Barbara Lee v. VA State Board of Elections ( 2016 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1605
BARBARA H. LEE; GONZALO J. AIDA BRESCIA; DEMOCRATIC PARTY
OF VIRGINIA,
Plaintiffs - Appellants,
v.
VIRGINIA STATE BOARD OF ELECTIONS; JAMES B. ALCORN, in his
capacity as Chairman of the Virginia State Board of
Elections; DR. CLARA BELLE WHEELER, in her capacity as Vice-
Chair of the Virginia State Board of Elections; SINGLETON B.
MCALLISTER, in her capacity as Secretary of the Virginia
State Board of Elections; VIRGINIA DEPARTMENT OF ELECTIONS;
EDGARDO CORTES, in his capacity as Commissioner of the
Virginia Department of Elections,
Defendants - Appellees.
-------------------------------------
VIRGINIA ELECTION OFFICIALS AND VOTERS; JUDICIAL EDUCATION
PROJECT,
Amici Supporting Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:15-cv-00357-HEH-RCY)
Argued: September 22, 2016 Decided: December 13, 2016
Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the
opinion, in which Judge Shedd and Judge Agee joined.
ARGUED: Bruce Van Spiva, PERKINS COIE LLP, Washington, D.C., for
Appellants. Mark Fernlund Hearne, II, ARENT FOX LLP, St. Louis,
Missouri, for Appellees. ON BRIEF: Marc E. Elias, Elisabeth C.
Frost, Amanda R. Callais, Washington, D.C., Joshua L. Kaul,
PERKINS COIE LLP, Madison, Wisconsin, for Appellants. Dana J.
Finberg, Sara T. Schneider, San Francisco, California, Kirsten
Hart, Los Angeles, California, Stephen S. Davis, ARENT FOX LLP,
Clayton, Missouri, for Appellees. Michael A. Carvin, Anthony J.
Dick, Stephen A. Vaden, JONES DAY, Washington, D.C., for Amici
Curiae.
2
NIEMEYER, Circuit Judge:
The plaintiffs challenge Virginia Code § 24.2-643(B), the
voter identification law enacted as part of “SB 1256.” 2013 Va.
Acts ch. 725. They allege that the statutory requirement that
voters present photo identification when they vote or shortly
thereafter violates the Voting Rights Act of 1965 and the
Constitution.
The Virginia law provides: (1) that all voters are
required to present a photo identification to cast a ballot in
all elections but are allowed, without photo identification, to
cast a provisional ballot subject to “cure”; (2) that voters who
cast provisional ballots can cure their votes by presenting a
photo identification in person, by fax, or by email within three
days after the election; (3) that a broad range of photo
identification satisfies the photo identification requirement,
including publicly and privately issued forms of identification,
whether current or recently expired; and (4) that if a voter
does not possess an acceptable form of photo identification,
Virginia’s Board of Elections must provide one to the voter free
of charge and without any requirement that the voter present
documentation. In enacting SB 1256, the Virginia legislature
sought to synchronize its requirements with the Help America
Vote Act (“HAVA”), 42 U.S.C. § 15483, a federal law that
3
requires photo identification for first-time voters registering
by mail in federal elections.
The plaintiffs commenced this action challenging SB 1256
under § 2 of the Voting Rights Act, the First Amendment, the
Equal Protection Clause of the Fourteenth Amendment, the
Fifteenth Amendment, and the Twenty-Sixth Amendment, arguing
that the photo identification requirement “unduly burdens the
right to vote, imposes discriminatory burdens on African
Americans and Latinos, and was enacted with the intent to
discriminate against minorities, young voters, and Democrats.”
Following a two-week bench trial, the district court found
that the plaintiffs had failed to present evidence sufficient to
support their claims. From the district court’s final judgment
dated May 19, 2016, the plaintiffs filed this appeal. For the
reasons that follow, we affirm.
I
Since 1996, Virginia has required voters to present
identification before casting ballots. Originally, Virginia law
permitted registered voters who lacked identification to vote by
executing an affirmation of identity at their polling places.
In 2012, the General Assembly enacted SB 1, which eliminated the
self-affirmation procedure while broadening the acceptable forms
of identification, some of which were non-photographic. 2012
4
Va. Acts ch. 839. Because § 5 of the Voting Rights Act at that
time subjected Virginia to preclearance by the U.S. Department
of Justice, Virginia submitted SB 1 for approval, and the
Justice Department approved it.
A year later, on March 25, 2013, the General Assembly
enacted SB 1256, codified in various sections of Title 24.2 of
the Virginia Code but principally at § 24.2-643, to require
photo identification for all voters in all elections. This
change synchronized SB 1 and the federal statute HAVA, which
imposed a photo-identification requirement on all individuals
who had registered by mail and were voting for the first time in
a federal election. For those who did not have any form of
identification, SB 1256 required the Board of Elections to
provide the voter with a free photo ID without requiring the
voter to provide any documentation. Voters could obtain these
free photo IDs from the 133 general registrars’ offices and
additionally from mobile voter-ID stations located throughout
Virginia. To obtain a free photo ID, the voter needed only to
provide his or her name, address, birthdate, and the last four
digits of his or her social security number. The law also
authorized voters to use photo IDs that had expired within the
last year.
Because Virginia was still subject to § 5’s preclearance by
the Department of Justice, SB 1256 was enacted with the
5
understanding that it would be evaluated under § 5. The law was
never subjected to preclearance, however, because, after SB
1256’s enactment, the Supreme Court held § 5 unenforceable in
Shelby County v. Holder, 133 S. Ct. 2612 (2013).
