Marc Veasey v. Greg Abbott

Case: 14-41127 Document: 00513601530 Page: 1 Date Filed: 07/20/2016

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

July 20, 2016

No. 14-41127

Lyle W. Cayce

Clerk

MARC VEASEY; JANE HAMILTON; SERGIO DELEON; FLOYD CARRIER;

ANNA BURNS; MICHAEL MONTEZ; PENNY POPE; OSCAR ORTIZ; KOBY

OZIAS; LEAGUE OF UNITED LATIN AMERICAN CITIZENS; JOHN

MELLOR-CRUMMEY, KEN GANDY; GORDON BENJAMIN, EVELYN

BRICKNER,

Plaintiffs – Appellees

TEXAS ASSOCIATION OF HISPANIC COUNTY JUDGES AND COUNTY

COMMISSIONERS,

Intervenor Plaintiffs – Appellees

v.

GREG ABBOTT, in his Official Capacity as Governor of Texas; CARLOS

CASCOS, Texas Secretary of State; STATE OF TEXAS; STEVE MCCRAW,

in his Official Capacity as Director of the Texas Department of Public Safety,

Defendants – Appellants

************************************************************************

UNITED STATES OF AMERICA,

Plaintiff – Appellee

TEXAS LEAGUE OF YOUNG VOTERS EDUCATION FUND; IMANI

CLARK,

Intervenor Plaintiffs – Appellees

v.

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No. 14-41127

STATE OF TEXAS; CARLOS CASCOS, Texas Secretary of State; STEVE

MCCRAW, in his Official Capacity as Director of the Texas Department of

Public Safety,

Defendants – Appellants

************************************************************************

TEXAS STATE CONFERENCE OF NAACP BRANCHES; MEXICAN

AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF

REPRESENTATIVES,

Plaintiffs – Appellees

v.

CARLOS CASCOS, Texas Secretary of State; STEVE MCCRAW, in his

Official Capacity as Director of the Texas Department of Public Safety,

Defendants – Appellants

************************************************************************

LENARD TAYLOR; EULALIO MENDEZ, JR.; LIONEL ESTRADA; ESTELA

GARCIA ESPINOSA; MARGARITO MARTINEZ LARA; MAXIMINA

MARTINEZ LARA; LA UNION DEL PUEBLO ENTERO, INCORPORATED,

Plaintiffs – Appellees

v.

STATE OF TEXAS; CARLOS CASCOS, Texas Secretary of State; STEVE

MCCRAW, in his Official Capacity as Director of the Texas Department of

Public Safety,

Defendants – Appellants

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No. 14-41127

Appeal from the United States District Court

for the Southern District of Texas

Before STEWART, Chief Judge, and JOLLY, DAVIS, JONES, SMITH,

DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES,

GRAVES, HIGGINSON, and COSTA, Circuit Judges.

HAYNES, Circuit Judge, joined by STEWART, Chief Judge, and DAVIS,

PRADO, SOUTHWICK, GRAVES, and HIGGINSON, Circuit Judges, in full;

DENNIS and COSTA, Circuit Judges, joining in all but Part II.A.1 and

concurring in the judgment. 1

In 2011, Texas (“the State”) passed Senate Bill 14 (“SB 14”), which

requires individuals to present one of several forms of photo identification in

order to vote. See Act of May 16, 2011, 82d Leg., R.S., ch. 123, 2011 Tex. Gen.

Laws 619. Plaintiffs filed suit challenging the constitutionality and legality of

the law. The district court held that SB 14 was enacted with a racially

discriminatory purpose, has a racially discriminatory effect, is a poll tax, and

unconstitutionally burdens the right to vote. See Veasey v. Perry, 71 F. Supp.

3d 627, 633 (S.D. Tex. 2014). The State appealed from that decision, and a

panel of our court affirmed in part, vacated in part, and remanded the case for

further findings. See Veasey v. Abbott, 796 F.3d 487, 493 (5th Cir. 2015), reh’g

en banc granted, 815 F.3d 958 (5th Cir. 2016). The State filed a petition for

this court to rehear the case en banc, which we granted.

1 Part II.A.1 as written represents the opinion of a plurality of the court. However, a

majority of the court agrees that there are infirmities in the district court’s opinion regarding

Plaintiffs’ discriminatory purpose claim, requiring reversal of the district court’s judgment

that SB 14 was passed with a racially discriminatory purpose. A majority of the court also

agrees that, given the court’s decision to reverse the district court’s judgment as to this claim,

the court should remand to the district court with instructions to reweigh the evidence in

light of this opinion.

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I. Background

A. Senate Bill 14

Prior to the implementation of SB 14, a Texas voter could cast a ballot in

person by presenting a registration certificate—a document mailed to voters

upon registration. TEX. ELEC. CODE §§ 13.142, 63.001(b) (West 2010). Voters

appearing without the certificate could cast a ballot by signing an affidavit and

presenting one of multiple forms of identification (“ID”), including a current or

expired driver’s license, a photo ID (including employee or student IDs), a

utility bill, a bank statement, a paycheck, a government document showing the

voter’s name and address, or mail addressed to the voter from a government

agency. Id. §§ 63.001, 63.0101 (West 2010).

With the implementation of SB 14, Texas began requiring voters to

present certain specific forms of identification at the polls. These include: (1) a

Texas driver’s license or personal identification card issued by the Department

of Public Safety (“DPS”) that has not been expired for more than 60 days; (2) a

U.S. military identification card with a photograph that has not been expired

for more than 60 days; (3) a U.S. citizenship certificate with a photo; (4) a U.S.

passport that has not been expired for more than 60 days; (5) a license to carry

a concealed handgun issued by DPS that has not been expired for more than

60 days; or (6) an Election Identification Certificate (“EIC”) issued by DPS that

has not been expired for more than 60 days. 2 TEX. ELEC. CODE § 63.0101 (West

Supp. 2014). 3

2 We refer to these required forms of identification under SB 14 as “SB 14 ID.”

3 SB 14 also requires the name on the photo ID to be “substantially similar” to the

voter’s registered name. TEX. ELEC. CODE § 63.001(c) (West Supp. 2014). If the names are

not identical but are substantially similar, the voter must sign an affidavit that the voter and

the registered voter are one and the same. Id. If the names are not substantially similar,

the voter may submit a provisional ballot and within six days must go to the county registrar

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SB 14 states that DPS “may not collect a fee for an [EIC] or a duplicate

[EIC],” TEX. TRANSP. CODE § 521A.001(b) (West 2013), and allows DPS to

promulgate rules for obtaining an EIC, id. § 521A.001(f); § 521.142. To receive

an EIC, DPS rules require a registered voter to present either: (A) one form of

primary ID, (B) two forms of secondary ID, or (C) one form of secondary ID and

two pieces of supporting identification. 37 TEX. ADMIN. CODE § 15.182(1).

Thus, any application for an EIC requires either one Texas driver’s license or

personal identification card that has been expired for less than two years, or

one of the following documents, accompanied by two forms of supporting

identification: (1) an original or certified copy of a birth certificate from the

appropriate state agency; (2) an original or certified copy of a United States

Department of State Certification of Birth for a U.S. citizen born abroad;

(3) U.S. citizenship or naturalization papers without a photo; or (4) an original

or certified copy of a court order containing the person’s name and date of birth

and indicating an official change of name and/or gender. Id. § 15.182(3). 4

Before May 27, 2015, a statutory provision distinct from SB 14 imposed

a $2 or $3 fee for a certified copy of a birth certificate. 5 TEX. HEALTH & SAFETY

with additional ID to verify his or her identity. Id. §§ 63.001(g), 63.011, 65.0541(a) (West

Supp. 2014).

4 Among the forms of supporting identification are: voter registration cards, school

records, insurance policies that are at least two years old, identification cards or driver’s

licenses issued by another state that have not been expired for more than two years, Texas

vehicle or boat titles or registrations, military records, Social Security cards, W-2 forms,

expired Texas driver’s licenses, government agency ID cards, unexpired military dependent

identification cards, Texas or federal parole or mandatory release forms, federal inmate ID

cards, Medicare or Medicaid cards, immunization records, tribal membership cards from

federally recognized tribes, and Veteran’s Administration cards. 37 TEX. ADMIN. CODE

§ 15.182(4).

5 The Department of State Health Services (“DSHS”) waived most of the fees for

obtaining a birth certificate to get an EIC, but this provision separately required the Bureau

of Vital Statistics, local registrars, and county clerks to collect a $2 fee for the issuance of a

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CODE § 191.0045 (West 2010). As discussed below, after the district court

issued its judgment and the panel conducted oral argument in this case, the

Texas Legislature passed Senate Bill 983 during the 2015 legislative session

and eliminated this fee.

Persons who have a disability are exempt from SB 14’s photo ID

requirement if they are able to provide the voter registrar with documentation

of their disability from the U.S. Social Security Administration or Department

of Veterans Affairs. TEX. ELEC. CODE § 13.002(i) (West Supp. 2014). Other

persons may vote by provisional ballot without a photo ID if they file affidavits

either asserting a religious objection to being photographed or asserting that

their SB 14 ID was lost or destroyed as a result of a natural disaster occurring

within 45 days of casting a ballot. Id. § 65.054. Additionally, voters who will

be 65 or older as of the date of the election may vote early by mail. Id. § 82.003.

If a voter is unable to provide SB 14 ID at the poll, the voter can cast a

provisional ballot after executing an affidavit stating that the voter is

registered and eligible to vote. Id. § 63.001(a), (g). The vote counts if the voter

produces SB 14 ID to the county registrar within six days of the election. Id.

§ 65.0541.

SB 14 requires county registrars to inform applicants of the new voter

ID requirements when issuing voter registration certificates, id. § 15.005, and

requires both the Secretary of State and voter registrar of each county with a

website to post SB 14’s requirements online. Id. § 31.012(a). The

requirements must also be placed prominently at polling places. Id. § 62.016.

Additionally, the Secretary of State must “conduct a statewide effort to educate

certified copy of a birth certificate, and permitted local registrars and county clerks to impose

an additional $1 fee. TEX. HEALTH & SAFETY CODE § 191.0045(d), (e), (h) (West 2010).

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voters regarding the identification requirements for voting.” Id. § 31.012(b).

The district court found that SB 14 allocated a one-time expenditure of $2

million for voter education. 6 Veasey v. Perry, 71 F. Supp. 3d at 649.

B. Procedural History

The State began enforcing SB 14 on June 25, 2013. 7 The plaintiffs and

intervenors 8 (collectively, “Plaintiffs”) filed suit against Defendants to enjoin

enforcement of SB 14, and their suits were consolidated before one federal

district court in the Southern District of Texas. See Veasey v. Perry, 71 F. Supp.

3d at 632. Plaintiffs claim that SB 14’s photo identification requirements

violate the Fourteenth and Fifteenth Amendments to the United States

Constitution and Section 2 of the Voting Rights Act because SB 14 was enacted

with a racially discriminatory purpose and has a racially discriminatory effect.

Plaintiffs also claim that SB 14’s photo ID requirement places a substantial

6The district court also found that one-quarter of the $2 million was earmarked to

research what type of voter education was needed. Veasey v. Perry, 71 F. Supp. 3d at 649.

7 A three-judge district court declined to grant judicial preclearance to override the

United States Attorney General’s denial of preclearance. See Texas v. Holder, 888 F. Supp.

2d 113, 144–45 (D.D.C. 2012), vacated and remanded, 133 S. Ct. 2886 (2013). The Supreme

Court vacated and remanded this decision when it issued Shelby County v. Holder, 133 S. Ct.

2612 (2013), which held unconstitutional the coverage formula in Section 4(b) used to

determine which jurisdictions were subject to the preclearance requirement in Section 5 of

the Voting Rights Act. Thereafter, Texas began enforcing SB 14.

8 Plaintiff-Intervenor Texas League of Young Voters Education Fund (the “Texas

League”) was non-operational when the panel opinion was issued and remained so at least

at the time the supplemental en banc briefs were filed in this case. “A claim becomes moot

when ‘the parties lack a legally cognizable interest in the outcome.’” Nat’l Rifle Ass’n of Am.,

Inc. v. McCraw, 719 F.3d 338, 344 n.3 (5th Cir. 2013) (quoting Powell v. McCormack, 395

U.S. 486, 496 (1969)). The Texas League argues that it nonetheless has standing because

many of the Texas voters whose inability to obtain SB 14 ID gave rise to the Texas League’s

standing remain disenfranchised by SB 14. Because other Plaintiffs have standing to

challenge SB 14 and because the court’s remedy will reach all voters who do not have or

cannot reasonably obtain SB 14 ID (regardless of their membership in the Texas League), we

need not separately address the Texas League’s standing. See Nat’l Rifle Ass’n, 719 F.3d at

344 n.3 (“Only one of the petitioners needs to have standing to permit us to consider the

petition for review.”).

