Veasey et al v. Abbott et al

Filing 1023

ORDER ON CLAIM OF DISCRIMINATORY PURPOSE. (Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
MARC VEASEY, et al,
Plaintiffs,
VS.
GREG ABBOTT, et al,
Defendants.

April 10, 2017
David J. Bradley, Clerk

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§ CIVIL ACTION NO. 2:13-CV-193
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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.
To test that theory, and because “it is not an appellate court’s place to weigh
evidence,”3 the Court remanded the matter to this Court. This Court is thus charged with
reexamining the probative evidence underlying Plaintiffs’ discriminatory purpose claims
weighed against the contrary evidence, in accord with the appropriate legal standards the
1

Texas Senate Bill 14, Act of May 16, 2011, 82d Leg., R.S., ch. 123, 2011 Tex. Gen. Laws 619.

2

Veasey v. Perry, 71 F.Supp.3d 627, 633 (S.D. Tex. 2014).

3

Veasey II, at 241 (citing Price v. Austin Indep. Sch. Dist., 945 F.2d 1307, 1317 (5th Cir. 1991)).

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Fifth Circuit has described. Veasey II, at 242. The Fifth Circuit instructed that this Court
was not to reopen the evidence, but to rely on the record developed at the bench trial of
this case, held in September 2014. Veasey II, at 242.
Consistent with those instructions, the Court permitted the parties to propose new
findings of fact and conclusions of law and re-brief the issue. See D.E. 960, 961, 962,
963, 965, 966, 975, 976, 977, 979, 980. On February 28, 2017, the Court heard oral
argument. After appropriate reconsideration and review of the record, and for the reasons
set out below, the Court holds that Plaintiffs have sustained their burden of proof to show
that SB 14 was passed, at least in part, with a discriminatory intent in violation of the
Voting Rights Act of 1965 § 2, 52 U.S.C. § 10301(a).
STANDARD OF REVIEW
The rubric for the question—whether SB 14 was passed with a discriminatory
purpose—was set out in the Supreme Court’s decision, Village of Arlington Heights v.
Metropolitan Housing Development Corp., 429 U.S. 252, 265-68 (1977). Veasey II, at
230. Under Arlington Heights, discriminatory intent is shown when racial discrimination
was a motivating factor in the governing body’s decision.

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,’. . . its adverse effects upon an identifiable group.” Personnel Adm’r of
Mass. v. Feeney, 442 U.S. 256, 279 (1979) (internal citations and footnotes omitted).
Racial discrimination need not be the primary purpose as long as it is one purpose.
Velasquez v. City of Abilene, 725 F.2d 1017, 1022 (5th Cir. 1984).
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Rather than attempt to discern the motivations of particular legislators, the Court
considers all available direct and circumstantial evidence of intent, “including the normal
inferences to be drawn from the foreseeability of defendant’s actions.” United States v.
Brown, 561 F.3d 420, 433 (5th Cir. 2009) (internal quotation marks and citations
omitted). The Supreme Court in Arlington Heights considered the following factors as
informing the intent decision:
(1)

The disparate impact of the legislation;

(2)

Whether there is a clear 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;

(3)

The historical background of the decision;

(4)

Whether the decision departs from normal procedural practices;

(5)

Whether the decision departs from normal substantive concerns of the
legislature, such as whether the policy justifications line up with the
terms of the law or where that policy-law relationship is tenuous; and

(6)

Contemporaneous statements by the decisionmakers and in meeting
minutes and reports.4

Arlington Heights, supra at 266 (paraphrased). If Plaintiffs’ evidence establishes that
discriminatory purpose was at least one of the substantial or motivating factors behind
passage of SB 14, “the burden shifts to the law’s defenders to demonstrate that the law
4

This includes the legislative drafting history, which can offer interpretive insight when the legislative body
rejected language or provisions that would have achieved the results sought in Plaintiffs’ interest. See Hamdan v.
Rumsfeld, 548 U.S. 557, 579-80 (2006).

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would have been enacted without this factor.” Hunter v. Underwood, 471 U.S. 222, 228
(1985).
DISCUSSION
1. Disparate Impact
This Court found that SB 14 had a discriminatory impact, supporting Plaintiffs’
results claim under Section 2. Veasey v. Perry, 71 F. Supp. 3d 627, 659-79 (S.D. Tex.
2014) (Veasey I). With one exception,5 the related findings in part IV(B) and conclusions
in part VI(B)(1) were undisturbed on appeal and the Fifth Circuit affirmed the
discriminatory result claim. Veasey II, at 264-65. Without setting forth the associated
findings at length, this Court adopts its prior findings and conclusions, with the exception
of those related to the potential effect of racial appeals in political campaigns. Plaintiffs
have satisfied the disparate impact factor of the discriminatory purpose analysis.
2. Pattern Unexplainable on Non-Racial Grounds
In parts IV(A)(4) and (5) of this Court’s prior opinion, it detailed a number of
efforts, which the Texas legislature rejected, that would have softened the racial impact
of SB 14. Veasey I, at 651-53 & Appendix. For instance, amendments were proposed to
allow additional types of photo identification, a more liberal policy on expired
documents, easier voter registration procedures, reduced costs for obtaining necessary ID,
and more voter education regarding the requirements. At the same time, there was no
substance to the justifications offered for the draconian terms of SB 14, noted in part
5

The Fifth Circuit did not overturn the fact finding, but held that anecdotal evidence of racial campaign appeals did
not necessarily show that SB 14 abridged the right to vote. Veasey II, at 261. On remand, this Court assigns no
weight to that anecdotal evidence.

