Veasey v. Perry

Cite as: 574 U. S. ____ (2014) 1
GINSBURG, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 14A393, 14A402 and 14A404
_________________
MARC VEASEY, ET AL.
14A393 v.
RICK PERRY, GOVERNOR OF TEXAS, ET AL.
ON APPLICATION TO VACATE STAY
TEXAS STATE CONFERENCE OF NAACP
BRANCHES, ET AL.
14A402 v.
NANDITA BERRY, TEXAS SECRETARY
OF STATE, ET AL.
ON APPLICATION TO VACATE STAY
UNITED STATES v. TEXAS, ET AL.
14A404
ON APPLICATION TO VACATE STAY
[October 18, 2014]
The applications to vacate the stay entered by the Unit-
ed States Court of Appeals for the Fifth Circuit on October
14, 2014, presented to Justice Scalia and by him referred
to the Court are denied. The motion for leave to file the
response to the applications under seal with redacted
copies for the public record is granted.
JUSTICE GINSBURG, with whom JUSTICE SOTOMAYOR and
JUSTICE KAGAN join, dissenting.
I would vacate the Fifth Circuit’s stay of the District
Court’s final judgment enjoining the enforcement of Sen-
ate Bill 14.
This case is unlike the Ohio and North Carolina applica-
tions recently before the Court concerning those States’
2 VEASEY v. PERRY
GINSBURG, J., dissenting
election procedures. Neither application involved, as this
case does, a permanent injunction following a full trial and
resting on an extensive record from which the District
Court found ballot-access discrimination by the State. I
would not upset the District Court’s reasoned, record-
based judgment, which the Fifth Circuit accorded little, if
any, deference. Cf. Purcell v. Gonzalez, 549 U.S. 1, 5
(2006) (per curiam) (Court of Appeals erred in failing to
accord deference to “the ruling and findings of the District
Court”). The fact-intensive nature of this case does not
justify the Court of Appeals’ stay order; to the contrary,
the Fifth Circuit’s refusal to home in on the facts found by
the district court is precisely why this Court should vacate
the stay.
Refusing to evaluate defendants’ likelihood of success on
the merits and, instead, relying exclusively on the poten-
tial disruption of Texas’ electoral processes, the Fifth
Circuit showed little respect for this Court’s established
stay standards. See Nken v. Holder, 556 U.S. 418, 434
(2009) (“most critical” factors in evaluating request for a
stay are applicant’s likelihood of success on the merits and
whether applicant would suffer irreparable injury absent a
stay). Purcell held only that courts must take careful
account of considerations specific to election cases, 549
U.S., at 4, not that election cases are exempt from tradi-
tional stay standards.
In any event, there is little risk that the District Court’s
injunction will in fact disrupt Texas’ electoral processes.
Texas need only reinstate the voter identification proce-
dures it employed for ten years (from 2003 to 2013) and in
five federal general elections. To date, the new regime,
Senate Bill 14, has been applied in only three low-
participation elections—namely, two statewide primaries
and one statewide constitutional referendum, in which
voter turnout ranged from 1.48% to 9.98%. The November
2014 election would be the very first federal general elec-
Cite as: 574 U. S. ____ (2014) 3
GINSBURG, J., dissenting
tion conducted under Senate Bill 14’s regime. In all like-
lihood, then, Texas’ poll workers are at least as familiar
with Texas’ pre-Senate Bill 14 procedures as they are with
the new law’s requirements.
True, in Purcell and in recent rulings on applications
involving voting procedures, this Court declined to upset a
State’s electoral apparatus close to an election. Since
November 2013, however, when the District Court estab-
lished an expedited schedule for resolution of this case,
Texas knew full well that the court would issue its ruling
only weeks away from the election. The State thus had
time to prepare for the prospect of an order barring the
enforcement of Senate Bill 14. Of greater significance, the
District Court found “woefully lacking” and “grossly”
underfunded the State’s efforts to familiarize the public
and poll workers regarding the new identification re-
quirements. No. 13–cv–00193 (SD Tex., Oct. 9, 2014), pp.
20, 31–32, 91, n. 398 (Op.). Furthermore, after the Dis-
trict Court’s injunction issued and despite the State’s
application to the Court of Appeals for a stay, Texas
stopped issuing alternative “election identification certifi-
cates” and completely removed mention of Senate Bill 14’s
requirements from government Web sites. See Emergency
Application to Vacate Fifth Circuit Stay of Permanent
Injunction 11 and App. H. In short, any voter confusion or
lack of public confidence in Texas’ electoral processes is in
this case largely attributable to the State itself.
Senate Bill 14 replaced the previously existing voter
identification requirements with the strictest regime in
the country. Op. 20–21. The Bill requires in-person vot-
ers to present one of a limited number of government-
issued photo identification documents. Ibid. Texas will
not accept several forms of photo ID permitted under the
Wisconsin law the Court considered last week.* For ex-
——————
* The District Court enjoined Wisconsin from implementing the law,
the Seventh Circuit stayed the District Court’s injunction, and in turn,
4 VEASEY v. PERRY
GINSBURG, J., dissenting
ample, Wisconsin’s law permits a photo ID from an in-
state four-year college and one from a federally recognized
Indian tribe. Texas, under Senate Bill 14, accepts neither.
Nor will Texas accept photo ID cards issued by the U. S.
Department of Veterans’ Affairs. Those who lack the
approved forms of identification may obtain an “election
identification certificate” from the Texas Department of
Public Safety (DPS), but more than 400,000 eligible voters
face round-trip travel times of three hours or more to the
nearest DPS office. Op. 18, 76. Moreover, applicants for
an election identification certificate ordinarily must pre-
sent a certified birth certificate. Id., at 70. A birth certifi-
cate, however, can be obtained only at significant cost—at
least $22 for a standard certificate sent by mail. Id., at 22.