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burden on the fundamental right to vote under the First and Fourteenth

Amendments, and constitutes a poll tax under the Fourteenth and Twenty-

Fourth Amendments. The State defends SB 14 as a constitutional requirement

imposed to prevent in-person voter fraud and increase voter confidence and

turnout.

The district court conducted a nine-day bench trial at which dozens of

expert and lay witnesses testified by deposition or in person. Following that

bench trial, the district court issued a lengthy and comprehensive opinion

holding:

SB 14 creates an unconstitutional burden on the right to vote

[under the First and Fourteenth Amendments], has an

impermissible discriminatory effect against Hispanics and

African–Americans [under Section 2 of the Voting Rights Act], and

was imposed with an unconstitutional discriminatory purpose [in

violation of the Fourteenth and Fifteenth Amendments and

Section 2]. [Furthermore,] SB 14 constitutes an unconstitutional

poll tax [under the Fourteenth and Twenty-Fourth Amendments].

Veasey v. Perry, 71 F. Supp. 3d at 633. Shortly before in-person early voting

was scheduled to begin for the November 2014 elections, the district court

“enter[ed] a permanent and final injunction against enforcement of the voter

identification provisions [of SB 14], Sections 1 through 15 and 17 through 22.” 9

Id. at 707 & n.583. Since it struck the State’s voter ID law so close to the

impending November 2014 election, the district court ordered the State to

“return to enforcing the voter identification requirements for in-person voting

9 The district court did not enjoin enforcement of sections 16, 23, and 24 in accordance

with SB 14’s severability clause. Sections 16 and 23 relate to increasing the penalties and

offense levels for election code violations. See TEX. ELEC. CODE § 64.012 historical note (West

2010 & Supp. 2014) [Act of May 16, 2011, 82d Leg., R.S., ch. 123, §§ 16, 23, 2011 Tex. Gen.

Laws 619, 623, 625]. Section 24 has expired, but once related to the purposes for which the

voter registrars could use certain funds disbursed under the election code. See Act of May

16, 2011, 82d Leg., R.S., ch. 123, § 24, 2011 Tex. Gen. Laws 619.

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in effect immediately prior to the enactment and implementation of SB 14.”

Id. at 707. The district court retained jurisdiction to review any remedial

legislation and to pre-approve any administrative remedial measures. Id. at

707–08.

In October 2014, the State appealed the district court’s final judgment,

and a panel of this court granted the State’s emergency motion for stay pending

appeal, grounding its decision primarily in “the importance of maintaining the

status quo on the eve of an election.” Veasey v. Perry, 769 F.3d 890, 895 (5th

Cir. 2014). Plaintiffs filed emergency motions before the Supreme Court,

seeking to have this court’s stay vacated. The Supreme Court denied these

motions to vacate the stay of the district court’s judgment. See Veasey v. Perry,

135 S. Ct. 9 (2014). Therefore, this court’s stay of the district court’s injunction

remained in place, and SB 14 continues to be enforced.

On May 27, 2015, after oral argument was heard by the panel that

initially considered this appeal, Senate Bill 983 (“SB 983”) was signed into law,

eliminating the fee “associated with searching for or providing a record,

including a certified copy of a birth record, if the applicant [for the record]

states that the applicant is requesting the record for the purpose of obtaining

an election identification certificate.” Act of May 25, 2015, 84th Leg., R.S., ch.

130, 2015 Tex. Sess. Laws Serv. Ch. 130 (codified as an amendment to TEX.

HEALTH & SAFETY CODE § 191.0046(e)) (hereinafter “SB 983”). SB 983 became

effective immediately. Id. §§ 2–3 (codified as note to TEX. HEALTH & SAFETY

CODE § 191.0046); see also S.J. of Tex., 84th Leg., R.S., 1449–50 (2015)

(reporting unanimous passage out of the Texas Senate); H.J. of Tex., 84th Leg.,

R.S., 4478–79 (2015) (reporting passage by 142 to 0, with one member absent,

in the Texas House). SB 983 provides that “a local registrar or county clerk

who issues a birth record” required for an EIC that would otherwise be entitled

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to collect a fee for that record “is entitled to payment of the amount from the

[D]epartment [of State Health Services].” Act of May 25, 2015, 84th Leg., R.S.,

ch. 130 (codified as an amendment to TEX. HEALTH & SAFETY CODE

§ 191.0046(f)). SB 983 did not appropriate funds to spread public awareness

about the free birth records. The parties addressed the potential effect of SB

983 on their claims before both the panel and our full court, and we have

accounted for its passage. 10

Considering the State’s appeal from the district court’s judgment, the

panel opinion held that the district court committed legal errors in conducting

its discriminatory purpose analysis; therefore, it vacated that portion of the

district court’s opinion and remanded the case for further proceedings. See

Veasey, 796 F.3d at 493, 498. Noting that the finding on remand might be

different, the panel opinion addressed the Plaintiffs’ other claims. Id. at 493.

It affirmed the district court’s finding that SB 14 has a discriminatory effect in

violation of Section 2 of the Voting Rights Act and remanded for consideration

of the proper remedy. Id. It vacated the district court’s holding that SB 14

constitutes a poll tax and rendered judgment on that claim for the State. Id.

Finally, the panel opinion vacated the district court’s determination that SB

10 The parties also filed Rule 28(j) letters before the panel that initially heard this

case. The parties noted the passage of SB 1934, effective on September 1, 2015, which

provides that state-issued identification cards issued to individuals age 60 and older expire

on a date to be specified by DPS. Act of May 29, 2015, 84th Leg., R.S., S.B. 1934 (codified as

an amendment to TEX. TRANSP. CODE § 521.101(f)(1)). Before this new law, ID cards for those

60 and older did not expire. 37 TEX. ADMIN. CODE § 15.30. While Plaintiffs contended before

the panel initially considering this case that SB 1934 will exacerbate the discriminatory effect

of SB 14, the State insisted SB 1934 was passed merely to comply with the federal REAL ID

Act. See 6 C.F.R. § 37.5(a). The panel opinion concluded that this issue is not yet ripe for our

review. See Texas v. United States, 523 U.S. 296, 300 (1998) (“A claim is not ripe for

adjudication if it rests upon contingent future events that may not occur as anticipated, or

indeed may not occur at all.” (citation omitted)). The parties have not raised this issue again

before our full court.

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14 violates the First and Fourteenth Amendments of the U.S. Constitution,

pursuant to the doctrine of constitutional avoidance, and dismissed those

claims. Id.

While this case was awaiting oral argument before our full court, in light

of the upcoming elections in November 2016, the parties applied to the

Supreme Court to vacate the stay of the district court’s injunction that a panel

of this court originally entered in October 2014. The Supreme Court denied

the motion to vacate the stay but noted that if, by July 20, 2016, this court had

“neither issued an opinion on the merits of the case nor issued an order

vacating or modifying the current stay order, an aggrieved party [could] seek

interim relief from th[e Supreme] Court by filing an appropriate application.”

Veasey v. Abbott, 136 S. Ct. 1823 (2016).

II. Section 2 of the Voting Rights Act

A. Discriminatory Purpose

The State appeals the district court’s holding that SB 14 was passed with

a discriminatory purpose in violation of the Fourteenth and Fifteenth

Amendments and Section 2 of the Voting Rights Act. We review this

determination for clear error. “If the district court’s findings are plausible in

light of the record viewed in its entirety, we must accept them, even though we

might have weighed the evidence differently if we had been sitting as a trier of

fact.” Price v. Austin Indep. Sch. Dist., 945 F.2d 1307, 1312 (5th Cir. 1991)

(citation omitted). However, when the district court’s “findings are infirm

because of an erroneous view of the law, a remand is the proper course unless

the record permits only one resolution of the factual issue,” Pullman-Standard

v. Swint, 456 U.S. 273, 292 (1982), in which case reversing and rendering is

the proper course, Meche v. Doucet, 777 F.3d 237, 246–47 (5th Cir.), cert.

denied, 136 S. Ct. 111 (2015).

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We apply the framework articulated in Village of Arlington Heights v.

Metropolitan Housing Development Corp., 429 U.S. 252, 265–68 (1977), to

determine whether SB 14 was passed with a discriminatory purpose. Although

the district court properly cited the Arlington Heights framework, we conclude

that some “findings are infirm,” necessitating a remand on this point.

Pullman-Standard, 456 U.S. at 292. Since the record does not “permit[] only

one resolution of the factual issue,” and there is evidence that could support

the district court’s finding of discriminatory purpose, we must remand for a re-

weighing of the evidence. 11 See id.

1. Legal Errors in the District Court’s Analysis

“Proof of racially discriminatory intent or purpose is required to show a

violation of the Equal Protection Clause.” Arlington Heights, 429 U.S. at 265.

However, “[r]acial discrimination need only be one purpose, and not even a

primary purpose,” of an official action for a violation to occur. United States v.

Brown, 561 F.3d 420, 433 (5th Cir. 2009) (citation omitted). “Legislative

motivation or intent is a paradigmatic fact question.” Prejean v. Foster, 227

F.3d 504, 509 (5th Cir. 2000) (citing Hunt v. Cromartie, 526 U.S. 541, 549

(1999)). “Proving the motivation behind official action is often a problematic

undertaking.” Hunter v. Underwood, 471 U.S. 222, 228 (1985).

11 One of the dissenting opinions suggests that the majority opinion flouts the canon

of constitutional avoidance by reaching the discriminatory purpose claim. We recognize the

canon of constitutional avoidance, and where possible, we have avoided reaching

constitutional claims unnecessarily, see infra Parts III and IV. However, we cannot avoid

ruling on the discriminatory intent claim here, where the remedy to which Plaintiffs would

be entitled for a discriminatory intent violation is potentially broader than the remedy the

district court may fashion for the discriminatory impact violation. See City of Richmond v.

United States, 422 U.S. 358, 378 (1975) (holding, in the discriminatory purpose context, that

“[a]n official action . . . taken for the purpose of discriminating . . . on account of . . . race has

no legitimacy at all”).

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In Arlington Heights, the Supreme Court set out five nonexhaustive

factors to determine whether a particular decision was made with a

discriminatory purpose, 12 and courts must perform a “sensitive inquiry into

such circumstantial and direct evidence of intent as may be available.” 13 See

429 U.S. at 266–68. “Those factors include: (1) the historical background of the

decision, (2) the specific sequence of events leading up to the decision,

(3) departures from the normal procedural sequence, (4) substantive

departures, and (5) legislative history, especially where there are

contemporary statements by members of the decision-making body.” Overton

12 The State argues that, instead of applying the Arlington Heights standard, we

should apply a “clearest proof” standard grafted from cases involving the determination of

whether a legislature meant to impose criminal punishment through a civil law when the

law faces an ex post facto challenge. See, e.g., Smith v. Doe, 538 U.S. 84, 92–93 (2003); Kansas

v. Hendricks, 521 U.S. 346, 360–61 (1997); Flemming v. Nestor, 363 U.S. 603, 613, 617–20

(1960). In those cases, courts deferred to legislatures’ categorizations of laws as “civil” except

upon “the clearest proof” that the laws were “so punitive either in purpose or effect as to

negate” the “civil” label. Hendricks, 521 U.S. at 361 (citation omitted). The Supreme Court

has not applied this standard in the voting rights context. See generally Arlington Heights,

429 U.S. 252; Hunter, 471 U.S. 222; cf. Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256 (1979);

Lodge v. Buxton, 639 F.2d 1358 (5th Cir. Unit B Mar. 1981). Instead, we have noted that

discriminatory intent in this context may be shown through circumstantial evidence, as

discriminatory motives are often “cleverly cloaked in the guise of propriety.” Lodge, 639 F.2d

at 1363. We decline to apply the State’s proposed standard in this context.

13 Neither Arlington Heights nor our decision in Price, 945 F.2d 1307, requires direct

evidence. The district court here allowed extensive discovery of legislative materials which

did not yield a “smoking gun.” The district court could have found, but was not required to

find, that this lack of a smoking gun supports the State’s position here. That was the

situation that we addressed in Price, and in that case we found no clear error in the district

court’s decisions about what evidence to credit. As the district court explained here, SB 14’s

proponents knew at the time that SB 14 would be subject to the preclearance requirement,

Veasey v. Perry, 71 F. Supp. 3d at 658, 701, so the lack of a smoking gun is not surprising.