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IV(A)(6) of the opinion. Veasey I, at 653-59. This Court then concluded, in part VI(B)
of the opinion, that these efforts revealed a pattern of conduct unexplainable on nonracial grounds, to suppress minority voting. Veasey I, at 694-703.
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.
3. Historical Background
In discussing SB 14’s historical background for purposes of the discriminatory
intent analysis, this Court included a prefatory sentence referencing Texas’s long history
of discriminatory practices, which was set out in a separate section of the opinion.
Veasey I, at 700. The Court’s reference was for context only. Treated as only providing

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perspective, the Court did not, and does not, assign distant history any weight in the
discriminatory purpose analysis.
With respect to the question at hand, the Fifth Circuit held that historical evidence,
to be relevant, must be “reasonably contemporaneous.”

Veasey II, at 232 (citing

McCleskey v. Kemp, 481 U.S. 279, 298 n.20 (1987) and Shelby Cty. v. Holder, ___ U.S.
___, 133 S.Ct. 2612, 2618-19 (2013). The evidence upon which the Court previously
relied dated from 2000 forward. Veasey I, at 700 (part VI(B)(2)(Historical Background)).
Included was the contemporary seismic demographic shift by which Texas had become a
majority-minority state and polarized voting patterns allowing the suppression of the
overwhelmingly Democratic votes of African–Americans and Latinos to provide an
Anglo partisan advantage. The Fifth Circuit found no fault with this evidence and this
Court adopts these findings anew.
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.

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Veasey II, at 239-40 (citations and footnotes omitted). The Court recognizes that the
Fifth Circuit credits this evidence in the discriminatory purpose calculus whereas this
Court had not previously done so. While this Court now also credits this evidence, the
weight assigned to it is not outcome-determinative here.
Consistent with the Fifth Circuit opinion, in re-weighing this issue, the Court
confirms that it does not rely on the evidence of Waller County officials’ efforts to
suppress minority votes and the redistricting cases for the discriminatory purpose
analysis.

The Court finds that reasonably contemporaneous history supports a

discriminatory purpose finding.
4. Departures From Normal Practices
In part IV(A) of its prior opinion, this Court detailed the extraordinary procedural
tactics used to rush SB 14 through the legislative process without the usual committee
analysis, debate, and substantive consideration of amendments. Veasey I, at 645-53. The
Fifth Circuit agreed that the Court can credit these “virtually unprecedented” radical
departures from normal practices. Veasey II, at 238. Without setting forth the associated
findings at length, this Court adopts its prior findings and conclusions with respect to the
factor addressing departures from normal practices.
5. Legislative Drafting History
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
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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. See generally, Veasey I, at 641, 65355.
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.

These and other similar issues were

detailed by this Court in parts III(B) and IV(A)(4) of its previous opinion, along with the
Appendix. Veasey I, at 642-45, 651-52 & Appendix.
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
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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.
The Fifth Circuit approved of the consideration of the tenuousness of the
relationship between the legislature’s policies and SB 14’s terms. It also found the fiscal
note issue relevant. And the Court is permitted to credit evidence of pretext. Veasey II,
at 237-41. The Court thus adopts its previous findings and conclusions with respect to
the legislative drafting history. Veasey I, at 701-02.
6. Contemporaneous statements
In part VI(B)(2)(Contemporaneous Statements), this Court discussed the evidence
offered regarding legislator observations of the political and legislative environment at
the time SB 14 was passed. Veasey I, at 702. The Fifth Circuit found much of this
undisputed and unchallenged evidence to be infirm as speculative, not statistically
significant, or not probative of legislator sentiment. Veasey II, at 233-34. Thus this
Court assigns no weight to the evidence previously discussed, except for Senator Fraser,
an author of SB 14, stating that the Voting Rights Act had outlived its useful life and the
fact that the legislature failed to adopt ameliorative measures without explanation, which
was shown to be out of character with sponsors of major bills. See Veasey II, at 236-37
(approving of the consideration of this evidence). While crediting this evidence, the
Court assigns it little weight.
CONCLUSION
Because the Fifth Circuit found that some of the evidence in this case was not
probative of a discriminatory purpose in the Texas Legislature’s enactment of SB 14, this
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Court was tasked with re-examining its conclusion on the discriminatory purpose issue.
Upon reconsideration and a re-weighing of the evidence in conformity with the Fifth
Circuit’s opinion, the Court holds that the evidence found “infirm” did not tip the scales.
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.
ORDERED this 10th day of April, 2017.
___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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