits warned could not be done when assessing VRA
2 liability. See id. at *14 ([I]f the second step is divorced from the first step requirement of causal contribution by the challenged standard or practice itself, it is
incompatible with the text of Section 2 and incongruous
with Supreme Court precedent.); Gonzalez, 677 F.3d at
405 (causation is a crucial inquiry under VRA 2).
Even if the Senate factors were relevant to a voteabridgement claim, they do not show a discriminatory effect on minority voting participation here. The Fifth Circuit erred by relying on historical and contemporary examples of discrimination. App. 54a. The court had already held that reliance on decades-old examples of
State discrimination was error in the context of plaintiffs discriminatory-purpose claim. App. 19a. And the

25
court recognized that the relatively contemporary examples of discrimination cited by the district court were
also limited in their probative value. Id.
As the court of appeals observed, one example involved the actions of county officials in just one of Texas
254 counties. App. 19a-20a ([W]e do not find the reprehensible actions of county officials in one county . . . to be
probative of the intent of legislators in the Texas Legislature[.]). And the two statewide redistricting cases
cited by the district court similarly form[ed] a thin basis
for drawing conclusions regarding contemporary Statesponsored discrimination. App. 20a. One of those cases,
Bush v. Vera, 517 U.S. 952, 976 (1996), involved plans to
create additional majority-minority districts. App. 20a.
The other, League of United Latin American Citizens v.
Perry, 548 U.S. 399, 439-40 (2006), upheld a majority-African-American district but invalidated a separate district as dilutive against Hispanics, even though the Texas
Legislature had drawn another majority-Hispanic district to remedy the dilution. App. 20a-21a.
Yet, in contrast to rejecting their relevance to the
discriminatory-purpose claim, the court of appeals held
these out as examples of purported official discrimination that somehow supported the district courts finding
that SB14 has a discriminatory effect. App. 73a. But cf.
App. 169a (Jones, J., dissenting) ([T]he majoritys contemporary examples about Texass State-sponsored discrimination are neither contemporary nor probative.).
Even if there were evidence of diminished minority political participationand there is nonedecades-old instances of discrimination cannot form the basis for finding a discriminatory effect when there is no evidence of

26
contemporary State-sponsored discrimination. See, e.g.,
Shelby County v. Holder, 133 S. Ct. 2612, 2618-19, 2631
(2013).
2.

The Fifth Circuits Decision Jeopardizes

Many Legitimate Election Laws.

The Fifth Circuits test for vote-abridgement claims

removes any meaningful limit on the scope of VRA 2,
jeopardizing countless election laws. Any voting requirement imposes a marginally greater burden on poorer
voters than more affluent voters because costswhether
measured in time, effort, or moneygenerally weigh
more heavily on poorer voters. Yet most voting practices
are legitimate and uncontroversial despite their marginal burdens.
Texas, for instance, requires voters to register, Tex.
Elec. Code 11.002(a)(6); to vote in the precinct where
they reside, id. 11.003; and to vote within 17 days of an
election, id. 85.001. Each one of those practices would
impose a marginally greater burden on poorer voters
than on more affluent voters, but they do not abridge the
right to vote on account of race. Frank, 768 F.3d at 753.
The Fifth Circuits holding jeopardizes all these
measures, regardless of their actual effect on voting,
based on the general correlation between poverty and
race. App. 228a (Elrod, J., dissenting) ([The majority]
improperly would permit challenges to virtually all aspects of the voting process simply because poverty adds
to the burdens of everyday activities and wealth distribution is unequal across racial groups.).
These few examples from Texas are hardly the only
laws threatened by the Fourth and Fifth Circuits VRA