The latter point makes it even more important that Price noted direct evidence would be

stronger than circumstantial evidence, but only “[t]o the extent that the justifications

advanced in [legislators’] testimon[ies] do not demonstrate a pretext for intentionally

discriminatory actions.” Price, 945 F.2d at 1318. As we note herein, we conclude there is

evidence that could support a finding that the Legislature’s justification of ballot integrity

was pretextual in relation to the specific, stringent provisions of SB 14.

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v. City of Austin, 871 F.2d 529, 540 (5th Cir. 1989) (citing Arlington Heights,

429 U.S. at 267–68). Legislators’ awareness of a disparate impact on a

protected group is not enough: the law must be passed because of that disparate

impact. Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979). The

challengers bear the burden to show that racial discrimination was a

“‘substantial’ or ‘motivating’ factor behind enactment of the law”; if they meet

that burden, “the burden shifts to the law’s defenders to demonstrate that the

law would have been enacted without this factor.” Hunter, 471 U.S. at 228

(citation omitted).

The State’s stated purpose in passing SB 14 centered on protection of the

sanctity of voting, avoiding voter fraud, and promoting public confidence in the

voting process. No one questions the legitimacy of these concerns as motives.

The disagreement centers on whether SB 14 was passed with impermissible

motives as well. We recognize that evaluating motive, particularly the motive

of dozens of people, is a difficult enterprise. We acknowledge the charged

nature of accusations of racism, particularly against a legislative body, but we

must also face the sad truth that racism continues to exist in our modern

American society despite years of laws designed to eradicate it. We appreciate

the district court’s efforts to address this difficult inquiry. Nonetheless, we

hold that much of the evidence upon which the district court relied was

“infirm.” See Pullman-Standard, 456 U.S. at 292.

One type of evidence on which the district court relied in seeking to

discern the Legislature’s intent was Texas’s history of enacting racially

discriminatory voting measures. See Veasey v. Perry, 71 F. Supp. 3d at 633–

36. It noted, for instance, Texas’s use of all-white primaries from 1895–1944,

literacy tests and secret ballots from 1905–1970, and poll taxes from 1902–

1966. Id. at 634–35. While the record also contains more contemporary

14

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examples, see id. at 635, 636 & n.23, the district court relied too heavily on the

evidence of State-sponsored discrimination dating back hundreds of years, cf.

Shelby Cty. v. Holder, 133 S. Ct. 2612, 2628 (2013) (noting that “history did not

end in 1965”).

“The historical background of the decision is one evidentiary source,

particularly if it reveals a series of official actions taken for invidious

purposes,” Arlington Heights, 429 U.S. at 267, but the Supreme Court has

cautioned that “unless historical evidence is reasonably contemporaneous with

the challenged decision, it has little probative value,” McCleskey v. Kemp, 481

U.S. 279, 298 n.20 (1987) (resolving that laws in force during and just after the

Civil War were not probative of the legislature’s intent many years later).

More recently, the Court in Shelby County also counseled against undue

reliance on noncontemporary evidence of discrimination in the voting rights

context. 133 S. Ct. at 2618–19, 2631 (striking down Section 4(b) of the Voting

Rights Act because “the conditions that originally justified these measures no

longer characterize voting in the covered jurisdictions”). In light of these cases,

the most relevant “historical” evidence is relatively recent history, not long-

past history. 14 We recognize that history provides context and that historical

discrimination (for example, in education) can have effects for many years.

But, given the case law we describe above and the specific issue in this case,

we conclude that the district court’s disproportionate reliance on long-ago

history was error.

14 “Relatively recent” does not mean immediately contemporaneous. Shelby County

emphasized that “things have changed” since the 1965 passage of the Voting Rights Act, 133

S. Ct. at 2625, but it did not articulate a particular time limit, see id. at 2625–27. Nor do we.

Suffice it to say the closer in time, the greater the relevance, while always recognizing that

history (even “long-ago history”) provides context to modern-day events.

15

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We also recognize that not all “history” was “long ago” and that there

were some more contemporary examples of discrimination identified by the

Plaintiffs in the district court. The evidence of relatively recent discrimination

cited by the district court is more probative of discriminatory intent. See, e.g.,

Veasey v. Perry, 71 F. Supp. 3d at 635, 636 & n.23. Nonetheless, several of the

relatively contemporary examples of discrimination identified by the district

court are limited in their probative value in connection with discerning the

Texas Legislature’s intent. For example, in a state with 254 counties, we do

not find the reprehensible actions of county officials in one county (Waller

County) to make voting more difficult for minorities to be probative of the

intent of legislators in the Texas Legislature, which consists of representatives

and senators from across a geographically vast, highly populous, and very

diverse state. See Miss. State Chapter, Operation Push, Inc. v. Mabus

(Operation Push), 932 F.2d 400, 409–10 (5th Cir. 1991) (stating that “[e]vidence

of disparate registration rates or similar registration rates in individual

counties could not provide dispositive support” for the claim that plaintiffs

could not participate in the political process at the state level (emphasis

added)).

Additionally, the district court relied on contemporary examples of

statewide discrimination evidenced by two redistricting cases that, taken

alone, form a thin basis for drawing conclusions regarding contemporary State-

sponsored discrimination. The first, Bush v. Vera, 517 U.S. 952, 976 (1996),

found that a Texas redistricting plan to create three majority-minority districts

violated the Equal Protection Clause of the Fourteenth Amendment because

race was the predominant factor, the plans ignored traditional redistricting

criteria, and their shapes could only be explained as the product of

unconstitutional racial gerrymandering. The second case found voter dilution

16

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affecting Hispanics in the redrawing of one congressional district. See League

of Latin Am. Citizens v. Perry (LULAC), 548 U.S. 399, 439–40 (2006). Although

citing discussions of the historic discrimination against Hispanics in Texas, the

Court did not base its decision on a conclusion that the legislature intentionally

discriminated based upon ethnicity. Id. at 440–42. Instead, it looked at

history as a context for the disenfranchisement of voters who had grown

disaffected with the Hispanic Congressman the legislature sought to protect

by its redrawing of the district. Id. at 438–41. The Court did not find any vote

dilution as to African Americans in the drawing of a different district. Id. at

444. Thus, these cases do not lend support for a finding of “relatively recent”

discrimination. 15

The district court’s reliance on post-enactment speculation by opponents

of SB 14 was also misplaced. Discerning the intent of a decisionmaking body

is difficult and problematic. Hunter, 471 U.S. at 228. To aid in this task,

courts may evaluate “contemporary statements by members of the

decisionmaking body, minutes of its meetings, or reports. In some

extraordinary instances the members might be called to the stand at trial to

testify concerning the purpose of the official action . . . .” Arlington Heights,

429 U.S. at 268. Where the court is asked to identify the intent of an entire

state legislature, as opposed to a smaller body, the charge becomes

proportionately more challenging. Hunter, 471 U.S. at 228. As United States

v. O’Brien explains:

15 Nonetheless, as discussed infra note 28, the Court’s conclusion in LULAC that

Texas’s 2003 redistricting plan violated the Voting Rights Act does evidence a history of

discrimination that is relevant to our discriminatory effect analysis, because historical

instances of discrimination continue to produce socioeconomic conditions that the district

court found contributed to the racial disparities in ID possession.

17

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Inquiries into congressional motives or purposes are a hazardous

matter. When the issue is simply the interpretation of legislation,

the Court will look to statements by legislators for guidance as to

the purpose of the legislature, because the benefit to sound

decision-making in this circumstance is thought sufficient to risk

the possibility of misreading Congress’ purpose. It is entirely a

different matter when we are asked to void a statute that is, under

well-settled criteria, constitutional on its face, on the basis of what

fewer than a handful of Congressmen said about it. What

motivates one legislator to make a speech about a statute is not

necessarily what motivates scores of others to enact it, and the

stakes are sufficiently high for us to eschew guesswork.

391 U.S. 367, 383–84 (1968) (footnote omitted).

To ascertain the Texas Legislature’s purpose in passing SB 14, the

district court mistakenly relied in part on speculation by the bill’s opponents

about proponents’ motives (rather than evidence of their statements and

actions). For instance, it credited the following: Representative Hernandez-

Luna’s simple assertion that two city council seats in Pasadena, Texas were

made into at-large seats “in order to dilute the Hispanic vote and

representation”; repeated testimony that the 2011 session was imbued with

anti-immigrant sentiment; 16 and testimony by the bill’s opponents that they

believed the law was passed with a discriminatory purpose. Veasey v. Perry,

71 F. Supp. 3d at 637, 655–57.

“The Supreme Court has . . . repeatedly cautioned—in the analogous

context of statutory construction—against placing too much emphasis on the

contemporaneous views of a bill’s opponents.” 17 Butts v. City of New York, 779

16 The relevance of this evidence apparently rests partially upon the unsupported

premise that a legislator concerned about border security or opposed to the entry into Texas

of undocumented immigrants is also necessarily in favor of suppressing voting by American

citizens of color.

17 Here, the problematic evidence is the speculation and conclusions of the opposing

legislators. We are not suggesting that the bill opponents lack credibility because they are

18

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F.2d 141, 147 (2d Cir. 1985) (citing, inter alia, Ernst & Ernst v. Hochfelder, 425

U.S. 185, 204 n.24 (1976)). We too have held that such statements are entitled

to “little weight.” Mercantile Tex. Corp. v. Bd. of Governors of Fed. Reserve

Sys., 638 F.2d 1255, 1263 (5th Cir. Unit A Feb. 1981). The Second Circuit

considered such speculation in Butts and held that “the speculations and

accusations of . . . [a] few opponents simply do not support an inference of the

kind of racial animus discussed in, for example, Arlington Heights.” 779 F.2d

at 147 (citation omitted). We agree and conclude that the district court erred

in relying on conjecture by the opponents of SB 14 as to the motivations of

those legislators supporting the law. 18

The district court also placed inappropriate reliance upon the type of

post-enactment testimony which courts routinely disregard as unreliable. See

Barber v. Thomas, 560 U.S. 474, 486 (2010) (“And whatever interpretive force

one attaches to legislative history, the Court normally gives little weight to

statements, such as those of the individual legislators, made after the bill in

question has become law.”); see also Edwards v. Aguillard, 482 U.S. 578, 596

n.19 (1987) (“The Court has previously found the post-enactment elucidation

of the meaning of a statute to be of little relevance in determining the intent of

the legislature contemporaneous to the passage of the statute.”). While

probative in theory, even those (after-the-fact) stray statements made by a few

opposing legislators, as credibility is a question for the trier of fact. Testimony found to be

credible from opponents of the bill about conduct and statements by proponents would be

highly probative. Our point is simply that speculation and conclusory accusations by

opposing legislators are not an appropriate foundation for a finding of purposeful

discrimination.

18 In the different but somewhat analogous realm of employment discrimination, we

have similarly rejected the plaintiff’s testimony that he or she believed that the motivation

of his or her employer was racial or other discrimination. See Byers v. Dall. Morning News,

Inc., 209 F.3d 419, 426–27 (5th Cir. 2000).

19

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individual legislators voting for SB 14 may not be the best indicia of the Texas

Legislature’s intent. See Operation Push, 932 F.2d at 408 (finding “isolated

and ambiguous statements made by . . . legislators” were not compelling

evidence of that law’s discriminatory purpose); Jones v. City of Lubbock, 727

F.2d 364, 371 n.3 (5th Cir. 1984) (refusing to “judge intent from the statements

[made by] . . . a single member” of the legislative body).

Because the district court relied upon evidence we conclude is infirm, the

district court’s opinion cannot stand as written. The next question, then, is

whether we reverse and render judgment for the State or remand to the district

court with instructions.

2. Remand for Re-Weighing of the Evidence

While the district court’s analysis contained some legal infirmities, the

record also contained evidence that could support a finding of discriminatory

intent. See Meche, 777 F.3d at 246–47 (noting in review of a district court’s

findings following a bench trial that “[w]here findings are infirm because of an

erroneous view of the law, a remand is the proper course unless the record

permits only one resolution of the factual issue”). Therefore, under Pullman-

Standard, 456 U.S. at 292, we must remand the discriminatory intent issue to

the district court to reweigh the factors in light of this opinion.

