ORDER ON CLAIM OF DISCRIMINATORY PURPOSE
After en banc review of the record in this case, the Fifth Circuit majority held that there was sufficient evidence to sustain a conclusion that the Texas voter photo identification bill, SB 14,1 was passed with a discriminatory purpose, despite its proponents’ assertions that it was necessary to combat voter fraud. Veasey v. Abbott, 830 F.3d 216, 241 (5th Cir. 2016) (Veasey II). At the same time, the Fifth Circuit held that certain evidence outlined in this Court’s prior opinion2 was not probative of discriminatory intent and posited that this Court may have been unduly swayed by that evidence in making its determination of this issue.
In connection with the discriminatory purpose analysis, the Fifth Circuit wrote, approving of this evidence: The record shows that drafters and proponents of SB 14 were aware of the likely disproportionate effect of the law on minorities, and that they nonetheless passed the bill without adopting a number of proposed ameliorative measures that might have lessened this impact. For instance, the Legislature was advised of the likely discriminatory impact by the Deputy General Counsel to the Lieutenant Governor and by many legislators, and such impact was acknowledged to be “common sense” by one of the chief proponents of the legislation.
Veasey II, at 236. This is some evidence of a pattern, unexplainable on grounds other than race, which emerges from the effect of the state action even when the governing legislation appears neutral on its face. Again, without setting forth the associated findings at length, this Court adopts its prior findings and conclusions with respect to the pattern of conduct unexplainable on grounds other than race factor.
The Fifth Circuit also credited other historical events from the 1970s forward. [A]s late as 1975, Texas attempted to suppress minority voting through purging the voter rolls, after its former poll tax and re-registration requirements were ruled unconstitutional. It is notable as well that “[i]n every redistricting cycle since 1970, Texas has been found to have violated the [Voting Rights Act] with racially gerrymandered districts.” Furthermore, record evidence establishes that the Department of Justice objected to at least one of Texas’s statewide redistricting plans for each period between 1980 and the present, while Texas was covered by Section 5 of the Voting Rights Act. Texas “is the only state with this consistent record of objections to such statewide plans.” Finally, the same Legislature that passed SB 14 also passed two laws found to be passed with discriminatory purpose.
Proponents touted SB 14 as a remedy for voter fraud, consistent with efforts of other states. As previously demonstrated, the evidence shows a tenuous relationship between those rationales and the actual terms of the bill. “[T]he evidence before the Legislature was that in-person voting, the only concern addressed by SB 14, yielded only. two convictions for in-person voter impersonation fraud out of 20 million votes cast in the decade leading up to SB 14’s passage.” Veasey II, at 240. The evidentiary support for SB 14 offered at trial was no better. And the bill did nothing to address mail-in balloting, which is much more vulnerable to fraud...
Furthermore, the terms of the bill were unduly strict. Many categories of acceptable photo IDs permitted by other states were omitted from the Texas bill. The period of time for which IDs could be expired was shorter in SB 14. Fewer exceptions were made available. And the burdens imposed for taking advantage of an exception were heavier with SB 14. The State did not demonstrate that these features of SB 14 were necessarily consistent with its alleged interest in preventing voter fraud or increasing confidence in the electoral system.....
Also evidencing the disconnect between the legislature’s stated purposes and the terms of SB 14 were the constantly shifting rationales, revealed as pretext and detailed at part IV(A)(6) of the opinion. Veasey I, at 653-59. SB 14 was pushed through in a manner contrary to the legislature’s stated prohibition against bills accompanied by a fiscal note. Veasey I, at 649 (part IV(A)(2)(Questionable Fiscal Note)), 651 (part IV(A)(3)(Fiscal Note, Impact Study, and Emergency)). This was due to a $27 million budget shortfall—a crisis the legislature needed to address. SB 14 added $2 million to the budget shortfall. And other pressing problems facing the legislature did not get the procedural push that SB 14 received. So not only did SB 14 not accomplish what it was supposed to, it did accomplish that which it was not supposed to do.
Plaintiffs’ probative evidence—that which was left intact after the Fifth Circuit’s review—establishes that a discriminatory purpose was at least one of the substantial or motivating factors behind passage of SB 14. Consequently, the burden shifted to the State to demonstrate that the law would have been enacted without its discriminatory purpose. Hunter, 471 U.S. at 228. The State has not met its burden. Therefore, this Court holds, again, that SB 14 was passed with a discriminatory purpose in violation of Section 2 of the Voting Rights Act.
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