On June 11, 2015, plaintiffs Barbara H. Lee, an African
American and a Democrat who resides in Staunton, Virginia;
Gonzalo J. Aida Brescia, a Latino and a Democrat who resides in
Richmond, Virginia; and the Democratic Party of Virginia
commenced this action against Virginia election officials to
challenge SB 1256. They alleged (1) that SB 1256 violated § 2
of the Voting Rights Act; (2) that SB 1256 imposed undue burdens
on the right to vote and disparate treatment of individuals
without a rational basis, in violation of the First Amendment
and the Equal Protection Clause of the Fourteenth Amendment; (3)
that SB 1256 amounted to “partisan fencing” (a law that fences
out from the voting franchise a sector of the population), in
violation of the First and Fourteenth Amendments; (4) that SB
1256 discriminated on the basis of race in violation of the
Fourteenth and Fifteenth Amendments; and (5) that SB 1256
violated the Twenty-Sixth Amendment by failing “to take action
to reduce wait times to vote,” thus suppressing the number of
votes cast by young voters.
The district court conducted a seven-day bench trial over a
period of two weeks, beginning on February 22, 2016, and, after
6
receiving post-trial briefs, entered final judgment, concluding
that the plaintiffs had “failed to prove by a preponderance of
the evidence that the Virginia Voter ID law, either in its
enactment or implementation, contravenes the Voting Rights Act,
First Amendment, Fourteenth Amendment, Fifteenth Amendment, or
the Twenty-Sixth Amendment.” Consistent with this conclusion,
the court dismissed all of plaintiffs’ claims and denied the
plaintiffs’ request for injunctive relief. In support of its
judgment, the court filed a 62-page Memorandum Opinion, reciting
the governing legal principles and standards, summarizing the
testimony of witnesses presented by the parties, and making
findings of fact and conclusions of law.
The court recited the testimony of the Secretary of the
State Board of Elections that SB 1256 was modeled after voter ID
laws adopted in other States, such as Georgia and South
Carolina, that had been precleared by the Department of Justice
pursuant to § 5 of the Voting Rights Act. The court also found
that, after the enactment of SB 1256, the Board of Elections
“launched a state-wide pre-election campaign informing voters of
the photo identification requirement.” This included the public
posting of some 500,000 posters describing the law and the
“sending [of] 86,000 postcards to persons on the active voter
list who, DMV records reflected, possessed no DMV-issued ID and
would likely need a photo ID to vote under the new law.”
7
The court found that during the election of 2014, when SB
1256 was in effect, “773 provisional ballots were cast by voters
without valid identification” and that during the election of
2015, “408 provisional ballots were cast by voters with no
acceptable form of identification.” One-half of these
provisional ballots were ultimately cured and counted.
The plaintiffs’ evidence about the real-world impact of SB
1256 was presented by 14 voter-witnesses, 2 of whom testified by
deposition. Assessing this evidence, the district court found
that “none of the voter witnesses was actually denied his or her
right to vote,” although for some the process was “a bit
cumbersome.” Of the 14 voter-witnesses, 5 successfully cast
their ballots. Clayton Stallings had appropriate identification
and could have voted in person, but he voted absentee instead.
Shanna Samson, Alex Highland, and Josephine Okiakpe all
possessed appropriate forms of identification but forgot to
bring their IDs with them when they went to vote. They cast
provisional ballots and cured their ballots by sending copies of
their IDs to the registrar. Laning Pollaty did not possess an
appropriate form of identification but was informed of the
availability of a free photo ID at the registrar’s office.
Pollaty obtained a free photo ID and then cast his ballot.
Of the remaining 9 voter-witnesses, 5 possessed the IDs
needed to cast a vote but did not ultimately do so. Abraham
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Barranca, Jack Etheredge, Ellen Lamb, and Pettus Hilt possessed
appropriate IDs but forgot to bring them when they voted. While
all of these voters could have cured their provisional ballots
by sending the registrar a copy of their ID, they did not do so.
Charles Benagh possessed appropriate identification but usually
had voted absentee, and in 2015, he failed to mail in his
absentee ballot.
The circumstances of the remaining 4 voter-witnesses varied
but did not indicate an inability to vote. Kenneth Adams lost
his Virginia driver’s license prior to the election. While he
could have obtained a free photo ID, he instead elected to apply
for a replacement license. That license, however, did not
arrive in time for him to cure his provisional ballot. When
Bobby Smith, Jr., attempted to vote but did not possess an
appropriate form of identification, he cast a provisional ballot
and was told he could cure the ballot by going to the
registrar’s office. He chose not to do so, however, because his
candidate of choice had been declared the winner. When Megan
Cotten attempted to vote without an appropriate form of
identification, a worker at the polling place failed to tell her
of the possibility of casting a provisional ballot and obtaining
a free photo ID from the registrar. Ms. Cotten sent a Twitter
message to Virginia’s Secretary of the Commonwealth, who
replied, informing Ms. Cotten that she should have received and
9
could still receive a provisional ballot. Ms. Cotten, however,
stated that she was unable to take off more time from work and
accordingly did not cast a ballot. Finally, Mary Joanna Jones
cured her provisional 2014 ballot by receiving a free photo ID
from the registrar’s office. Due to an error, however, she did
not receive her photo ID in the mail. When she later called the
registrar, she was informed that her card must have been lost in
the mail. When she stated that she was not able to drive
herself to the registrar’s officer to obtain a new photo ID, the
registrar sent someone to her house, who then photographed her
for her new ID, and she received her free photo ID.