In Pullman-Standard, the Supreme Court reversed a panel of this court

after the panel weighed the facts and rendered judgment, rather than

remanding for further proceedings. Id. at 292–93. The Pullman-Standard

panel of this court had concluded that the district court erred by not

considering all relevant evidence and suggested that the district court might

have reached a different conclusion had it properly considered the evidence.

Id. at 284–85, 292. The Supreme Court admonished that “discriminatory

intent . . . is a factual matter subject to the clearly-erroneous standard . . .

20

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[and] when a district court’s finding on such an ultimate fact is set aside for an

error of law, the court of appeals is not relieved of the usual requirement of

remanding for further proceedings to the tribunal charged with the task of

factfinding in the first instance.” Id. at 293. The Court expressed concern that

this court would ignore such an “elementary” principle and instructed that it

is not the purview of this court to produce an “independent consideration of the

totality of the circumstances.” Id. at 291–92.

Pursuant to this clear guidance, our inquiry is whether “the record

permits of only one resolution of the factual issue.” Id. at 292. We conclude

that it does not.

First, although the record does not contain direct evidence that the Texas

Legislature passed SB 14 with a racially invidious purpose, this does not mean

there is no evidence that supports a finding of discriminatory intent.

“[D]iscriminatory intent need not be proved by direct evidence.” Rogers v.

Lodge, 458 U.S. 613, 618 (1982); Brown, 561 F.3d at 433 (“To find

discriminatory intent, direct or indirect circumstantial evidence, including the

normal inferences to be drawn from the foreseeability of defendant’s actions

may be considered.” (citation omitted)). Instead, courts may consider both

circumstantial and direct evidence of intent as may be available. Arlington

Heights, 429 U.S. at 266.

In this day and age we rarely have legislators announcing an intent to

discriminate based upon race, whether in public speeches or private

correspondence. 19 To require direct evidence of intent would essentially give

19 In fact, in this case, there is evidence that the proponents of SB 14 were careful

about what they said and wrote about the purposes of SB 14, knowing it would be challenged

during the preclearance process under the Voting Rights Act. Senator Fraser, one of the

authors of SB 14, admitted during his deposition that he believed “that the public legislative

record would either go to the Department of Justice or a three-judge panel as part of the

21

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legislatures free reign to racially discriminate so long as they do not overtly

state discrimination as their purpose and so long as they proffer a seemingly

neutral reason for their actions. This approach would ignore the reality that

neutral reasons can and do mask racial intent, a fact we have recognized in

other contexts that allow for circumstantial evidence.

For example, in employment discrimination cases, we do not

automatically find for an employer who proffers a race-neutral reason for

terminating an employee; instead, the employee can show that this reason is

pretextual. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973)

(establishing that where an employer has offered a race-neutral reason for an

adverse employment action, the employee is entitled to show that the

employer’s stated reason is in fact pretext); see, e.g., Evans v. City of Houston,

246 F.3d 344, 354–56 (5th Cir. 2001) (holding that a plaintiff had provided

sufficient circumstantial evidence that an employer’s reasons for demoting her

were pretextual to create a genuine dispute of material fact regarding whether

she was wrongfully demoted and reversing the district court’s grant of

summary judgment for the employer). As we were recently reminded in Foster

v. Chatman, 136 S. Ct. 1737, 1751–52, 1754–55 (2016), people hide

discriminatory intent behind seemingly legitimate reasons. If Jane were fired

from an at-will job for being late once, we might conclude that firing was

legitimate, until we learned that Joe, who has the very same job as Jane, was

late numerous times with no penalty. Cf. Evans, 246 F.3d at 354–56. Context

[Voting Rights Act] Section 5 review process,” and that he was therefore “aware that

everything that [he] was saying was part of a public record.” The Deputy General Counsel

to the Lieutenant Governor, Bryan Hebert, testified that he sent an email “urg[ing] senators

to emphasize the detection and deterrence of fraud and protect[ing] public confidence in

elections” as “the goal” of SB 14, “to remind people what the point of the bill was” for their

speeches on the floor of the Texas Senate.

22

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matters. 20 With this in mind, we now address the circumstantial evidence that

could support a finding of discriminatory purpose such that the record does not

permit of only one resolution of the factual issue of intent. Pullman-Standard,

456 U.S. at 292.

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. 21 See Veasey v. Perry, 71 F. Supp. 3d at 657–58.

Additionally, although he was careful with his comments about the

legislation, one of the authors of SB 14, Senator Fraser, testified that he

“believe[s] today the Voting Rights Act has outlived its useful life.” When other

legislators asked Senator Fraser questions about the possible disparate impact

of SB 14, he simply replied “I am not advised.” Id. at 646–47. Another senator

admitted at his deposition that he and other proponents of SB 14 voted to table

20 Of course, employment discrimination cases are not directly supportive, but they

are analogous. One of the dissenting opinions points out that the intent of the Legislature

differs from that of an employer because a legislature’s intent is “a pastiche of each individual

representative’s views, mixed policies and motives.” Jones Dissenting Op. at 5 n.5. But while

each legislator casts his or her own vote, these votes are often cast in blocs and along party

lines. Recognition that legislatures, just as employers, may articulate pretextual reasons for

discriminatory actions is not a superficial equation, but rather a realistic acknowledgment.

21 Representative Todd Smith, a proponent of the legislation, stated that it was

“common sense” the law would have a disproportionate effect on minorities. Veasey v. Perry,

71 F. Supp. 3d at 657. Similarly, Bryan Hebert, Deputy General Counsel in the Office of the

Lieutenant Governor, acknowledged that the poor and minorities were most likely to be

affected by SB 14. Id. Without additional forms of identification, Hebert warned that SB 14

was unlikely to obtain (the now-defunct) preclearance under Section 5 of the Voting Rights

Act. Id. at 658.

23

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numerous amendments meant to expand the types of accepted IDs, expand the

operating hours of DPS stations issuing voter IDs, delay implementation of SB

14 until an impact study had been completed, and other ameliorative

measures. He and other proponents of SB 14 have largely refused to explain

the rejection of those amendments, both at the time and in subsequent

litigation. Id. The district court noted that this attitude “was out of character

for sponsors of major bills.” Id. at 647.

The district court also heard evidence that SB 14 is only tenuously

related to the legislature’s stated purpose of preventing voter fraud. For

example, the record shows that Texas has a history of justifying voter

suppression efforts such as the poll tax and literacy tests with the race-neutral

reason of promoting ballot integrity. See id. at 636 & n.24. Dr. Vernon Burton,

an expert in race relations, testified about the “history of official discrimination

in Texas voting.” He identified some devices Texas has used to deny minorities

the vote, including “the all[-]White primary, the secret ballot and the use of

illiteracy[,] . . . poll tax, re-registration and purging.” He testified as follows

regarding “the stated rationale” for each of these devices:

Q What, in your opinion, was the stated rationale for the

enactment of all[-]White primaries in Texas?

A The stated rationale was voter fraud.

Q What was the stated rationale, in your opinion, for the

use of secret ballot provisions in Texas?

A The stated rationale was to prevent voter fraud.

Q And what was the stated rationale, in your opinion, for

the use of the poll tax in Texas?

A The stated rationale by the State was to prevent voter

fraud.

Q And how about the stated rationale for the use in

Texas of re-registration requirements and voter purges?

A The stated rationale was voter fraud.

24

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Q Dr. Burton, in your expert opinion, did these devices

actually respond to sincere concerns or incidents –

incidences of voter fraud?

A No.

Here, too, there is evidence that could support a finding that the

Legislature’s race-neutral reason of ballot integrity offered by the State is

pretextual. This bill was subjected to radical departures from normal

procedures. Consideration of procedural departures is a difficult inquiry,

because on the one hand, “[d]epartures from the normal procedural

sequence . . . might afford evidence that improper purposes are playing a role.”

Arlington Heights, 429 U.S. at 267. On the other hand, “objection[s] to typical

aspects of the legislative process in developing legislation,” such as increasing

the number of votes a law requires for passage, may not demonstrate an

invidious intent, standing alone. Cf. Operation Push, 932 F.2d at 408–09, 408

n.6. Yet, context matters, and evidence of procedural departures provides one

potential link in the circumstantial totality of evidence the district court must

consider.

In this case, for example, the procedural maneuvers employed by the

Texas Legislature and the State occurred, as the district court notes, only after

repeated attempts to pass voter identification bills were blocked through

countervailing procedural maneuvers. See Veasey v. Perry, 71 F. Supp. 3d at

645–46. At the same time, SB 14 was subject to numerous and radical

procedural departures that may lend credence to an inference of discriminatory

intent. See id. at 647–51. These included: (1) getting special permission to file

the bill under a low number reserved for the Lieutenant Governor’s legislative

priorities; (2) Governor Perry’s decision to designate the bill as emergency

legislation so that it could be considered during the first sixty days of the

legislative session; (3) suspending the two-thirds rule regarding the number of

25

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votes required to make SB 14 a “special order”; (4) allowing the bill to bypass

the ordinary committee process in the Texas House and Senate; (5) passing SB

14 with an unverified $2 million fiscal note despite the prohibition on doing so

in the 2011 legislative session due to a $27 million budget shortfall; (6) cutting

debate short to enable a three-day passage through the Senate; and (7) passing

resolutions to allow the conference committee to add provisions to SB 14,

contrary to the Legislature’s rules and normal practice. See id. at 647–53.

Such treatment was virtually unprecedented. 22

Texas is a huge state in land mass and population and the Legislature

faces great challenges in governing. The Texas Legislature meets for regular

sessions for less than five months out of every two years. TEX. CONST. art. III,

§ 24; TEX. GOV’T CODE § 301.001 (West 2013). 23 During the session, it must

pass a balanced budget that will govern until the next session, based on

projected revenue for the next two years. TEX. CONST. art. VIII, § 22; id. art.

III, § 49a. In recent years, the Legislature has faced many complex and

controversial issues. The district court noted that the 2011 legislative session

itself involved “critically important issues such as the $27 million budget

22 One of the dissenting opinions calls into question the rationale behind these

maneuvers and draws different interpretations and inferences from the evidence. However,

it is the exclusive province of the district court to engage in this fact finding. Pullman-

Standard, 456 U.S. at 291–92. We acknowledge that multiple inferences could reasonably

be drawn from the record evidence, but we must leave the drawing of those inferences to the

district court. Additionally, one of the dissenting opinions disagrees with reliance on

opposing legislators’ factual testimony about the unusual nature of the procedural

maneuvers utilized to pass SB 14. There is a clear difference between opposing legislators

testifying about their personal knowledge regarding the normal procedural sequence of

passing legislation and opposing legislators merely speculating about the motives of SB 14’s

proponents.

23The Texas Governor also has the power to call special sessions of the Legislature,

which are topically limited to the confines of the proclamation summoning the Legislature.

TEX. CONST. art. IV, § 8.

26

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shortfall and transportation funding,” none of which received “a select

committee or an exception from the two-thirds rule,” as did SB 14. Veasey v.

Perry, 71 F. Supp. 3d at 657.

The Legislature is entitled to set whatever priorities it wishes. Yet, one

might expect that when the Legislature places a bill on an expedited schedule

and subjects it to such an extraordinary degree of procedural irregularities, as

was the case with SB 14, such a bill would address a problem of great

magnitude. Ballot integrity is undoubtedly a worthy goal. But the evidence

before the Legislature was that in-person voting, the only concern addressed

by SB 14, yielded only two convictions for in-person voter impersonation fraud

out of 20 million votes cast in the decade leading up to SB 14’s passage. 24 See

id. at 639. The bill did nothing to combat mail-in ballot fraud, although record

evidence shows that the potential and reality of fraud is much greater in the

mail-in ballot context than with in-person voting. 25 Id. at 641, 653.

In the context of the many pressing matters of great importance to Texas

that did not result in these legislative irregularities, we cannot say that the

record leads to only one factual conclusion in this case. Pullman-Standard,

456 U.S. at 292. We cannot say that district court had to simply accept that

legislators were really so concerned with this almost nonexistent problem.

Against a backdrop of warnings that SB 14 would have a disparate impact on

24Representative Fischer testified that the Legislature had access to data from the

2008 and 2010 elections when considering SB 14, which showed that “of the millions of votes

cast in both of those elections, there were perhaps four referrals for in person voter

impersonation” and that “one, if not two individuals . . . had been officially charged and may

have accepted responsibility for impersonation.”

