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.