27
2 test. As one of the dissenting opinions below cataloged, existing VRA 2 lawsuits currently challenge laws
establishing limits on polling locations, time periods and
justifications for early voting, the accuracy of mail-in ballots, the accuracy of provisional ballots, time periods for
voter registration, pre-registration for under-18 voters,
the number of vote-counting machines a county must
maintain, and several other voting prerequisites. See
App. 188a & n.54 (Jones, J., dissenting).
The dissenting judges below are not the first to recognize the sweeping consequences of imposing VRA 2
liability based on socioeconomic disparities without proof
of an actual effect on voting behavior. Judges in the Second, Seventh, Ninth, and Eleventh Circuits have made
the same warning. Frank, 768 F.3d at 754 (conflating
poverty with race under 2 threatens to sweep[] away
almost all registration and voting rules); accord Johnson v. Gov. of Fla., 405 F.3d 1214, 1229-32 (11th Cir.
2005) (en banc); Hayden v. Pataki, 449 F.3d 305, 330-37
(2d Cir. 2006) (Walker, C.J., concurring); Farrakhan,
359 F.3d at 1126 (Kozinski, J., dissenting from denial of
rehg en banc).
3.

The Fifth Circuits VRA 2 Interpretation

Raises Serious Constitutional Questions.

The Fifth Circuits expansive interpretation of 2

also raises serious constitutional questions, so it should
be rejected under the constitutional-avoidance canon.
E.g., Nw. Austin Mun. Util. Dist. No. One v. Holder, 557
U.S. 193, 205 (2009).

28
a. As expanded by the Fifth Circuit, VRA 2 is neither congruent nor proportional to the Fifteenth Amendments prohibition on purposeful racial discrimination in
voting. The VRA enforces the Fifteenth Amendment,
Chisom v. Roemer, 501 U.S. 380, 383 (1991), which prohibits only laws that abridge the right to vote and are
motivated by a racially discriminatory purpose. See Reno
v. Bossier Parish Sch. Bd., 520 U.S. 471, 481 (1997); City
of Mobile v. Bolden, 446 U.S. 55, 62 (1980) (plurality op.).
The Fifteenth Amendment does not prohibit laws that
have a mere disparate effect on voting participation.
Reno, 520 U.S. at 481. VRA 2s results prong, which
was added in 1982, goes a significant step beyond the Fifteenth Amendment to prohibit laws with the effect, but
not the purpose, of diminishing minority political participation. See Chisom, 501 U.S. at 403.
If interpreted to extend an additional layer of
prophylaxisbarring laws that do not have any effect on
voting behaviorVRA 2 would exceed Congresss authority to enforce the Fifteenth Amendment, because it
lacks congruence and proportionality to the Fifteenth
Amendments prohibition of intentional voting discrimination. Bd. of Trustees of the Univ. of Ala. v. Garrett, 531
U.S. 356, 365 (2001) (quoting City of Boerne, 521 U.S. at
520). Besides the dissenting judges below, App. 198a204a, 224a-28a, various other judges have echoed these
congruence-and-proportionality concerns, see, e.g.,
Johnson, 405 F.3d at 1229-32; Hayden, 449 F.3d at 33037 (Walker, C.J., concurring); Farrakhan, 359 F.3d at
1121-25 (Kozinski, J., dissenting from denial of rehg en
banc).

29
Rather than grapple with these significant constitutional issues, the court of appeals cursorily dismissed
them by adhering to outdated precedent decided before
this Court fashioned the congruence and proportionality test for congressional power in City of Boerne, 521
U.S. at 520. See App. 69a-70a n.47. This weighty constitutional issue alone warrants this Courts review.
b. In addition, if States face liability for enacting neutral election laws without any disparate effect on voting
behavior, then States may be forced to subordinate[]
traditional race-neutral . . . principles to racial considerations in violation of the Equal Protection Clause.
Miller v. Johnson, 515 U.S. 900, 916 (1995); see Tex.
Dept of Housing & Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2524 (2015) (explaining that courts must avoid interpreting statutes to inject racial considerations into government decisionmaking). For example, if a State passes a voter-registration,
early-voting, or voter-ID law, it would first have to consider the racial statistics of any related disparity under
the Fifth Circuits decision. Section 2 would thus force
considerations of race on state lawmakers who will endeavor to avoid litigation by eliminating any perceived
racial disparity in voting regulations. App. 203a (Jones,
J., dissenting).