25 This statement is not intended as a criticism of allowing mail-in ballots, which are

a vital means of enabling voting when it would otherwise be difficult or impossible for some

people to exercise their right to vote in person. It is simply an acknowledgement that the

evidence supporting the need for reform was minimal on the in-person voting side.

27

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minorities and would likely fail the (then extant) preclearance requirement,

amendment after amendment was rejected. Veasey v. Perry, 71 F. Supp. 3d at

650–52, 698, 701–02, 708–10. While cloaking themselves in the mantle of

following Indiana’s voter ID law, which had been upheld against a (different)

challenge in Crawford, the proponents of SB 14 took out all the ameliorative

provisions of the Indiana law. See, e.g., id. at 651–52 (noting the Texas House

stripped an indigency exception that had been added to SB 14 in the Texas

Senate); cf. Frank v. Walker (Frank II), 819 F.3d 384, 386–87 (7th Cir. 2016)

(noting that an indigency exception may be necessary for voters who face “high

hurdles” to obtaining required photo identification and that the Indiana law

the Court considered in Crawford contained such an indigency exception). 26

This circumstantial evidence of discriminatory intent is augmented by

contemporary examples of State-sponsored discrimination in the record. For

26 One of the dissenting opinions claims that “the Indiana and Texas laws are not

meaningfully different.” Jones Dissenting Op. at 28 n.26. This ignores the district court’s

findings and the obvious differences between the two laws that affect the discriminatory

impact analysis. The district court explained the differences well:

Notably, while Defendants claim that SB 14 was modeled after the Indiana

law, the Indiana law is more generous to voters. Unlike SB 14, it permits the

use of any Indiana state-issued or federal ID and contains a nursing home

resident exemption. Furthermore, Indiana is more generous in its acceptance

of certain expired ID. Of particular relevance here, Indiana’s accommodation

of indigents, while requiring an additional trip to the county election office to

claim an exemption, does not require an indigent to actually obtain, or pay any

fees associated with, a qualified photo ID. This is significant, as demonstrated

in this case. There was also a reference in Crawford to a “greater public

awareness” of the law, which would prompt voters to secure qualified ID, as

opposed to a relative dearth of publicity and instruction in Texas.

Veasey v. Perry, 71 F. Supp. 3d at 679 (footnotes omitted) (citing IND. CODE § 3-5-2-40.5(a)(3)

(2014), IND. CODE § 3-11.7-5-2.5 (2011), and Crawford, 553 U.S. at 187–88 & n.6). The

district court specifically found that the Texas Legislature stripped an indigency exception

from SB 14, id. at 652, and that “[w]hen the legislature rejected student IDs, state

government employee IDs, and federal IDs, they rejected IDs that are disproportionately held

by African–Americans and Hispanics,” id. at 658. These differences are highly salient to the

discriminatory impact analysis.

28

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example, the record shows that as 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. See Veasey v. Perry,

71 F. Supp. 3d at 635. 27 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.” Id. at 636 & n.23 (collecting cases). 28

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

27 The law in question was enacted in 1975, after a previous re-registration

requirement was struck down as unconstitutional in the early 1970s. A three-judge court

eventually struck down this attempt at purging and re-registration after the Department of

Justice objected to the law when Texas became subject to preclearance. See generally Veasey

v. Perry, 71 F. Supp. 3d at 635 & n.18.

28 In LULAC, the Supreme Court also noted Texas’s “long, well-documented history

of discrimination that has touched upon the rights of African-Americans and Hispanics to

register, to vote, or to participate otherwise in the electoral process.” LULAC, 548 U.S. at

439 (quoting Vera v. Richards, 861 F. Supp. 1304, 1317 (S.D. Tex. 1994)). The Court found

that Texas’s 2003 redistricting plan diluted the Hispanic vote in one district such that it

violated the Voting Rights Act. Although the Court did not find that Texas had acted with

discriminatory intent, it noted:

The changes to District 23 undermined the progress of a racial

group that has been subject to significant voting-related

discrimination and that was becoming increasingly politically

active and cohesive. . . . In essence the State took away the

Latinos’ opportunity because Latinos were about to exercise it.

This bears the mark of intentional discrimination that could give

rise to an equal protection violation. Even if we accept the

District Court’s finding that the State’s action was taken

primarily for political, not racial, reasons, the redrawing of the

district lines was damaging to the Latinos in District 23. The

State not only made fruitless the Latinos’ mobilization efforts

but also acted against those Latinos who were becoming most

politically active, dividing them with a district line through the

middle of Laredo.

Id. at 439–40 (citations omitted).

29

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Voting Rights Act. Texas “is the only state with this consistent record of

objections to such statewide plans.” 29 Finally, the same Legislature that

passed SB 14 also passed two laws found to be passed with discriminatory

purpose. See Texas v. United States, 887 F. Supp. 2d 133, 159–66 (D.D.C. 2012)

(utilizing the Arlington Heights analysis and concluding the 2011 Texas

Legislature created two redistricting plans with a discriminatory purpose),

vacated and remanded on other grounds, 133 S. Ct. 2885 (2013).

It is also probative that many rationales were given for a voter

identification law, which shifted as they were challenged or disproven by

opponents. Veasey v. Perry, 71 F. Supp. 3d at 653–59; see generally Foster, 136

S. Ct. at 1751–52, 1754–55 (reasoning that the fact that the government’s

“principal reasons” for its action “shifted over time . . . suggest[ed] that those

reasons may [have been] pretextual”). One of those rationales included

preventing noncitizens from voting, even though two forms of identification

29 One of the dissenting opinions quarrels with the district court’s findings on this

issue, but a three-judge panel reviewing Texas’s 1981 redistricting plan reached the same

conclusion:

In 1975, Congress extended the special pre-clearance provisions

of the Voting Rights Act of 1965 to Texas. This decision was

made on the basis of extensive hearings into the history of voting

discrimination in the state. Since the pre-clearance provisions

were extended to Texas in August of 1975, the Department of

Justice has lodged far more objections to governmental actions

affecting voting rights in Texas than any other covered state.

Between August 15, 1975, and September 18, 1981, the State

and its various political sub-divisions received 91 letters of

objection. In this same period, no other covered state had more

than 50 objections, and only three had more than thirty. The

election changes objected to by the Department of Justice

include the movement of polling places, proposed annexations,

alteration of district lines, and a state-wide purge of voter

registration lists.

Seamon v. Upham, 536 F. Supp. 931, 989 (E.D. Tex.) (citations omitted), vacated on other

grounds, 456 U.S. 37 (1982).

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approved under SB 14 are available to noncitizens. Veasey v. Perry, 71 F. Supp.

3d at 654. It is likewise relevant that SB 14’s proponents refused to answer

why they would not allow amendments to ameliorate the expected disparate

impact of SB 14. Id. at 646–47, 650–51.

Further supporting the district court’s finding is the fact that the

extraordinary measures accompanying the passage of SB 14 occurred in the

wake of a “seismic demographic shift,” as minority populations rapidly

increased in Texas, such that the district court found that the party currently

in power is “facing a declining voter base and can gain partisan advantage”

through a strict voter ID law. 30 Id. at 700.

In sum, although some of the evidence on which the district court relied

was infirm, there remains evidence to support a finding that the cloak of ballot

integrity could be hiding a more invidious purpose. As we have explained, the

30 This partisan motive to suppress votes is not based on which party is in the

majority. When asked about the fact that most redistricting and discriminatory laws were

enacted under legislatures with a majority who were members of a different party than the

current majority, the Plaintiffs’ expert, Dr. Burton, agreed. He testified that this fact made

his analysis “stronger because it does not matter who is in charge of State politics or the

political parties in power in Texas, whether they’re Republicans, Democrats[,] or Martians,

every time that African–Americans have, in fact, been perceived to be increasing their ability

to vote and participate in the process there has been State legislation to either deny them the

vote or at least dilute the vote or make it much more difficult for them to participate on an

equal basis as Whites in the State of Texas.”

One of the dissenting opinions claims that we confuse partisanship for racism in our

analysis of whether the Legislature acted with a discriminatory intent. Intentions to achieve

partisan gain and to racially discriminate are not mutually exclusive. As another of the

dissenting opinions points out, acting to preserve legislative power in a partisan manner can

also be impermissibly discriminatory. Ketchum v. Byrne, 740 F.2d 1398, 1408 (7th Cir. 1984)

(noting that “racial discrimination [may be and has been a] necessary accompaniment of [an]

action taken to protect incumbencies”). In this case, the district court found that the party

in power in the Texas Legislature faced “a declining voter base and [stood to] gain partisan

advantage by suppressing the . . . votes of African-Americans and Latinos.” See Veasey v.

Perry, 71 F. Supp. 3d at 700. Once again, the disagreement centers in part on the fact that

some of the dissenting opinions would re-weigh the evidence and disregard the district court’s

fact findings, which we are not entitled to do. See Pullman-Standard, 456 U.S. at 292.

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absence of direct evidence such as a “let’s discriminate” email cannot be and is

not dispositive. Because we do not know how much the evidence found infirm

weighed in the district court’s calculus, we cannot simply affirm the decision.

However, it is not an appellate court’s place to weigh evidence. See Price, 945

F.2d at 1317 (“[T]he appellate court may not substitute its judgment for the

district court’s.”). Thus, since there is more than one way to decide this case,

and the right court to make those findings is the district court, we must

remand. 31

We therefore remand this claim to the district court to “reexamin[e] . . .

the probative evidence underlying Plaintiffs’ discriminatory purpose claims

weighed against the contrary evidence, in accord with” the appropriate legal

standards we have described. Veasey, 796 F.3d at 503–04; cf. City of Richmond

31 Two of the dissenting opinions take issue with our decision on discriminatory

intent, in part because this issue can be fraught and divisive. One of the dissenting opinions

claims that Congress intended to prevent such divisiveness by ensuring that plaintiffs could

sue for discriminatory impact. Congress amended the Voting Rights Act in 1982 to make it

clear that plaintiffs could sue for discriminatory impact after Supreme Court precedent had

required the showing of a discriminatory purpose under Section 2. See S. Rep. No. 97-417,

at 15–16 (1982), as reprinted in 1982 U.S.C.C.A.N. 177, 192–93. Congress acted in the face

of this precedent to make it easier for minority plaintiffs to combat discriminatory laws—not

to make it more difficult. Congress did not eliminate plaintiffs’ ability to sue for purposeful

discrimination, so it remains our duty to consider these claims. See S. Rep. No. 97-417, at 17

(1982), as reprinted in 1982 U.S.C.C.A.N. 177, 194 & n.50 (emphasis in original) (citation

omitted) (noting that Section 2 was originally understood by Congress to prohibit “any kind

of practice . . . if its purpose or effect was to deny or abridge the right to vote on account of

race or color”). In this case, although we must tread carefully in assessing the motives of the

Legislature and the district court may very well agree with some of the points made by the

dissenting opinions, we must be mindful of our role in this process. We are not the court to

make factual findings in the first instance, and the record evidence could support more than

one conclusion. We must therefore remand for reweighing of the evidence, rather than

conducting that reweighing ourselves. See Pullman-Standard, 456 U.S. at 291 (“When an

appellate court discerns that a district court has failed to make a finding because of an

erroneous view of the law . . . there should be a remand for further proceedings to permit the

trial court to make the missing findings . . . .” (emphasis added)); N. Miss. Commc’ns, Inc. v.

Jones, 951 F.2d 652, 656–57 (5th Cir. 1992) (citing Pullman-Standard, 456 U.S. at 291)

(remanding a case, for the fourth time, for factual findings under the proper standard).

32

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v. United States, 422 U.S. 358, 378 (1975) (“[W]e should be confident of the

evidentiary record and the adequacy of the lower court’s consideration of it.”).

The parties have not asked to offer additional evidence, and we conclude that,

as to this issue, the district court should not take additional evidence. The

district court may, but is not required to, entertain additional oral argument

prior to issuing its new findings. The district court on remand should make its

discriminatory purpose findings based on the record we have, guided by this

opinion and the instructions we have given the district court about the legal

infirmities in its initial findings.

Time is short, though. The Supreme Court has, in effect, set a July 20

deadline for this court to act, after which it will entertain motions for relief.

Veasey v. Abbott, 136 S. Ct. at 1823. Time is also needed to communicate those

modifications to the wider public so as not to disrupt the election process.

Indeed, among the findings made by the district court was that the public

education campaign for SB 14 at the time of trial was “grossly insufficient.”

