Both cases raise issues of critical importance with respect to the nature and scope of remedial plans following invalidation of the most restrictive voter ID legislation in the country and on the heels of a judicial finding that a state has racially gerrymandered legislative districts. Both cases may ultimately entail invocation of the “pocket trigger” of Section 3 of the Voting Rights Act, effectively bringing the Lone Star State back under the requirement of preclearance that was effectively immobilized in 2013 in Shelby County v. Holder. And in both cases, the Trump Justice Department has stepped into this legal maelstrom to take a legal position diametrically opposed to its predecessor.

Perez v. Abbott

Perez v. Abbott, a redistricting battle begun in 2011, addressed the question whether Texas’s redistricting plan was unconstitutional, whether the state legislature had engaged in racial gerrymandering, and whether the plan violated established principles of vote dilution under Section 2 of the Voting Rights Act. The state was charged with not making a good faith effort to maintain population equality and with treating inmates as residents of counties in which they are incarcerated. In an opinion by Fifth Circuit Judge Smith, Chief District Judge Garcia, and District Judge Rodriguez of the Western District of Texas, the three-judge district court on March 10, 2017, held two congressional districts constituted racial gerrymanders, found intentional discrimination constituting vote dilution in the drawing of state House of Representatives districts, and entered its orders on the various plans before it, C235 (order accessible at http://moritzlaw.osu.edu/electionlaw/litigation/documents/Perez-OrderOnPlan081517.pdf) and H358 (order accessible at http://moritzlaw.osu.edu/electionlaw/litigation/documents/Perez-OrderOnH358-082417.pdf).

The state filed an Emergency Application for Stay in the U.S. Supreme Court on August 25, 2017, arguing that (1) the three-judge district court’s invalidation of Texas’s two congressional districts and requiring the parties to confer and appear on September 5, 2017, for remedial map redrawing proceedings should be stayed pending appeal of the order and any final judgment on all claims, (2) the Supreme Court should issue an injunction making clear that, whatever the final disposition of the challenge to the subject redistricting maps on the merits (and whatever relief may ultimately be appropriate for subsequent elections), the 2018 elections should take place under the 2013 maps, and (3) after granting a stay or an injunction, the Supreme Court should convert this application into a jurisdictional statement, note probable jurisdiction, and reverse the district court’s holding that the two congressional districts were invalid. Justice Samuel A. Alito Jr. entered an Order Granting Stay on August 28, 2017.

Veasey v. Abbott

In Veasey v. Abbott, District Judge Nelva Gonzales Ramos of the Southern District of Texas addressed the most restrictive voter ID law in the nation and initially found in October 2014 that the Texas Photo ID law (SB 14) had an impermissible discriminatory effect against Hispanics and African-Americans and was passed with a discriminatory purpose in violation of Section 2 of the Voting Rights Act and the 14th and 15th Amendments to the United States Constitution. Veasey v. Perry, 71 F. Supp. 3d 627 (S.D. Tex. 2014) (Veasey I). The Fifth Circuit, sitting en banc, affirmed the discriminatory effect claim and remanded the discriminatory purpose claim for reconsideration. Veasey v. Abbott, 830 F.3d 216, 241 (5th Cir. 2016) (en banc) (Veasey II).

The Fifth Circuit further instructed the district court to issue an interim remedy to eliminate or reduce the discriminatory effects of SB 14 for the 2016 general election and any other elections to take place before final disposition. The interim remedy was to include a requirement that those in possession of qualifying SB 14 ID produce it before voting in person. Veasey II, 830 F.3d at 271. The parties presented an agreed interim order that required prospective voters with SB 14 ID to show it and provided a Declaration of Reasonable Impediment (DRI) process for those who did not. Qualified voters who did not have SB 14 ID were required, under penalty of perjury, to state that he or she did not have qualified ID and was then required to check a box to indicate the reason, including a box for “other,” with a line for the “other” explanation. On completing the DRI, the individual was permitted to vote a regular ballot. The voter’s reason could not be questioned. Following entry of this interim order, the Texas Legislature enacted SB 5 in an effort to ameliorate the alleged constitutional infirmities of SB 14 and hopefully to avoid a finding of purposeful discrimination.

The district court approved the interim order as a stop-gap measure instituted with an imminent general election, including a U.S. presidential contest, less than three months away. On remand, the district court again found that SB 14 was passed with a discriminatory purpose, and the plaintiffs asserted that they were now entitled to a remedy under Section 2 of the Voting Rights Act. VRA § 2. The district court held that the Texas Legislature’s subsequent action in passing SB 5—after years of litigation to defend SB 14—did not govern a finding of intent with respect to the previous enactment and that “[e]ven if such a turning back of the clock were possible, the provisions of SB 5 fall far short of mitigating the discriminatory provisions of SB 14.” Along with continued provisions that contribute to the discriminatory effects of the photo ID law, SB 5 on its face embodies some of the indicia of discriminatory purpose—particularly for the enhancement of the threat of prosecution for perjury regarding a crime unrelated to the stated purpose of preventing in-person voter impersonation fraud.