And although reduced-fee birth certificates may be ob-
tained for $2 to $3, the State did not publicize that option
on DPS’s Web site or on Department of Health and Hu-
man Services forms for requesting birth certificates. Id.,
at 70.
On an extensive factual record developed in the course
of a nine-day trial, the District Court found Senate Bill 14
irreconcilable with §2 of the Voting Rights Act of 1965
because it was enacted with a racially discriminatory
purpose and would yield a prohibited discriminatory
result. The District Court emphasized the “virtually
unchallenged” evidence that Senate Bill 14 “bear[s] more
heavily on” minority voters. Id., at 133. In light of the
“seismic demographic shift” in Texas between 2000 and
2010, making Texas a “majority-minority state,” the Dis-
trict Court observed that the Texas Legislature and Gov-
ernor had an evident incentive to “gain partisan ad-
vantage by suppressing” the “votes of African-Americans
and Latinos.” Id., at 40, 48, 128. Cf. League of United
Latin American Citizens v. Perry, 548 U.S. 399, 438–442
——————
this Court vacated the Seventh Circuit’s stay. See Frank v. Walker,
ante, p. 1.
Cite as: 574 U. S. ____ (2014) 5
GINSBURG, J., dissenting
(2006) (Texas Legislature acted with a “troubling blend of
politics and race” in response to “growing” minority partic-
ipation). The District Court also found a tenuous connec-
tion between the harms Senate Bill 14 aimed to ward off,
and the means adopted by the State to that end. Between
2002 and 2011, there were only two in-person voter fraud
cases prosecuted to conviction in Texas. Op. 13–14. De-
spite awareness of the Bill’s adverse effect on eligible-to-
vote minorities, the Texas Legislature rejected a “litany of
ameliorative amendments” designed to lessen the Bill’s
impact on minority voters—for example, amendments
permitting additional forms of identification, eliminating
fees, providing indigence exceptions, and increasing voter
education and funding—without undermining the Bill’s
purported policy justifications. Id., at 35–37, 132 144–147.
Texas did not begin to demonstrate that the Bill’s discrim-
inatory features were necessary to prevent fraud or to
increase public confidence in the electoral process. Id., at
133; see also Id., at 113 (proponents of Bill unable to
“articulate any reason that a more expansive list of photo
IDs would sabotage” their efforts at detecting and deter-
ring voter fraud). On this plain evidence, the District
Court concluded that the Bill would not have been enacted
absent its racially disparate effects. Id., at 133.
The District Court further found that Senate Bill 14
operates as an unconstitutional poll tax—an issue neither
presented by any of the recent applications nor before the
Court in Crawford v. Marion County Election Bd., 553
U.S. 181 (2008) (upholding Indiana voter identification
law against facial constitutional challenge). See Id., at
186, and n. 4. Under Senate Bill 14, a cost attends every
form of qualified identification available to the general
public. Op. 140. Texas tells the Court that any number of
incidental costs are associated with voting. But the cost at
issue here is one deliberately imposed by the State. Even
at $2, the toll is at odds with this Court’s precedent. See
6 VEASEY v. PERRY
GINSBURG, J., dissenting
Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966).
And for some voters, the imposition is not small. A voter
whose birth certificate lists her maiden name or misstates
her date of birth may be charged $37 for the amended
certificate she needs to obtain a qualifying ID. Texas
voters born in other States may be required to pay sub-
stantially more than that. Op. 71–74.
The potential magnitude of racially discriminatory voter
disenfranchisement counseled hesitation before disturbing
the District Court’s findings and final judgment. Senate
Bill 14 may prevent more than 600,000 registered Texas
voters (about 4.5% of all registered voters) from voting in
person for lack of compliant identification. Id., at 50–51,
54. A sharply disproportionate percentage of those voters
are African-American or Hispanic. Ibid.
Unsurprisingly, Senate Bill 14 did not survive federal
preclearance under §5 of the Voting Rights Act. A three-
judge District Court unanimously determined that the law
would have a prohibited discriminatory effect on minority
voters. See Texas v. Holder, 888 F. Supp. 2d 113, 115, 138
(DC 2012) (Tatel, J.). Although this Court vacated the
preclearance denial in light of Shelby County v. Holder,
570 U. S. ___ (2013), racial discrimination in elections in
Texas is no mere historical artifact. To the contrary,
Texas has been found in violation of the Voting Rights Act
in every redistricting cycle from and after 1970. Op. 7.
See, e.g., Texas v. United States, 887 F. Supp. 2d 133 (DC
2012) (Griffith, J.). The District Court noted particularly
plaintiffs’ evidence—largely unchallenged by Texas—
regarding the State’s long history of official discrimination
in voting, the statewide existence of racially polarized
voting, the incidence of overtly racial political campaigns,
the disproportionate lack of minority elected officials, and
the failure of elected officials to respond to the concerns of
minority voters. Op. 3–13, 122–126, 144–147.
The greatest threat to public confidence in elections in
Cite as: 574 U. S. ____ (2014) 7
GINSBURG, J., dissenting
this case is the prospect of enforcing a purposefully dis-
criminatory law, one that likely imposes an unconstitu-
tional poll tax and risks denying the right to vote to hun-
dreds of thousands of eligible voters. To prevent that
disenfranchisement, I would vacate the Fifth Circuit’s stay
of the permanent injunction ordered by the District Court.