Veasey v. Perry, 71 F. Supp. 3d at 649. Equally necessary in the time left before

early voting begins in late October is an adequate campaign to explain not only

SB 14 but also court-ordered amendments to voter identification rules. We are

mindful that future litigation and appeals to this court are also distinct

possibilities.

Additionally, we recognize the burden our majority opinion places on the

district court to implement a remedy for the discriminatory effect violation

with so little time, see infra Part II.B. Therefore, to avoid disruption of the

upcoming election, we rely on equitable principles in concluding that the

district court should first focus on fashioning interim relief for the

discriminatory effect violation in the months leading up to the November 2016

general election. The primary concern of this court and the district court

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should be to ensure that SB 14’s discriminatory effect is ameliorated as Section

2 requires in time for the November 2016 election, while respecting the policy

choices made by the Legislature in passing SB 14. See Perry v. Perez, 132 S.

Ct. 934, 940–41 (2012) (per curiam).

We instruct the district court to take the requisite time to reevaluate the

evidence and determine anew whether the Legislature acted with a

discriminatory intent in enacting SB 14. But it is unnecessary for the district

court to undertake this task until after the November 2016 election. See

Purcell v. Gonzalez, 549 U.S. 1, 5–6 (2006) (election permitted to continue

despite unresolved issues related to disenfranchisement); see also Reynolds v.

Sims, 377 U.S. 533, 585 (1964) (noting that a court may withhold immediate

relief so as not to disturb a forthcoming election). If the district court concludes

that SB 14 was passed with a discriminatory intent, the district court should

fashion an appropriate remedy in accord with its findings; provided, however,

that any remedy will not be made effective until after the November 2016

election.

B. Discriminatory Effect

Plaintiffs allege that SB 14 has a discriminatory effect in violation of

Section 2 of the Voting Rights Act, which proscribes any “voting qualification

or prerequisite to voting or standard, practice, or procedure . . . which results

in a denial or abridgement of the right of any citizen . . . to vote on account of

race or color.” 52 U.S.C. § 10301(a). Unlike discrimination claims brought

pursuant to the Fourteenth Amendment, Congress has clarified that violations

of Section 2(a) can “be proved by showing discriminatory effect alone.”

Thornburg v. Gingles, 478 U.S. 30, 35 (1986); see also 52 U.S.C. § 10301(b). 32

32 Section 2 provides in full:

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In proscribing laws that have a discriminatory effect, Congress exercised its

authority pursuant to the Fifteenth Amendment, which states 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,” and gives Congress the “power to enforce this article by appropriate

legislation.” U.S. CONST. amend. XV.

1. The Gingles Factors and Two-Part Framework

To prove that a law has a discriminatory effect under Section 2, Plaintiffs

must show not only that the challenged law imposes a burden on minorities,

but also that “a certain electoral law, practice, or structure interacts with social

and historical conditions to cause an inequality in the opportunities enjoyed by

black and white voters to elect their preferred representatives.” Gingles, 478

U.S. at 47 (emphasis added). While courts regularly utilize statistical analyses

to discern whether a law has a discriminatory impact, see, e.g., Operation Push,

(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) 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 class elected in numbers equal to their proportion in

the population.

52 U.S.C. § 10301. We address more fully below how the factors adopted by the Supreme

Court in Gingles and the other standards we apply effectuate the language of Section 2.

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932 F.2d at 410–11, the Supreme Court has also endorsed factors (“the Gingles

factors”) enunciated by Congress to determine whether such an impact is a

product of current or historical conditions of discrimination such that it

violates Section 2, 33 Gingles, 478 U.S. at 44–45.

Although courts have often applied the Gingles factors to analyze claims

of vote dilution, 34 perhaps because of past preclearance requirements, there is

little authority on the proper test to determine whether the right to vote has

been denied or abridged on account of race. See Ohio State Conference of

NAACP v. Husted, 768 F.3d 524, 554 (6th Cir. 2014) (“Unsurprisingly, then,

the case law has developed to suit the particular challenges of vote dilution

claims. A clear test for Section 2 vote denial claims—generally used to refer to

any claim that is not a vote dilution claim—has yet to emerge.”), vacated on

other grounds by No. 14-3877, 2014 WL 10384647, at *1 (6th Cir. Oct. 1, 2014).

However, the Fourth and Sixth Circuits have adopted a two-part framework

that draws on the text of Section 2 and the Supreme Court’s guidance in

Gingles to analyze Section 2 claims.

(a) The Two-Part Framework

We now adopt the two-part framework employed by the Fourth and Sixth

Circuits to evaluate Section 2 “results” claims. The framework has two

elements:

[1] [T]he challenged standard, practice, or procedure must impose

a discriminatory burden on members of a protected class, meaning

that members of the protected class have less opportunity than

33 These are sometimes also called the “Senate Factors,” as they derive from the

Senate Report accompanying the 1982 amendments to the Voting Rights Act. See Gingles,

478 U.S. at 43–45.

34 See, e.g., League of United Latin Am. Citizens, Council No. 4434 v. Clements, 999

F.2d 831, 850–51 (5th Cir. 1993) (en banc); Salas v. Sw. Tex. Junior Coll. Dist., 964 F.2d

1542, 1543, 1546, 1551–56 (5th Cir. 1992).

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other members of the electorate to participate in the political

process and to elect representatives of their choice, [and]

[2] [T]hat burden must in part be caused by or linked to social and

historical conditions that have or currently produce discrimination

against members of the protected class.

League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 240 (4th Cir.

2014) (citations and internal quotation marks omitted), cert. denied, 135 S. Ct.

1735 (2015); see also Husted, 768 F.3d at 554.

The first part of this two-part framework inquires about the nature of

the burden imposed and whether it creates a disparate effect in that “members

of the protected class have less opportunity than other members of the

electorate to participate in the political process and to elect representatives of

their choice”—this encompasses Section 2’s definition of what kinds of burdens

deny or abridge the right to vote. Compare 52 U.S.C. § 10301 (proscribing

denial or abridgement of the right to vote and defining how a violation of

Section 2 may be established), with League of Women Voters, 769 F.3d at 240

(outlining the two-part test, using almost identical language to describe an

impermissible burden on the right to vote).

The second part of the two-part framework draws on the Supreme

Court’s guidance in Gingles. See League of Women Voters, 769 F.3d at 240

(quoting Gingles, 478 U.S. at 47); Husted, 768 F.3d at 554 (quoting Gingles,

478 U.S. at 47). This second part of the framework provides the requisite

causal link between the burden on voting rights and the fact that this burden

affects minorities disparately because it interacts with social and historical

conditions that have produced discrimination against minorities currently, in

the past, or both. See Gingles, 478 U.S. at 47 (“The essence of a § 2 claim is

that a certain electoral law, practice, or structure interacts with social and

37

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historical conditions to cause an inequality in the opportunities enjoyed by

black and white voters to elect their preferred representatives.”).

(b) The Gingles Factors

As did the Fourth and Sixth Circuits, we conclude that the Gingles

factors should be used to help determine whether there is a sufficient causal

link between the disparate burden imposed and social and historical conditions

produced by discrimination. 35 In other words, the Gingles factors may be used

to examine causality under the second part of the two-part analysis.

These factors include:

1. the extent of any history of official discrimination in the state or

political subdivision that touched the right of the members of the

minority group to register, to vote, or otherwise to participate in

the democratic process;

2. the extent to which voting in the elections of the state or political

subdivision is racially polarized;

3. the extent to which the state or political subdivision has used

unusually large election districts, majority vote requirements,

anti-single shot provisions, or other voting practices or procedures

that may enhance the opportunity for discrimination against the

minority group;

4. if there is a candidate slating process, whether the members of

the minority group have been denied access to that process;

5. the extent to which members of the minority group in the state

or political subdivision bear the effects of discrimination in such

areas as education, employment and health, which hinder their

ability to participate effectively in the political process;

6. whether political campaigns have been characterized by overt or

subtle racial appeals;

35 See League of Women Voters, 769 F.3d at 240, 245 (noting the Gingles factors are

useful in examining both elements of the two-part test, especially the causal linkage between

disparate impacts and conditions of discrimination); Husted, 768 F.3d at 554 (noting the

Gingles factors form part of the totality of the circumstances analysis in examining a claim

of vote denial, “particularly with regard to the second element” of the two-part test).

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7. the extent to which members of the minority group have been

elected to public office in the jurisdiction.

Id. at 36–37 (quoting S. Rep. No. 97-417, at 28–29 (1982), reprinted in 1982

U.S.C.C.A.N. 177, 206–07). Two additional considerations are:

[8.] whether there is a significant lack of responsiveness on the

part of elected officials to the particularized needs of the members

of the minority group[; and]

[9.] whether the policy underlying the state or political

subdivision’s use of such voting qualification, prerequisite to

voting, or standard, practice or procedure is tenuous.

Id.

These factors are not exclusive, and “there is no requirement that any

particular number of factors be proved, or that a majority of them point one

way or the other.” Id. at 45 (quoting S. Rep. No. 97-417, at 29). Not every

factor will be relevant in every case. These factors provide salient guidance

from Congress and the Supreme Court on how to examine the current effects

of past and current discrimination and how those effects interact with a

challenged law. Id.; League of Women Voters, 769 F.3d at 240, 245; Husted,

768 F.3d at 554.

(c) This Analysis is Appropriate for Section 2 Effect Challenges

The State argues that the Gingles factors are inapposite in this context,

and that we should apply the two-part test as it was applied in the Seventh

Circuit in Frank v. Walker, 768 F.3d 744, 754–55 (7th Cir. 2014), cert. denied,

135 S. Ct. 1551 (2015). The State also argues that if we apply the Gingles

factors and two-part test and find a Section 2 violation in this case, all manner

of neutral election laws may be struck down. We disagree that the Gingles

factors are inapposite here, and we have good reasons to believe that the

State’s gloomy forecast is unsound.

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Use of the two-factor test and the Gingles factors limits Section 2

challenges to those that properly link the effects of past and current

discrimination with the racially disparate effects of the challenged law.

Applying the Gingles factors involves engaging in a multi-factor analysis,

under which no one factor has determinative weight. Gingles, 478 U.S. at 45.

Certainly, this analysis is fact dependent. Yet, in many similar contexts, we

frequently employ multi-factor, totality-of-the-circumstances analyses that are

highly fact bound. See, e.g., United States v. Batamula, ___ F.3d ___, No. 12-

20630, 2016 WL 2342943, at *3–4 (5th Cir. May 3, 2016) (en banc) (analyzing

the totality of the circumstances to determine whether a defendant was

prejudiced by a lack of competent advice during the guilty plea process);

Cannata v. Catholic Diocese of Austin, 700 F.3d 169, 175–76 (5th Cir. 2012)

(adopting a “totality-of-the-circumstances” analysis to determine whether an

employee is a minister for purposes of the ministerial exception and abrogating

the three-part test previously employed by this court, because the Supreme

Court specifically rejected the use of a rigid, bright-line test for this issue);

Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 330–31 (5th Cir. 2009)

(applying multi-factor tests to analyze whether a supervisor created a hostile

work environment or retaliated against an employee for reporting sexual

harassment, and in analyzing the last factor of the hostile work environment

test, looking to the totality of the circumstances to determine whether the

harassment was sufficiently severe and pervasive to alter employment

conditions). 36

36 See also In re Am. Int’l Refinery, Inc., 676 F.3d 455, 462 (5th Cir. 2012) (rejecting a

per se approach in favor of a “totality of the circumstances approach for deciding whether

third-party payment of a retainer creates a disqualifying interest” in a bankruptcy case);

United States v. Jenson, 462 F.3d 399, 406 (5th Cir. 2006) (employing a multi-factor test to

determine whether consent to search was voluntary); Cleveland v. City of Elmendorf, 388

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We conclude that the two-part framework and Gingles factors together

serve as a sufficient and familiar way to limit courts’ interference with

“neutral” election laws to those that truly have a discriminatory impact under

Section 2 of the Voting Rights Act. Just because a test is fact driven and multi-

factored does not make it dangerously limitless in application.

The State argues that we should instead adopt a bright-line test as our

limiting principle. As the State would have it, so long as the State can

articulate a legitimate justification for its election law and some voters are able

to meet the requirements, there is no Section 2 violation. This argument

effectively nullifies the protections of the Voting Rights Act by giving states a

free pass to enact needlessly burdensome laws with impermissible racially

discriminatory impacts. The Voting Rights Act was enacted to prevent just

such invidious, subtle forms of discrimination. See Chisom v. Roemer, 501 U.S.