Both sides presented expert witnesses, drawn mostly from
the academic community, who presented widely diverse opinions
based on statistical models and academic studies. The
plaintiffs’ experts concluded that because legislators do not
openly show discriminatory intent, such intent can only be
inferred from circumstantial evidence. In concluding that the
Virginia legislators had been motivated by racially
discriminatory intent, the plaintiffs pointed to the evidence
that the legislators voted on SB 1256 nearly along party lines;
that there was an absence of evidence of voter fraud in
Virginia, suggesting the absence of any need for SB 1256; that
race was strongly correlated with support for the Democratic
Party and that the Republican Party controlled the General
10
Assembly that enacted SB 1256; that various members of the
legislature had made subtle racial appeals during their
campaigns for office; and that the legislature had on other
occasions failed to pass laws favorable to African Americans,
such as the automatic restoration of voting rights to former
nonviolent felons and the expansion of Medicare coverage. The
experts also noted that other States that had passed photo
identification laws were largely controlled by Republicans.
Other experts testifying on behalf of the plaintiffs gave
opinions based on disputed data that a greater percentage of
African Americans, Latinos, and young voters lacked
identification than did Caucasians and older voters. They
concluded, therefore, that the burden of possessing a photo ID
fell heavier on African Americans, Latinos, and young people.
Virginia’s experts criticized the conclusions of the
plaintiffs’ experts, pointing out what they claimed were flaws
in data and logic and identifying omitted or misreported data.
Nonetheless, they agreed that African Americans were slightly
more likely than Caucasians to lack appropriate identification,
concluding that 96.8% of Caucasians and 94.6% of African
Americans had appropriate IDs.
Virginia’s experts also provided polling data showing that
the public overwhelmingly supported a photo identification
11
requirement, mainly to prevent fraud and to provide confidence
in the voting process.
Finally, Virginia’s experts found no evidence of any
discriminatory intent in connection with the enactment of SB
1256.
While the experts on both sides recognized the history of
discrimination in Virginia, they also, to differing degrees,
noted a significant correction, with a trajectory toward greater
inclusion. They pointed to the robust two-party system in
Virginia, to the election of an African American as Virginia’s
governor, and to other similar indicators.
After considering this evidence and the more detailed
evidence of the legislative debates that took place during the
enactment process, the district court found the facts that
underlay its ultimate conclusion. First, the court concluded
that there was no dispute that Virginia had a “regrettable
history of discriminatory policies and practices.” It also
found that the evidence confirmed the commonly held assumption
that African American voters tended to gravitate toward the
Democratic party, although, in recent years, an increasing
number of African Americans had run for statewide office on the
Republican ticket, blurring those political lines.
With respect to the impact of SB 1256, the court concluded
that while the law added “a layer of inconvenience to the voting
12
process, it appear[ed] to affect all voters equally.” More
importantly, the court found that none of the voter witnesses
identified any “legal obstacle inhibiting their opportunity to
vote.” It found that “persons without valid photo
identification were able to cast provisional ballots and cure
them by presenting proper evidence within three days, or
alternatively, if they were disabled, submitting an absentee
ballot.” At bottom, the court indicated that it found itself
reaching the same conclusion reached by Justice Stevens in
Crawford v. Marion County Election Board, 553 U.S. 181, 198
(2008) (announcing the judgment of the Court), where he
concluded: “[T]he inconvenience of making a trip to the [Bureau
of Motor Vehicles], gathering the required documents, and posing
for a photograph surely does not qualify as a substantial burden
on the right to vote, or even represent a significant increase
over the usual burdens of voting.” (Emphasis added).
At bottom, the district court found the evidence
“insufficient to support Plaintiffs’ claim that SB 1256 ha[d]
denied African Americans, Latino, and young voters an equal
opportunity to participate in the political process and to elect
representatives of their choice.” It also found as fact that
the plaintiffs’ evidence failed to demonstrate that SB 1256
“ha[d] an adverse disparate impact on African American or Latino
voters, impose[d] a discriminatory burden on those protected
13
classes, or cause[d] anyone to have less opportunity than others
to participate in the political process.” While the court
recognized that African Americans and Latinos were “slightly
less likely” to have appropriate identifications than were
Caucasians, it found that the burden to obtain an appropriate
identification was the “burden to travel to the DMV or the local
registrar’s office to obtain an acceptable form of
identification.” Relying on Crawford, the court concluded that
SB 1256 did not impose “excessively burdensome requirements on
any class of voters.” 553 U.S. at 202.
With respect to the plaintiffs’ claim that the legislature
intentionally discriminated on the basis of race and age in
enacting SB 1256, the court found that the evidence failed “to
show any departure from normal legislative procedures.”
Although it recognized that the enactment of SB 1256 was on a
near-party-line vote, the bill was nonetheless subject to a
robust debate from all sides and the debate lacked any
statements by legislators indicating any sort of discriminatory
intent. In sum, the court concluded:
The extensive testimonial and documentary evidence
offered in this case has failed to reveal by a
preponderance of the evidence that the Virginia
General Assembly, a legislative body composed of 140
Delegates and Senators, enacted the Virginia photo
identification requirement with the intent to suppress
minority and young voters.
14
From the district court’s judgment dated May 19, 2016, the
plaintiffs filed this appeal.
II
The plaintiffs first contend that SB 1256 violates § 2 of
the Voting Rights Act of 1965 in that it imposes a
discriminatory burden on African Americans and Latinos, such
that they have less opportunity to vote than do Caucasians.