30

II. The Fifth Circuit Erroneously Remanded the

Discriminatory-Purpose Claim.
This case presents an exceptional scenario. Plaintiffs
demanded and obtained a treasure trove of privileged
legislative materialthousands of internal legislative
documents and hours of legislator depositions. That material contained no evidence of racial discrimination; it
only confirmed that the Legislature passed SB14 for legitimate reasons recognized by Crawford. On that basis
alone, it would be clear error for any court to find a discriminatory purpose here. Yet, the district court found
that the Texas Legislature had such an illicit purpose
when enacting its voter-ID law.
The court of appeals correctly held this finding was
infirm in myriad ways, App. 24a, but it nevertheless remanded for further consideration. Given plaintiffs extraordinary access to direct evidence regarding the legislative process behind SB14, the Fifth Circuit erred in
remanding this claim. Remand is inappropriate if, on a
correct view of the law, the record permits only one resolution of the factual issue. Pullman-Standard v.
Swint, 456 U.S. 273, 292 (1982). Here, the record only
permits a finding that the Texas Legislature did not act
with a discriminatory purpose in passing SB14.
This exceptional case warrants this Courts review
before further proceedings continue in district court on
the grave charge that the Texas Legislature acted with
a racially invidious purpose.

31
A. Through a trio of well-established precedents,
this Court has imposed significantly heightened standards for finding that any actorbut particularly a State
legislaturehas acted with a racially discriminatory
purpose. Pers. Admr of Mass. v. Feeney, 442 U.S. 256
(1979); Vill. of Arlington Heights v. Metro. Hous. Dev.
Corp., 429 U.S. 252 (1977); Washington v. Davis, 426
U.S. 229 (1976).
Under these precedents, even proof that a State legislature passed a law knowing it would cause a discriminatory effect is insufficient to establish a discriminatory
purpose. As this Court made clear decades ago:
Discriminatory purpose... implies more than intent
as volition or intent as awareness of consequences. It
implies that the decisionmaker... selected or reaffirmed a particular course of action at least in part
because of, not merely in spite of, its adverse effects
upon an identifiable group.
Feeney, 442 U.S. at 279 (citation, internal quotation
marks, and footnote omitted) (emphasis added).
Accordingly, Davis upheld an employment test that
white applicants passed in proportionately greater numbers than African-Americans, because plaintiffs failed to
adduce any proof that racial discrimination entered into
the formulation of the test. 426 U.S. at 245-47. Similarly,
Arlington Heights upheld a zoning board decision denying permission to build low- and moderate-income housing projects because there was no evidence that the decision was racially motivated. 429 U.S. at 269-71. And in
Feeney, the Court upheld an employment preference for
veterans, despite its substantial disparate impact on the

32
basis of sex, because nothing in the record demonstrated
that the preference was originally devised or reenacted
to harm womens job prospects. 442 U.S. at 279.
At bottom, non-invidious classifications like those at
issue in Davis, Arlington Heights, and Feeney are upheld unless plaintiffs can prove that the justification for
the law is obvious pretext for racial discrimination
that is, the law can plausibly be explained only as a
[race]-based classification. Id. at 272, 275. The Court
therefore will not infer a discriminatory purpose where
there were legitimate reasons to enact a law. McCleskey v. Kemp, 481 U.S. 279, 298-99 (1987); see also Smith
v. Doe, 538 U.S. 84, 92 (2003) (holding that only the
clearest proof will suffice to override the legislatures
stated intent).
B. As the Fifth Circuit recognized, the Texas Legislatures stated purpose in passing a voter-ID law was
protect[ing] the sanctity of voting, avoiding voter fraud,
and promoting public confidence in the voting system.
App. 17a. Plaintiffs were unable to meet their substantial
burden of showing that this stated justification was obvious pretext for race discrimination. Feeney, 442 U.S.
at 272. To the contrary, the record only confirmed the
Legislatures stated purposes. Supra p.5 n.2.
The courts below acknowledged that plaintiffs failed
to adduce any direct evidence of purposeful discrimination pertaining to SB14even though plaintiffs obtained
unprecedented discovery of privileged legislative materials. App. 26a ([T]he record does not contain direct evidence that the Texas Legislature passed SB14 with a racially invidious purpose[.]). There was not even evi-