380, 406 (1991) (Scalia, J., dissenting); Allen v. State Bd. of Elections, 393 U.S.

544, 565–66 (1969). We think the factors applied to the facts are a proper

limiting principle, and find this analysis faithful to the purposes of the Voting

Rights Act. 37

F.3d 522, 528 (5th Cir. 2004) (employing a totality-of-the-circumstances analysis to

determine whether workers were volunteers for the purposes of the Fair Labor Standards

Act); Brown & Root, Inc. v. NLRB, 333 F.3d 628, 634 (5th Cir. 2003) (applying a totality-of-

the-circumstances analysis to determine whether an employer made an unlawful threat

related to union activity); United States v. Rodriguez-Rivas, 151 F.3d 377, 380–81 (5th Cir.

1998) (employing a totality-of-the-circumstances analysis to determine whether a Border

Patrol agent had reasonable suspicion to stop a vehicle); United States v. Jon-T Chems., Inc.,

768 F.2d 686, 694 (5th Cir. 1985) (looking “to the totality of the circumstances” in a “heavily

fact-specific” inquiry regarding whether a subsidiary was the alter ego of its parent); Gonzales

v. Beto, 460 F.2d 314, 315 (5th Cir. 1972) (judging a lineup by the totality of the circumstances

to determine whether it violated due process).

37 These arguments also address the discomfort expressed by some of the dissenting

opinions with how the Gingles factors are applied differently in different cases. As we have

noted, the factors are highly fact dependent, as they must be to address different laws,

different states with varying histories of official discrimination, and different populations of

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In addition, two district courts have now applied the same analysis we

apply here to two different states’ laws and have found no discriminatory

results under Section 2. See, e.g., Lee v. Va. State Bd. of Elections, ___ F. Supp.

3d ____, No. 3:15CV357-HEH, 2016 WL 2946181, at *5, *21–24 (E.D. Va. May

19, 2016); N.C. State Conference of the NAACP v. McCrory, ___ F. Supp. 3d

____, No. 1:13CV658, 2016 WL 1650774, at *73–76, *117, *122 (M.D.N.C. Apr.

25, 2016). These district court cases illustrate three principles that the State

ignores in its arguments before us: (1) the analysis we employ effectively allows

examination of differing fact patterns; (2) the State’s prediction of vast judicial

interference with election laws is unfounded; and (3) district courts are well

suited to conduct this fact-intensive analysis in the first instance, as the

institutions we rely on for fact finding day in and day out.

minority voters. Such has also been the case with the variances in decisions among the circuit

courts to consider challenges to voter ID laws—our decision differs from those of other circuits

in part because we are considering “the [s]trictest [l]aw in the [c]ountry” in a State with a

fairly extensive history of official discrimination. See Veasey v. Perry, 71 F. Supp. 3d at 642;

cf. Frank, 768 F.3d at 746 (noting that Wisconsin’s law allowed the use of state ID cards,

recent naturalization papers, tribal IDs, and signed college or university photo IDs); Common

Cause/Georgia v. Billups, 554 F.3d 1340, 1346 (11th Cir. 2009) (noting that Georgia’s law

allowed the use of “a government employee identification card, a U.S. military identification

card, or a tribal identification card”); Gonzalez v. Arizona, No. CV 06-1268-PHX, 2006 WL

3627297, at *6 (D. Ariz. Sept. 11, 2006) (describing a wide variety of acceptable forms of

identification accepted at Arizona polls), aff’d, 485 F.3d 1041 (9th Cir. 2007).

Even so, the fact-dependent nature of the Gingles factors does not mean that

“[v]irtually any voter regulation” may be struck down under our analysis. See Jones

Dissenting Op. at 52. Undoubtedly, challenges to election laws under Section 2 have

increased since Shelby County as states have enacted new laws and regulations that must be

challenged under Section 2, if at all, because these laws no longer face preclearance. That

does not mean that our analysis endangers neutral, nondiscriminatory election laws. As we

explain infra, district courts considering these challenges have come to different conclusions

based on varying fact patterns and election laws, not always with the result of striking down

election laws. Indeed, the United States abandoned its Section 2 discriminatory-effect

challenge to a voter ID law after the North Carolina legislature added a reasonable

impediment exception to the law. See N.C. State Conference of the NAACP v. McCrory, ___

F. Supp. 3d ____, No. 1:13CV658, 2016 WL 1650774, at *16 (M.D.N.C. Apr. 25, 2016).

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Furthermore, the Seventh Circuit’s approach in Frank is not

inconsistent with our own. The Seventh Circuit applied the two-part

framework only “[f]or the sake of argument,” did not apply the Gingles factors,

and expressed skepticism about the second step of the two-part analysis

“because it does not distinguish discrimination by the [government] defendants

from other persons’ discrimination.” Frank, 768 F.3d at 754–55. The Seventh

Circuit ultimately did not apply the second step of the two-part analysis

because it concluded that the plaintiffs failed to show that Wisconsin’s law

imposed a discriminatory burden that gave minority voters less opportunity to

participate in the political process at the first step of the analysis. Id. at 753,

755. Our record contains more particularized evidence of the discriminatory

burden imposed by SB 14 than did the record in Frank. 38

To the extent that the State argues causality may be established only

where there is a finding that state action caused the social and historical

conditions begetting discrimination, see Frank, 768 F.3d at 755, we need not

and do not decide that issue. Unlike in Frank, the district court in this case

found both historical and contemporary examples of discrimination in both

employment and education by the State of Texas, and it attributed SB 14’s

disparate impact, in part, to the lasting effects of that State-sponsored

discrimination. See Veasey v. Perry, 71 F. Supp. 3d at 636, 666–67. Thus, even

assuming this limitation from Frank applied, the evidence here meets that

test.

38 Furthermore, Wisconsin’s law, considered in Frank, allows for more forms of

identification than does SB 14. The district court found SB 14 to be the “[s]trictest [l]aw in

the [c]ountry” based on comparisons to other states’ voter ID laws and on the characterization

of SB 14 by one of its drafters. Veasey v. Perry, 71 F. Supp. 3d at 642–43, 701 & n.542.

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Finally, we reject the argument that Crawford mandates upholding SB

14 simply because the State expressed legitimate justifications for passing the

law. 39 Crawford contains no mention of Section 2 or the Voting Rights Act—

in that case, the Court only considered a First and Fourteenth Amendment

challenge, which involves a different analytical framework than what we use

for Section 2 claims. See generally 553 U.S. 181. Additionally, the Court in

Crawford analyzed only a facial challenge that had been adjudicated in the

district court on summary judgment. Crawford, 553 U.S. at 187–88, 202–03.

Here, we have a multitude of factual findings about Plaintiffs’ combined

challenges, based on copious evidence from a bench trial and a record that

spans more than one hundred thousand pages. See generally Veasey v. Perry,

71 F. Supp. 3d 627. Nevertheless, the State argues that Frank drew on

Crawford to conclude Wisconsin’s law did not impose a discriminatory burden

on voters because it appeared to be a generally-applicable election law.

Crawford clearly established that states have strong interests in

preventing voter fraud and increasing voter confidence by safeguarding the

integrity of elections. 553 U.S. at 191, 194–97. We do not deny that the State

in this case may pursue those interests, nor that they are strong and valid

interests. However, that acknowledgement does not address the additional as-

39 One of the dissenting opinions relies heavily on Crawford in discussing both

discriminatory purpose and impact, essentially using Crawford’s endorsement of “preventing

voter fraud” as a talisman against objections that SB 14 does not appear even remotely well

tailored to suit its stated purposes. While we acknowledge the State’s legitimate interests in

this case, Crawford did not deal with either discriminatory intent or effect under Section 2.

In Crawford, the Court simply noted the weight of the State’s interests in the First and

Fourteenth Amendment balancing analysis, which differs from Section 2’s inquiries into

discriminatory motive and impact. As noted infra, even Judge Easterbrook and the Seventh

Circuit do not subscribe to the dissenting opinions’ views of Crawford’s or Frank’s holdings.

We likewise decline to read into Crawford the inapposite principle that the State may

invidiously discriminate or impermissibly disparately burden minorities so long as it

articulates “preventing voter fraud” as one purpose of a restrictive law.

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applied challenges Plaintiffs make in this case. See id. at 199–202. Even the

Seventh Circuit has acknowledged that Crawford does not extend as far as the

State argues, holding that Frank “did not decide that persons unable to get a

photo ID with reasonable effort lack a serious grievance.” Frank II, 819 F.3d

at 386. The Seventh Circuit in this later iteration of Frank did not consider a

Section 2 challenge. Id. at 385–86; see also Frank v. Walker, 141 F. Supp. 3d

932, 934–36 (E.D. Wis. 2015), vacated in part by Frank II, 819 F.3d 384. But

the court noted that neither Crawford nor Frank foreclose the argument that

an indigency exception may be necessary to prevent an unconstitutional

burden on plaintiffs hindered from voting and obtaining photo IDs due to

financial hardship and other factors like those exhibited by the Plaintiffs in

this case. 40 Frank II, 819 F.3d at 386–87. The Seventh Circuit remanded the

plaintiffs’ constitutional claims to the district court for further consideration of

an as-applied challenge factually similar to the one Plaintiffs make in this case.

Id. at 385–86, 388.

40 Specifically, the Seventh Circuit noted the distinction between the general facial

challenge in Frank and the more particular as-applied challenge in Frank II:

The argument plaintiffs now present is different. Instead of saying that

inconvenience for some voters means that no one needs photo ID, plaintiffs

contend that high hurdles for some persons eligible to vote entitle those

particular persons to relief. Plaintiffs’ approach is potentially sound if even a

single person eligible to vote is unable to get acceptable photo ID with reasonable

effort. The right to vote is personal and is not defeated by the fact that 99% of

other people can secure the necessary credentials easily. Plaintiffs now accept

the propriety of requiring photo ID from persons who already have or can get

it with reasonable effort, while endeavoring to protect the voting rights of those

who encounter high hurdles. This is compatible with our opinion and mandate,

just as it is compatible with Crawford.

Frank II, 819 F.3d at 386–87 (emphasis added).

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Having established that the two-part analysis and Gingles factors are

appropriate standards for examining Plaintiffs’ Section 2 claim, 41 we evaluate

the district court’s discriminatory effect finding for clear error. See Operation

Push, 932 F.2d at 410.

2. SB 14’s Disparate Impact

The district court found that 608,470 registered voters, or 4.5% of all

registered voters in Texas, lack SB 14 ID. Veasey v. Perry, 71 F. Supp. 3d at

659. Of those, 534,512 voters did not qualify for a disability exemption from

SB 14’s requirements. Id. The latter figure, which was derived by comparing

the Texas Election Management System with databases containing evidence

of who possesses SB 14 ID, is known as the “No-Match List.” 42 Id. The district

court credited expert analysis and testimony by the individual Plaintiffs,

finding that SB 14 imposed excessive and disparate burdens on minority voters

41 One of the dissenting opinions proposes a different analysis to apply in Section 2

“results” cases. This opinion asserts that the test should be “simple and consistent,” meaning

that we should ignore the Supreme Court’s guidance in Gingles, Congress’s intention as

expressed in the Senate Factors, and, in practice, that we should require outright denial of

the right to vote to show a Section 2 violation. Jones Dissenting Op. at 53. Unfortunately,

assessing whether a law has a discriminatory impact is no simple matter and does not lend

itself to simple formulations. As we have shown, neither do many other fact-dependent tests

that we routinely apply in other contexts. We must undertake this difficult work, even if the

analytical frameworks best suited to the task are not as neat and tidy as we would prefer.

See Clements, 999 F.2d at 860 (noting that standards in Section 2 cases “must reflect the

central purpose of the Voting Rights Act and its intended liberality as well as the practical

difficulties of proof in the real world of trial,” especially since “greater certitude frequently

may be purchased only at the expense of other values”).

42 While the State’s expert criticized this calculation, he conceded that the

methodology used to derive this figure was well accepted. Nonetheless, he attempted to

challenge the No-Match List because 21,731 people on the No-Match List later voted in the

spring 2014 election. We accept the well-reasoned logic of the district court, which noted that

some of those 21,731 who voted may have done so by mail, which does not require SB 14 ID,

while others may have obtained SB 14 ID between the calculation of the No-Match List and

the spring 2014 election. Veasey v. Perry, 71 F. Supp. 3d at 660.