This burden, they argue, results from the disparate
inconvenience that the photo identification requirement imposes
on African Americans and Latinos.
Section 2 provides:
(a) No voting qualification or prerequisite to voting
or standard, practice, or procedure shall be imposed
or applied by any State or political subdivision in a
manner which results in a denial or abridgement of the
right of any citizen of the United States to vote on
account of race or color, or in contravention of the
guarantees set forth in section 10303(f)(2) [similarly
protecting members of a language minority group] of
this title, as provided in subsection (b).
(b) A violation of subsection (a) is established if,
based on the totality of circumstances, it is shown
that the political processes leading to nomination or
election in the State or political subdivision are not
equally open to participation by members of a class of
citizens protected by subsection (a) 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. The
extent to which members of a protected class have been
elected to office in the State or political
subdivision is one circumstance which may be
considered: Provided, That nothing in this section
establishes a right to have members of a protected
15
class elected in numbers equal to their proportion in
the population.
52 U.S.C. § 10301 (emphasis added). Thus, the statutory
requirements for proving a § 2 violation are: (1) the
identification of a qualification, prerequisite, standard,
practice, or procedure (“a structure or practice”), (2) which
results in a denial or abridgement of the right to vote (3) on
account of race or color or because the person is a member of a
language minority group (“the protected class”) (4) such that,
in the totality of circumstances, the political process is not
equally open to the protected class (5) in that its members have
less opportunity than others to participate in the process and
elect representatives of their choice. Congress deliberately
omitted any requirement of showing intent, having “revised § 2
to make clear that a violation [can] be proved by showing
discriminatory effect alone and to establish as a relevant legal
standard the ‘results test’ applied . . . in White v. Regester,
412 U.S. 755 (1973).” Thornburg v. Gingles, 478 U.S. 30, 35
(1986) (citation altered). The Gingles Court noted that the
“essence” of a burdensome structure or practice that violates
§ 2 is its “interact[ion] with social and historical conditions
[that] cause[s] an inequality” in electoral opportunity. Id. at
47; see also League of Women Voters of North Carolina v. North
Carolina, 769 F.3d 224, 240 (4th Cir. 2014).
16
In this case, the structure or practice identified by
plaintiffs was SB 1256’s requirement that every voter provide a
photo ID either at the time of voting or within three days
thereafter. The plaintiffs argue that, because members of the
protected class are less likely to possess photo identification,
SB 1256’s requirement imposes an unacceptable, disparate burden
that has the effect of denying African Americans and Latinos an
equal opportunity to vote. They state, “[W]hat matters . . . is
not how many minorities are being denied equal electoral
opportunities but simply that ‘any’ minority voter is being
denied equal electoral opportunities. . . . [E]ven one
disenfranchised voter -- let alone several thousand -- is too
many,” quoting League of Women Voters, 769 F.3d at 244.
Virginia contends that there is no evidence that any
eligible Virginia voter has been or will be denied an equal
opportunity to vote. It asserts that the evidence of any
person’s failure to cast a ballot in this case was not
attributable to Virginia’s ID law but to that person’s decision
not to cure a provisional ballot.
The district court resolved this issue, finding a lack of
evidence to support the plaintiffs’ claims:
African Americans, as a demographic block, are by a
slim statistical margin less likely to have a form of
valid identification. Neither this statistical
conclusion nor Dr. Rodden’s [an expert witness for the
plaintiffs] analysis supports a reliable factual
17
finding that African Americans or Latinos are denied
an equal opportunity to participate in the electoral
process. Nothing presented supports a conclusion that
minorities are not afforded an equal opportunity to
obtain a free voter ID. As described by numerous
witnesses during the course of trial, eligible voters
do not need to present any independent documentation
to obtain a free voter form of identification under
Virginia Code § 24.2-643 and its implementing
regulations. The statute simply requires that a
registrant provide her name, address, birthdate, and
social security number and sign the registration form
swearing that the information provided is true and
correct.
A complex § 2 analysis is not necessary to resolve this
issue because the plaintiffs have simply failed to provide
evidence that members of the protected class have less of an
opportunity than others to participate in the political process.
Under the law, as borne out by the record, every registered
voter who shows up to his or her local polling place on the day
of the election has the ability to cast a ballot and to have the
vote counted, even if the voter has no identification. When a
voter shows up without identification, he or she is able to cast
a provisional ballot, which can be cured by later presenting a
photo ID. If the voter lacks an acceptable form of
identification, the voter can obtain a free voter ID with which
to cure the provisional ballot. Because, under Virginia’s
election laws, every registered voter in Virginia has the full
ability to vote when election day arrives, SB 1256 does not
diminish the right of any member of the protected class to have
18
an equal opportunity to participate in the political process and
thus does not violate § 2.
The plaintiffs argue that, for some groups of minority
voters, this opportunity is disproportionately burdened because
a lower percentage of minorities have qualifying photo IDs and
the process of obtaining photo IDs requires those voters to
spend time traveling to and from a registrar’s office. The
Supreme Court has held, however, that this minor inconvenience
of going to the registrar’s office to obtain an ID does not
impose a substantial burden. As recognized in Crawford, 553
U.S. at 198, “the inconvenience of making a trip to [a
government office], gathering the required documents, and posing
for a photograph surely does not qualify as a substantial burden
on the right to vote, or even represent a significant increase
over the usual burdens of voting.” 553 U.S. at 198 (Stevens,
J., announcing the judgment of the Court); see also id. at 209
(Scalia, J., concurring in the judgment) (“The burden of
acquiring, possessing, and showing a free photo identification
is simply not severe,” and “the State’s interests are sufficient
to sustain that minimal burden”).