Denying the state’s motion to reconsider the discriminatory purpose finding, the district court found that SB 5 did not negate SB 14’s discriminatory purpose. In the remedial phase of this protracted litigation, the private plaintiffs requested remedies and a declaratory judgment that SB 14 was passed with a discriminatory purpose and engendered a discriminatory result in violation of the Voting Rights Act and the United States Constitution; injunctive relief in the form of a prohibition against the enforcement of SB 14 and SB 5; and retention of jurisdiction. The United States, following the inauguration of Donald Trump as President, reversed its litigation position from that of the pre-Trump Justice Department and asked the district court to deny injunctive relief on the basis that SB 5 constituted an adequate remedy for any violation of law that SB 14 presented and opposed retention of jurisdiction on the basis that there is nothing further for the district court to monitor or review.

In its Brief Regarding Remedies, the Trump Justice Department stated that the United States had “filed its complaint in this case to ensure that Texas’s voter ID law comports with “Section 2 of the Voting Rights Act” and the Constitution and preserves the rights of all Texas voters to free and fair elections, and “[t]hat result has now been achieved, as the Texas Legislature has accepted the en banc Fifth Circuit’s invitation to adopt a legislative remedy “to cure the infirmities” that this court found in Texas’s 2011 voter ID statute, S.B. 14. Veasey II, 830 F.3d at 269.

Aside from this about-face by the DOJ, the issue of Section 3 remedies was reserved for later briefing and decision.

The district court thereupon granted declaratory and injunctive relief, finding that “SB 5 does not meaningfully expand the types of photo IDs that can qualify, even though the Court was clearly critical of Texas having the most restrictive list in the country.” For example, Texas still did not permit federal or Texas state government photo IDs—even those it issues to its own employees. Although SB 5 permitted the use of the free voter registration card mailed to each registered voter and other forms of nonphoto ID, it did so only through the use of a Declaration of Reasonable Impediment (DRI). Prospective voters who lacked an SB 14 photo ID were subjected to separate voting obstacles and procedures, and SB 5’s methodology remained discriminatory because it imposed burdens disproportionately on Blacks and Latinos.

The district court ultimately concluded that SB 5 was insufficient to remedy the discriminatory purpose and effects of SB 14’s alternative proof requirements. Unlike the interim order, SB 5 included requirements that went beyond the stated purpose of the statute, “to prevent in-person voter impersonation fraud,” and appeared to be efforts at voter intimidation. Specifically, according to the court,

when a person signs the DRI prescribed by SB 5, that person first attests to being a particular registered voter on the Secretary of State’s list. The DRI then inquires into why that registered voter does not have one of the limited forms of photo ID the state is willing to accept. Nothing in the record explains why the state needs to know that a person suffers a particular impediment to obtaining one of the qualified IDs. The impediments do not address whether the persons are who they say they are and the impediments are not being used to assist in obtaining qualified ID. There is no legitimate reason in the record to require voters to state such impediments under penalty of perjury and no authority for accepting this as a way to render an unconstitutional requirement constitutional. Requiring a voter to address more issues than necessary under penalty of perjury and enhancing that threat by making the crime a state jail felony appear to be efforts at voter intimidation.

The district court ordered the parties to confer and file on or before August 31, 2017, memoranda stating whether an evidentiary hearing is requested for the consideration of VRA § 3(c) relief and the preferred briefing schedule for same. (Order accessible at http://moritzlaw.osu.edu/electionlaw/litigation/documents/Veasey-OrderGrantingSection2Remedies082317.pdf).

The State of Texas filed a notice of appeal on August 23, 2017.

To Be Continued

An interesting twist to the Texas litigation as it winds its way to the Supreme Court is that several election cases are queing up for oral argument, including Gill v. Whitford, arising in Wisconsin and providing what may be the vehicle for the Court to enunciate a manageable, judicially feasible standard for adjudicating political gerrymandering claims; and A. Philip Randolph Institute and NEOCH v. Husted, arising in Ohio and raising the question of whether Ohio’s removal of eligible voters from its voter-registration rolls, as a result of those voters’ decisions not to participate in recent elections, violates the roll-maintenance provisions of the National Voter Registration Act and caused eligible Ohio citizens to be deprived of the right to vote. Late last term the Supreme Court handed down Bethune-Hill v. Virginia State Board of Elections, 137 S. Ct. 788 (2017), leaving intact a lower court ruling that Virginia’s 2012 congressional redistricting plan constituted unconstitutional racial gerrymandering. The October 2017 term will be one for the election law books.