33
dence that the Texas Legislature requested, let alone examined, data showing the race of voters without SB14compliant IDalthough even that evidence would have
been insufficient under Feeney. Cf. N.C. State Conf. of
NAACP, 2016 WL 4053033 at *3 (evidence showed that
the North Carolina Legislature requested and received
racial data as to possession of photo ID). Indeed, nearly
half of the voters on plaintiffs No-Match List are white,
precluding a discriminatory-purpose finding under
Feeney, 442 U.S. at 275 (Too many men are affected by
[the law] to permit the inference that its true purpose
was sex discrimination).
Unsurprisingly then, the Fifth Circuit reversed the
district courts judgment that SB14 was passed with a
racially discriminatory purpose, holding that the lower
court improperly credited infirm, unreliable, and
speculati[ve] circumstantial evidence in finding that
the Legislature acted with a racially invidious purpose.
App. 15a-25a; see App. 207a (Smith, J., dissenting) (The
plurality opinion . . . roundly and repeatedly scolds [the
district judge] for mishandling [the] evidence and making erroneous findings therefrom.).
But the court of appeals should not have remanded
this claim for further proceedings. Although discriminatory intent may be proved by circumstantial evidence in
certain cases, see Arlington Heights, 429 U.S. at 266, this
was no ordinary case. Plaintiffs were provided with unprecedented access to legislative materials and testimony after insisting that such evidence was essential to
their discriminatory-purpose claim. Supra pp.4-5; cf.
N.C. State Conf. of NAACP, 2016 WL 4053033 at *14
([A]s the Supreme Court has recognized, testimony as

34
to the purpose of challenged legislation frequently will
be barred by legislative privilege. That is the case here.
(internal quotation marks and alterations omitted)).
That discovery included privileged and confidential
papers, communications, and testimony from the Lieutenant Governor and dozens of legislators who voted for
SB14. Supra p.4. Ultimately, legislators and their staff
produced thousands of documents and sat for depositions where plaintiffs asked about conversations among
legislators, mental impressions, and motives for passing
SB14. See App. 140a-41a & nn. 15-16 (Jones, J., dissenting).
Plaintiffs obtained this unprecedented discovery despite this Courts admonition in Arlington Heights that
[p]lacing a decisionmaker on the stand should be
avoided because judicial inquiries into legislative or executive motivation represent a substantial intrusion into
the workings of other branches of government. 429 U.S.
at 268 n.18. As the six dissenting judges observed:
The Court in Arlington Heights noted the need to
consider circumstantial evidence in cases where testimony by the actual decisionmakers was barred by
privilege. . . . But . . . where decisionmakers are called
to testify about their actions and the justifications advanced in their testimony do not demonstrate a pretext for intentionally discriminatory actions, the logic
of Arlington Heights suggests that the direct evidence is actually stronger than the circumstantial evidence proffered by the plaintiffs.
App. 221a (Clement, J., dissenting) (internal quotations
marks and alterations omitted).