Nonetheless, the plaintiffs press their argument further,
asserting categorically that as long as there is disparity in
the rates at which different groups possess acceptable
identification, § 2 is violated. To make this assertion,
19
however, the plaintiffs have to make an unjustified leap from
the disparate inconveniences that voters face when voting to the
denial or abridgement of the right to vote. Every decision that
a State makes in regulating its elections will, inevitably,
result in somewhat more inconvenience for some voters than for
others. For example, every polling place will, by necessity, be
located closer to some voters than to others. To interpret § 2
as prohibiting any regulation that imposes a disparate
inconvenience would mean that every polling place would need to
be precisely located such that no group had to spend more time
traveling to vote than did any other. Similarly, motor-voter
registration would be found to be invalid as members of the
protected class were less likely to possess a driver’s license.
Yet, courts have also correctly rejected that hypothetical. See
Frank v. Walker, 768 F.3d 744, 754 (7th Cir. 2014), cert.
denied, 135 S. Ct. 1551 (2015).
We conclude that § 2 does not sweep away all election rules
that result in a disparity in the convenience of voting. As we
noted in North Carolina State Conference of NAACP v. McCrory,
831 F.3d 204, 241 (4th Cir. 2016), “it cannot be that states
must forever tip-toe around certain voting provisions” that
would have more effect on the voting patterns of one group than
another. Rather, § 2 asks us to evaluate whether the Virginia
process has diminished the opportunity of the protected class to
20
participate in the electoral process. If Virginia had required
voters to present identifications without accommodating citizens
who lacked them, the rule might arguably deprive some voters of
an equal opportunity to vote. But where, as here, Virginia
allows everyone to vote and provides free photo IDs to persons
without them, we conclude that SB 1256 provides every voter an
equal opportunity to vote and thus does not violate § 2 of the
Voting Rights Act.
III
The plaintiffs next contend that SB 1256 violates the
Constitution in that SB 1256 was enacted with the intent to
discriminate on the basis of race, in violation of the
Fourteenth and Fifteenth Amendments. In support of this
contention, they point: to evidence of Virginia’s pre-1965
history when substantial and illegal barriers existed when
minorities voted; to the fact that SB 1256 was enacted only one
year after the General Assembly had enacted SB 1; to various
statements made by legislators during the legislative debate,
including the statements of a state senator insisting that only
an unexpired form of ID should qualify; to the burden imposed on
minorities by requiring a photo ID; to the fact that while the
legislators were debating SB 1256, the Supreme Court granted
certiorari in Shelby County; to the fact that an African-
21
American President of the United States had been reelected in
2012 and had won Virginia; to the evidence advanced by their
experts that several other States, controlled by Republicans,
had enacted voter identification laws; and to an alleged lack of
any rationale for the law’s enactment other than discrimination
on the basis of race. They argue that our recent decision
striking down portions of North Carolina’s ID law presented
similar facts, which should dictate the outcome here. See
McCrory, 831 F.3d 204.
In response, Virginia points to testimony of the
plaintiffs’ expert witnesses during which they conceded that
there was no direct evidence that Virginia adopted SB 1256 to
discriminate against minorities. Virginia also points to the
testimony of its own experts, who reviewed the legislative
history and public record related to SB 1256 and concluded that
evidence did not support a defensible conclusion that any member
of the legislature voted for SB 1256 with the intent to suppress
the vote of minorities. Rather, the experts concluded that the
legislature demonstrated support for the bill for reasons other
than vote suppression, such as the prevention of voter fraud and
the promotion of public confidence in the voting system -- in
particular, because “public opinion favored such legislation, a
public perception of potential voter fraud, promoting confidence
in the integrity of the electoral system, and sound public
22
policy in preventing future acts of voter fraud.” These
purposes for enacting SB 1256 were corroborated by testimony of
election officials. In addition, Virginia presented some
evidence of voter fraud, as well as the conclusions reached by
the Carter-Baker Commission (chaired by former President Jimmy
Carter and former Secretary of State James Baker), which favored
use of photo identification, because, even though there was no
evidence of extensive fraud in U.S. elections, “there is no
doubt that it occurs” and that “it could affect the outcome of a
close election.” Comm’n on Fed. Election Reform, Building
Confidence in U.S. Elections 18 (2005). The Carter-Baker
Commission also noted that “the perception of possible fraud
contributes to low confidence in the system. A good ID system
could deter, detect, or eliminate several potential avenues of
fraud -- such as multiple voting or voting by individuals using
the identities of others or those who are deceased -- and thus
it can enhance confidence.” Id. at 18-19. Virginia showed that
the General Assembly considered the Carter-Baker Commission
report when adopting SB 1256.
In its Memorandum Opinion, the district court recited the
extensive testimony of various legislators and the historical
facts both with respect to the enactment of SB 1256 and prior
historical facts in Virginia. After considering the evidence,
the court concluded:
23
The evidence . . . however demonstrated that
irrespective of statistics, a large segment of
Virginia voters thought a photo identification
requirement for voting was a prudent safeguard
measure. As one expert noted, responding to public
concern by passing a law to prevent crime before it
happened amounted to a reasonable action on the part
of the General Assembly. In fact the Supreme Court
agreed in Crawford. See 553 U.S. at 197. Further,
voter confidence, uniformity, and fraud prevention all
stood as legitimate reasons to enact SB 1256.
Additionally, the evidence failed to show any
departure from normal legislative procedures.
Instead, although ultimately passing on a near-party-
line vote, the bill was subject to robust debate from
all sides. Finally, there was a complete dearth of
statements by legislators indicating any sort of
discriminatory intent.
The extensive testimonial and documentary evidence
offered in this case has failed to reveal by a
preponderance of the evidence that the Virginia
General Assembly, a legislative body composed of 140
Delegates and Senators, enacted the Virginia photo
identification requirement with the intent to suppress
minority and young voters.
The parties agree that the standard for finding racial
discrimination under the Constitution in these circumstances is
set forth in Village of Arlington Heights v. Metropolitan
Housing Development Corp., 429 U.S. 252 (1977). See also
McCrory, 831 F.3d at 220-21.
In Village of Arlington Heights, the plaintiffs contended
that the Village’s denial of a rezoning application to convert a
15-acre parcel from single-family to multi-family homes was
motivated by racial discrimination. In addressing the claim,
the Supreme Court articulated the standard that the plaintiffs
24
had to satisfy to prove such a claim: “[O]fficial action will
not be held unconstitutional solely because it results in a
racially disproportionate impact. . . . Proof of racially
discriminatory intent or purpose is required to show a
violation,” although that purpose need only be “a motivating
factor in the decision.” Village of Arlington Heights, 429 U.S.
at 264-66 (emphasis added). Accordingly, when “[d]etermining
whether invidious discriminatory purpose was a motivating
factor,” a court must undertake “a sensitive inquiry into such
circumstantial and direct evidence of intent as may be
available.” Id. at 266.
The Village of Arlington Heights Court then reviewed the
evidence, acknowledging that the impact of the Village’s
rezoning decision “does arguably bear more heavily on racial
minorities. Minorities constitute 18% of the Chicago area
population, and 40% of the income group said to be eligible for
[the development at issue]. But there is little about the
sequence of events leading up to the decision that would spark
suspicion.” Village of Arlington Heights, 429 U.S. at 269. The
Court pointed to the fact that the rezoning request progressed
according to the usual procedures; that the Commission even
scheduled two additional hearings to accommodate further debate;
that the statements of board members “focused almost exclusively
on the zoning aspects of the . . . petition,” although there may
25
have been “reliance by some neighboring property owners on the
maintenance of single-family zoning in the vicinity.” Id. at
270. In the end, after applying the announced standard to the
facts presented, the Court concluded that the challengers had
“simply failed to carry their burden of proving that
discriminatory purpose was a motivating factor in the Village’s
decision.” Id.
In this case, the evidence of racially discriminatory
intent is similarly lacking. SB 1256 was enacted to streamline
Virginia’s election laws by imposing on all voters the
requirements that HAVA imposes on some. Moreover, in enacting a
photo identification requirement, the Virginia legislature went
out of its way to make its impact as burden-free as possible.
It allowed a broad scope of IDs to qualify; it provided free IDs
to those who did not have a qualifying ID; it issued free IDs
without any requirement of presenting documentation; and it
provided numerous locations throughout the State where free IDs
could be obtained. And, as in Village of Arlington Heights, the
legislative process here was normal, with full debate, and no
evidence was presented of untoward external pressures or
influences affecting the debate. While there was a substantial
party split on the vote enacting the law, two non-Republicans
(one Democrat and one Independent) voted for the measure as
26
well. In short, we conclude that the district court’s factual
findings with respect to this issue were not clearly erroneous.
The plaintiffs nonetheless argue that the circumstances
here are not unlike those in McCrory and that McCrory therefore
requires us to find that SB 1256 was enacted with discriminatory
intent. This argument, however, fails to understand our holding
in McCrory.
In McCrory, we held that the facts found by the district
court showed that the North Carolina election law was enacted
“with [racially] discriminatory intent,” 831 F.3d at 215, as
revealed by the legislature’s conduct leading up to the law’s
enactment. We concluded that, based on the totality of
circumstances, the North Carolina process targeted black voters
with “almost surgical precision.” Id. at 214. As we explained,
for years, North Carolina’s election laws were subject to
preclearance by the Department of Justice under § 5 of the
Voting Rights Act and, under that preclearance regime, “African
American registration and turnout rates had finally reached
near-parity with white registration and turnout rates. African
Americans were poised to act as a major electoral force.” Id.
But, we noted, on the day after the Supreme Court eliminated
§ 5’s preclearance obligations in Shelby County, the Republican
Chairman of the Senate Rules Committee, whose party had been
rarely supported by African Americans, announced the intention
27
of enacting a new “omnibus” election law. Id. at 214, 216.
After the announcement but before the enactment of any law, the
legislature requested data “on the use, by race, of a number of
voting practices.” Id. at 214 (emphasis added). And based on
the data, the legislature, acting “swiftly,” enacted legislation
“that restricted voting and registration in five different ways,
all of which disproportionately affected African Americans.”
Id. at 214, 216. Moreover, the legislature offered “only meager
justifications” for the new provisions. Id. at 214. Equally
telling, in its efforts to “rush” the omnibus bill through the
legislative process, the legislature engaged in “unusual
procedures.” Id. at 228. As we concluded, “the State took away
minority voters’ opportunity because they were about to exercise
it. . . . [T]his bears the mark of intentional discrimination.”
Id. at 215 (alterations omitted) (quoting League of United
States Citizens v. Penny, 548 U.S. 399, 440 (2006)).
These facts in McCrory are in no way like those found in
Virginia’s legislative process for the enactment of SB 1256.