35
Yet after obtaining that extensive discovery here,
plaintiffs failed to adduce a single document or statement
suggesting that any legislatormuch less the Legislature as a wholeintended to suppress minority voting
through SB14. App. 26a; see App. 126a-27a (Jones, J.,
dissenting) ([T]he multi-thousand page record yields
not a trace, much less a legitimate inference, of racial
bias by the Texas Legislature.); App. 221a (Clement, J.,
dissenting) ([Plaintiffs] intrusive searchtypically reserved only for extraordinary casesyielded no such evidence [of discriminatory intent.] (internal quotation
marks omitted)). Instead, the record confirmed that the
statute was designed to prevent voting fraud and safeguard voter confidenceeven legislators who opposed
SB14 conceded that legislators supporting the law did
not intend to harm minority voters. See R.27607:201:110, 99656:2-6, 99656:11-99657:2.
The remaining shreds of circumstantial evidence not
already discredited by the court of appeals cannot possibly satisfy this Courts heightened standard for finding
purposeful discrimination. See App. 172a-73a (Jones, J.,
dissenting) ([T]he weak, or unsupported inferences
claimed by the majority are contradicted by the overwhelming evidence from the complete record that negated any racially discriminatory purpose behind
SB14.). In light of the unprecedented amount of direct,
legislatively privileged evidence confirming the Legislatures legitimate intentions, the remaining circumstantial evidence would have to be overwhelming to support
a theorynot borne out by any direct evidencethat
there was a vast but silent conspiracy to pass a racially
discriminatory law. App. 142a (Jones, J., dissenting).

36
Nothing close to such overwhelming evidence exists, and
this Courts review is necessary to reject the grave
charge that the Texas Legislature acted with a racially
invidious purpose.
III. No Vehicle Issues Preclude Review of the Questions Presented.
There are no barriers preventing this Court from reviewing the questions presented. The district court entered a final judgment, and the en banc Fifth Circuit sustained the finding of a discriminatory effect under VRA
2. The Fifth Circuit did remand for further consideration of the discriminatory-purpose claim and the remedy
for the discriminatory-effect claim, but neither issue will
bear on questions regarding the appropriate standards
for liability at issue in this petition.
It is true that petitioners could seek certiorari on either question presented after further proceedings in the
district court. E.g., Mercer v. Theriot, 377 U.S. 152, 15354 (1964) (per curiam) (quoting Hamilton-Brown Shoe
Co. v. Wolf Bros. & Co., 240 U.S. 251, 25758 (1916)); see
Stephen M. Shapiro, et al., Supreme Court Practice 84
(10th ed. 2013).
But there are significant advantages for this Court
to review these certiorari-worthy questions now. A significant circuit split on the scope of VRA 2 liability persists. The Courts guidance is thus needed now, especially when resolution of the first question presented affects the validity of numerous election laws.
Moreover, if the Court were to overturn the Fifth
Circuits discriminatory-effect finding under VRA 2,

37
that would avoid unnecessary proceedings on the discriminatory-purpose claim. The district court acknowledged that there was no direct evidence of discriminatory purpose. App. 458a. And without a showing of discriminatory effect, circumstantial evidence cannot establish discriminatory purpose. See, e.g., Crawford v. Bd. of
Educ. of City of L.A., 458 U.S. 527, 544 n.31 (1982) (Absent discriminatory effect, judicial inquiry into legislative motivation is unnecessary, as well as undesirable.
(quoting Brown v. Califano, 627 F.2d 1221, 1234 (D.C.
Cir. 1980)); Darensburg v. Metro. Transp. Commn, 636
F.3d 511, 523 (9th Cir. 2011) (failure to establish . . . discriminatory impact prevents any inference of intentional
discrimination).
*

The Fifth Circuit held that Texas voter-ID law violates VRA 2 despite the fact that plaintiffs presented no
evidence of diminished minority political participation,
or even a single person who would be unable to vote as a
result of the law. The courts decision creates a split with
three circuits and threatens countless longstanding election laws. And it subjects the Texas Legislature to the
ongoing charge of intentional racial discriminationon a
record showing no discriminatory effect on voting and
only legitimate purposes recognized by this Court in
Crawford. Review of these exceptionally important issues is warranted now.

38
C O N C L U S IO N

The petition for a writ of certiorari should be

granted.
Respectfully submitted.
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant
Attorney General

SCOTT A. KELLER
Solicitor General
Counsel of Record
J. CAMPBELL BARKER
MATTHEW H. FREDERICK
Deputy Solicitors General
OFFICE OF THE
ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
scott.keller@
texasattorneygeneral.gov
(512) 936-1700

SEPTEMBER 2016