While the Virginia legislature knew that certiorari had been
granted in Shelby County when it was conducting its debates on
SB 1256, Shelby County had not yet been decided, and its outcome
was not known. The Virginia General Assembly thus necessarily
acted as if SB 1256 would be reviewed by the Department of
Justice under § 5 of the Voting Rights Act. In addition, the
28
legislative process contained no events that would “spark
suspicion.” Village of Arlington Heights, 429 U.S. at 269.
Unlike the departure from the normal legislative process that
occurred in North Carolina, SB 1256 passed as part of Virginia’s
standard legislative process, following full and open debate.
And the legislature did not call for, nor did it have, the
racial data used in the North Carolina process described in
McCrory. Moreover, the provisions included in SB 1256 did not
target any group of voters, let alone target with surgical
precision. Indeed, SB 1256 requires photo identification for
all voters and allows the use of photo IDs provided by
Virginia’s public and private universities, which are, according
to plaintiffs’ own witnesses, disproportionately possessed by
young people and African Americans.
Reviewing the totality of the circumstances involved in the
enactment of SB 1256 in light of Village of Arlington Heights
and McCrory, we conclude that the evidence in this case was
insufficient to prove that racial discrimination was a
motivating purpose for the enactment of SB 1256. The law was
passed by the Virginia legislature through the normal
legislative process, and that process was unaccompanied by any
facts or circumstances suggesting the presence of racially
discriminatory intent.
29
IV
The plaintiffs contend next that even if SB 1256 was
enacted without racially discriminatory intent, it is,
nonetheless, unconstitutional because it places an undue burden
on the constitutionally protected right to vote. They point to
the “cumbersome” process faced by those who seek to vote but do
not possess photo identification, noting particularly that in
order to obtain a free photo ID from the government, a voter
must travel to the registrar’s office and that this process
might, for certain plaintiffs, take hours. They maintain that
this burden is not justified by the public interests identified
by Virginia. The plaintiffs argue that the evidence shows no
voter-impersonation fraud in Virginia and that, in any event, a
free ID is so easy to obtain that it would not prevent such
fraud. They assert, in addition, that requiring photo
identification will not increase public confidence in elections
and also that Virginia’s stated interest in conforming its
practices to the federal requirements for photo identification
imposed by HAVA was not sufficiently demonstrated.
The parties agree that the legal principles governing
resolution of this issue are set forth by the Anderson-Burdick
analysis, based on the Supreme Court’s decisions in Anderson v.
Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504
U.S. 428 (1992). In Anderson, the Court, finding that an early
30
filing deadline unduly burdened voting rights, articulated the
analysis to be applied in evaluating a State’s election laws
under the First and Fourteenth Amendments. First, the Court
recognized that there must be “a substantial regulation of
elections if they are to be fair and honest and if some sort of
order, rather than chaos, is to accompany the democratic
processes.” Anderson, 460 U.S. at 788 (quoting Storer v. Brown,
415 U.S. 724, 730 (1974)). The Court explained further:
To achieve these necessary objectives, States have
enacted comprehensive and sometimes complex election
codes. Each provision of these schemes, whether it
governs the registration and qualifications of voters,
the selection and eligibility of candidates, or the
voting process itself, inevitably affects -- at least
to some degree -- the individual’s right to vote and
his right to associate with others for political ends.
Nevertheless, the States’ important regulatory
interests are generally sufficient to justify
reasonable, nondiscriminatory restrictions.
Id. After giving this background, the Court then articulated
the governing analysis for a constitutional challenge to a State
law regulating elections, stating:
[A court] must first consider the character and
magnitude of the asserted injury to the rights
protected by the First and Fourteenth Amendments that
the plaintiff seeks to vindicate. It then must
identify and evaluate the precise interests put forth
by the State as justifications for the burden imposed
by its rule. In passing judgment, the Court must not
only determine the legitimacy and strength of each of
those interests; it also must consider the extent to
which those interests make it necessary to burden the
plaintiff’s rights. Only after weighing all these
factors is the reviewing court in a position to decide
whether the challenged provision is unconstitutional.
31
Id. at 789.
In Burdick, the Court further clarified the constitutional
analysis by noting that election laws generally are not subject
to strict scrutiny, even though voting rights are fundamental
under the Constitution. The Court explained:
The Constitution provides that States may prescribe
“[t]he Times, Places and Manner of holding Elections
for Senators and Representatives,” Art. I, § 4, cl. 1,
and the Court therefore has recognized that States
retain the power to regulate their own elections.
Common sense, as well as constitutional law, compels
the conclusion that government must play an active
role in structuring elections.
Burdick, 504 U.S. at 433. In view of these constitutional
assignments of responsibility and the requirements of State
regulation, the Court noted that applying a strict scrutiny
standard to every voting regulation “would tie the hands of
States seeking to assure that elections are operated equitably
and efficiently.” Id. Thus, while “severe” restrictions “must
be narrowly drawn to advance a state interest of compelling
importance,” a reasonable, nondiscriminatory restriction on
voting rights is justified by a State’s “important regulatory
interests.” Id. at 434 (internal quotation marks and citations
omitted).
In Crawford, the Supreme Court applied the Anderson-Burdick
analysis in upholding the constitutionality of Indiana’s photo
identification law, which was similar to SB 1256 but in fact
32
more restrictive. The Indiana law required that voters present
a government-issued photo ID in order to vote, and voters who
did not have such identification could obtain one only if they
presented proof of residence and identity, such as with a birth
certificate. In conducting the Anderson-Burdick analysis, the
Court found that Indiana had a valid interest in adopting
standards that aligned with federal election statutes, including
HAVA, where Congress had indicated a belief that “photo
identification is one effective method of establishing a voter’s
qualification to vote.” Crawford, 553 U.S. at 193 (Stevens, J.,
announcing the judgment of the Court). The Court also found
that Indiana had valid interests in preventing voter fraud, even
though there was no evidence of any in-person voter
impersonation having occurred in Indiana, and an independent
interest in protecting voter confidence in the integrity of its
elections. Id. at 194-97. The Court concluded that these state
interests justified the burdens imposed by the photo
identification requirements in its election law. Id. at 202.
And for voters who lacked the required identification, the Court
explained the ability to obtain a free photo identification
meant that the burden was not substantial; the “inconvenience of
making a trip to the BMV, gathering the required documents, and
posing for a photograph surely does not qualify as a substantial
burden on the right to vote.” Id. at 198. While the Court
33
recognized that for some voters, such as those who lacked a
birth certificate or other documentation needed to obtain a free
ID, the burden was greater, it nonetheless concluded that this
greater burden was not sufficiently substantial to render the
statute unconstitutional. Id. at 199-202.
The Crawford Court’s application of the Anderson-Burdick
analysis to Indiana’s election law controls our resolution of
the issue here. SB 1256 imposes a lighter burden than did the
Indiana law challenged in Crawford, particularly inasmuch as
Virginia voters are not required to present any birth
certificate or other documentation to obtain a free ID. Even as
the burden imposed by SB 1256 is lighter, the justifications
that Virginia advances here for SB 1256 are the same as those
advanced by Indiana -- alignment with federal statutes like
HAVA, prevention of voter fraud, ∗ and the preservation of voter
confidence in the integrity of elections. Because those same
justifications were held to support the greater burden imposed
∗ In both Crawford and the record here, there was limited
evidence of voter fraud. Nonetheless, we have, since oral
argument here, seen that the FBI has announced an investigation
into a circumstance where 19 deceased Virginians in Harrisonburg
were recently re-registered to vote. Laura Vozela, He fought in
World War II. He died in 2013. And he just registered to vote
in Va., Wash. Post (Sep. 29, 2016), https://perma.cc/GXV4-BKAG.
And in a separate case, an indictment has been returned in
Alexandria against a man charged with multiple counts of voter-
registration fraud. Justin Wm. Moyer, Man who registered voters
for progressive Virginia group charged with fraud, Wash. Post
(Oct. 28, 2016), https://perma.cc/YWX5-TZDW.
34
on voters in Crawford, they must, a fortiori, justify the
lighter burdens imposed on Virginia voters by SB 1256.
Accordingly, we conclude that SB 1256 does not impose an
unconstitutional burden on the right to vote.
V
Finally, the plaintiffs allege that SB 1256 violates their
rights under the Twenty-Sixth Amendment. The Twenty-Sixth
Amendment provides that “[t]he right of citizens of the United
States, who are eighteen years of age or older, to vote shall
not be denied or abridged by the United States or by any State
on account of age.” U.S. Const. amend. XXVI, § 1. This
language parallels the language of the Fifteenth Amendment,
which provides similarly that “[t]he right of citizens of the
United States to vote shall not be denied or abridged by the
United States or by any State on account of race, color, or
previous condition of servitude.” U.S. Const. amend. XV, § 1.
Because of the parallel language, the plaintiffs argue that the
Fifteenth Amendment jurisprudence provides the analytical basis
for considering a Twenty-Sixth Amendment claim of discrimination
on the basis of age. Thus, they maintain that just as SB 1256
imposed an undue burden on African Americans and Latinos, it
also placed an undue burden on “young people.”
35
First, it is far from clear that the Twenty-Sixth Amendment
should be read to create a cause of action that imports
principles from Fifteenth-Amendment jurisprudence. Even if it
does, however, the plaintiffs point to no evidence in the record
that supports their age-discrimination claim other than their
evidence that African Americans, Latinos, and young people are
less likely to possess photo identifications and that a Virginia
legislator made a passing comment that President Obama had been
focusing on obtaining the support of young voters. Moreover, if
the Twenty-Sixth Amendment functions like the Fifteenth
Amendment, the plaintiffs would also need to demonstrate an
intent to discriminate on the basis of age. The district court
found that the plaintiffs “failed to show that SB 1256 was
intended, either in its enactment or implementation, to
discriminate against young voters.” Based on our review of the
record, we agree.
VI
At bottom, just as Congress in HAVA found it beneficial to
the voting process and the public perception of the voting
process to require photo IDs, and just as the Carter-Baker
Commission found similarly, Virginia found it beneficial to
require photo identification in all elections. Moreover,
Virginia took numerous steps to mitigate any burdens that this
36
requirement might impose on voters, suggesting that a benign
purpose underlay SB 1256’s enactment. It allowed a broad scope
of acceptable forms of identification, which included most IDs
that citizens have and that are reasonably reliable; it allowed
citizens attempting to vote without identification to cast
provisional ballots and then cure their identification
deficiency within three days; it provided those citizens who
lacked photo identification a free photo ID without the need to
present any documentation; and it provided assistance to
citizens expressing difficulty in obtaining free IDs.
In sum, not only does the substance of SB 1256 not impose
an undue burden on minority voting, there was no evidence to
suggest racially discriminatory intent in the law’s enactment.
The judgment of the district court is accordingly
AFFIRMED.
37