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who lack SB 14 ID, including many Plaintiffs. Id. at 664–77. This evidence

supports the district court’s findings regarding SB 14’s disparate impact.

(a) Expert Analyses of SB 14’s Impact

Plaintiffs’ experts relied on four distinct methods of analysis to

determine the races of those on the No-Match List. 43 Id. at 660–62. Those

included: (1) ecological regression analysis, (2) homogenous block group

analysis, (3) comparing the No-Match List to a Spanish Surname Voter

Registration list, and (4) reliance on data provided by Catalist LLC, a company

that compiles election data. Id. at 661. The ecological regression analysis

performed by Dr. Stephen Ansolabehere, an expert in American electoral

politics and statistical methods in political science, which compared the No-

Match List with census data, revealed that Hispanic registered voters and

Black registered voters were respectively 195% and 305% more likely than

their Anglo peers to lack SB 14 ID. Id. According to Dr. Ansolabehere, this

disparity is “statistically significant and ‘highly unlikely to have arisen by

chance.’” Id. The homogenous block group analysis yielded similar results,

and other experts arrived at similar conclusions. Id. at 661–62. These

statistical analyses of the No-Match List were corroborated by a survey of over

2,300 eligible Texas voters, which concluded that Blacks were 1.78 times more

likely than Whites, and Latinos 2.42 times more likely, to lack SB 14 ID. Id.

43 We recognize that the terms used to describe different racial or ethnic groups

inoffensively can themselves be the subject of dispute. Where we quote a witness or the

district court or where we discuss a witness’s testimony, we use their terms. For our part,

because we are a reviewing court, while recognizing the imperfections of these terms, we use

the terms used by the district court and the parties to refer to the three groups that were the

subject of the evidence in this case: Anglos (used to describe non-Hispanic Caucasians),

Hispanics, and African Americans. We also recognize that many Texans identify with more

than one racial or ethnic group and some Texans do not fall into any of these three groups;

we address the evidence and arguments as they were presented by the parties.

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at 662–63. Even the study performed by the State’s expert, which the district

court found suffered from “significant methodological oversights,” found that

4% of eligible White voters lacked SB 14 ID, compared to 5.3% of eligible Black

voters and 6.9% of eligible Hispanic voters. Id. at 663 & n.239. The district

court thus credited the testimony and analyses of Plaintiffs’ three experts, each

of which found that SB 14 disparately impacts African-American and Hispanic

registered voters in Texas. Id. at 663.

The district court likewise concluded that SB 14 disproportionately

impacts the poor, who are disproportionately minorities. Id. at 664–65. It

credited expert testimony that 21.4% of eligible voters earning less than

$20,000 per year lack SB 14 ID, compared to only 2.6% of voters earning

between $100,000 and $150,000 per year. Id. at 664. Lower income

respondents were also more likely to lack the underlying documents to get an

EIC. Id. Dr. Jane Henrici, an anthropologist and professorial lecturer at

George Washington University, explained that:

[U]nreliable and irregular wage work and other income . . . affect

the cost of taking the time to locate and bring the requisite papers

and identity cards, travel to a processing site, wait through the

assessment, and get photo identifications. This is because most

job opportunities do not include paid sick or other paid leave;

taking off from work means lost income. Employed low-income

Texans not already in possession of such documents will struggle

to afford income loss from the unpaid time needed to get photo

identification.

Id. (alteration in original).

Furthermore, the court found that the poor are less likely to avail

themselves of services that require ID, such as obtaining credit and other

financial services. Id. They are also less likely to own vehicles and are

therefore more likely to rely on public transportation. Id. at 665, 672–73. As

a result, the poor are less likely to have a driver’s license and face greater

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obstacles in obtaining photo identification. Id. Even obtaining an EIC poses

an obstacle—the district court credited evidence that hundreds of thousands of

voters face round-trip travel times of 90 minutes or more to the nearest location

issuing EICs. Id. at 672. Of eligible voters without access to a vehicle, a large

percentage faced trips of three hours or more to obtain an EIC. 44 Id.

(b) The State’s Challenges to the District Court’s Analysis

Although the State does not dispute the underlying factual findings, it

identifies several purported legal errors in the district court’s decision. We

address only the most relevant challenges at length herein. 45 We conclude that

44 Before the panel, the State attacked the entirety of the district court’s findings on

the grounds that the lower court did not distinguish between SB 14’s statutory provisions

and the Department of Public Safety’s implementing regulations. Although an issue raised

for the first time on appeal, like this one, is waived, Fruge v. Amerisure Mut. Ins. Co., 663

F.3d 743, 747 (5th Cir. 2011), this argument likewise fails on the merits. The State’s proposed

rule of law would contradict both Gingles’s demand that courts take a “functional view of the

political process” in assessing Section 2 claims, 478 U.S. at 45, 48 n.15, and Section 2’s

language itself, which proscribes voting practices “imposed or applied” such that they produce

a discriminatory result, 52 U.S.C. § 10301(a). Moreover, we have previously affirmed a

district court’s finding of discriminatory impact where the district court found the law

delegated too much discretion to local officials. See Operation Push, 932 F.2d at 404.

45 Other challenges brought by the State include its argument that that the analyses

relied upon by the district court are unreliable because one source of data—the State’s voter

registration database—does not list the race or ethnicity of voters. The State contends that

Plaintiffs’ expert should have relied instead on data provided by the Department of Public

Safety (“DPS”). The district court rightly rejected this argument. The DPS database did not

allow registrants to identify themselves as “Hispanic” until May 2010. As the Texas Director

of Elections conceded, the number of Hispanic registered voters is “exponentially higher”

than the DPS records would suggest. We cannot fault the district court for refusing to rely

on inaccurate data, particularly in light of the State’s failure to maintain accurate data.

Additionally, the State suggests that conveying the disparity in ID possession in

comparative percentages is misleading. See Frank, 768 F.3d at 755 n.3 (stating that

purveying data as a comparative percentage is a “misuse” that “produces a number of little

relevance to the problem”). Instead, the State believes a less deceptive method is to state

that 2% of Anglo, 5.9% of Hispanic, and 8.1% of African-American registered voters lack SB

14 ID. Even assuming the State is correct, conveying the disparities in the way the State

suggests does not change the analysis. The district court did not err in concluding that SB

14 disproportionately impacts Hispanic and African-American voters.

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the district court did not reversibly err in determining that SB 14 violates

Section 2 by disparately impacting minority voters.

First, the State disputes the propriety of using statistical analyses to

determine the racial composition of the No-Match List. Relying on Bartlett v.

Strickland, 556 U.S. 1, 17–18 (2009), the State argues that the Supreme Court

foreclosed using statistical analysis to determine the racial composition of a

group of voters. That is a mischaracterization. Strickland cautions against

adopting standards that require judges to make complicated, race-based

predictions in redistricting cases, a concern that is not implicated here. Id. It

is well within the district court’s purview to assess whether minorities are

disproportionately affected by a change in the law based on statistical

analyses. See, e.g., Operation Push, 932 F.2d at 410–11. Using accepted

statistical methodologies to estimate the racial composition of Texas voters

does not require the type of race-based predictions that the Court referenced

in Strickland. 46 Instead, this case is more akin to Operation Push, in which

this court approved using surveys and “independent statistical tests” to project

the impact on minorities of newly enacted voter registration procedures. Id.

Finally, the State argues for the first time on appeal that there is no disparate impact

where, as here, the gross number of Anglos without SB 14 ID—296,156 people—almost totals

the number of African-American, Hispanic, and “other” voters without SB 14 ID—312,314

people. Courts have never required the gross number of affected minority voters to exceed

the gross number of affected Anglo voters. See, e.g., League of Women Voters, 769 F.3d at

233; see also Frank, 768 F.3d at 753–54 (comparing the percentage of minority voters without

qualifying ID to the percentage of Anglos without such ID). We decline to address this

argument raised for the first time on appeal. See Leverette v. Louisville Ladder Co., 183 F.3d

339, 341–42 (5th Cir. 1999).

46These problematic predictions included inquiries like: “What types of candidates

have white and minority voters supported together in the past and will those trends

continue?” Strickland, 556 U.S. at 17.

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Second, the State relies on Strickland to argue that the canon of

constitutional avoidance militates against requiring the State to ensure that

voters of various races possess voter ID in equal measure. See 556 U.S. at 18.

The district court’s discriminatory effect finding, if affirmed, would do no such

thing, nor does Section 2 mandate the sort of remedy to which the State objects.

Section 2 merely prohibits the State from imposing burdens on minority voters

that would disproportionately abridge their ability to participate in the

political process. Cf. Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys.

Project, Inc. (“Inclusive Communities”), 135 S. Ct. 2507, 2524 (2015) (“Remedial

orders in disparate-impact cases should concentrate on the elimination of the

offending practice . . . . If additional measures are adopted, courts should

strive to design them to eliminate racial disparities through race-neutral

means. Remedial orders that impose racial targets or quotas might raise more

difficult constitutional questions.” (citation omitted)).

Finally, before our full court, the State refined its argument that our

holding that SB 14 violates Section 2 would make Section 2 “invalid as no

longer congruent and proportional to the Fifteenth Amendment.” Relatedly,

the State and dissenting opinions characterize the district court’s findings as

resting solely on a statistical disparity in SB 14 ID rates, rather than any

concrete proof that voters were denied the right to vote. These arguments miss

the mark. In particular, the constitutionality argument by the State is short

sighted and ignores the history and text of the Fifteenth Amendment. If the

State had its way, the Fifteenth Amendment and Section 2 would only prohibit

outright denial of the right to vote and overtly purposeful discrimination. Yet,

both the Fifteenth Amendment and Section 2 also explicitly prohibit

abridgement of the right to vote. U.S. CONST. amend. XV; 52 U.S.C. § 10301(a).

Application of the Gingles factors then determines whether any such

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abridgement is linked to social and historical conditions of discrimination such

that the abridgement has occurred “on account of race.” U.S. CONST. amend.

XV; 52 U.S.C. § 10301(a). The standards we apply here, and our manner of

applying them, show that Section 2’s protections remain closely tied to the

power granted Congress by the Fifteenth Amendment. 47

Regarding the district court’s findings, they rest on far more than a

statistical disparity. The district court’s lengthy opinion goes through the

evidence supporting its findings in great detail, and we will not repeat all of

that evidence here for the sake of clarity and brevity. See Veasey v. Perry, 71

F. Supp. 3d at 665, 667–77. However, a few examples show that the district

court relied on concrete evidence regarding the excessive burdens faced by

Plaintiffs in making its findings. This evidence personified the expert analysis

credited by the district court regarding SB 14’s discriminatory effect.

47 Additionally, we note that this court and many others have upheld the

constitutional validity of the Section 2 results test. See, e.g., Bush v. Vera, 517 U.S. at 990–

91 (O’Connor, J., concurring) (collecting cases assuming Section 2’s constitutionality); Jones,

727 F.2d at 373–74; United States v. Blaine Cty., 363 F.3d 897, 904–05 (9th Cir. 2004)

(holding that the court remains bound to the Supreme Court’s prior affirmance of Section 2’s

constitutionality and noting that “when the Supreme Court first announced the congruence-

and-proportionality doctrine in City of Boerne v. Flores, 521 U.S. 507 (1997), it twice pointed

to the [Voting Rights Act] as the model for appropriate prophylactic legislation” and that the

Supreme Court continues to rely on the Voting Rights Act as the baseline for congruent and

proportional legislation); Johnson v. Hamrick, 196 F.3d 1216, 1219 n.3 (11th Cir. 1999)

(reaffirming the constitutionality of Section 2). We previously held that “[c]ongressional

power to adopt prophylactic measures to vindicate the purposes of the fourteenth and

fifteenth Amendments is unquestioned” and “[o]n those occasions when the Court has

stricken enactments as exceeding congressional power under the enforcement clauses of the

fourteenth or fifteenth amendments, the congressional objective has usually deviated from

the central purposes of those amendments—to ensure black equality.” Jones, 727 F.2d at

373–74 (citations omitted). Section 2, as applied here, does not deviate from that purpose,

and Jones still binds us. Cf. Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S.

477, 484 (1989).

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(c) Evidence of the Burdens Imposed on Plaintiffs by SB 14

The individual Plaintiffs testified that they faced many specific burdens

in attempting to obtain SB 14 ID or vote. The district court found that “[t]he

Plaintiffs [d]emonstrate[d] the [i]mpact” of SB 14 along several axes, including:

(1) the difficulty of obtaining an EIC and voting with the proper ID because of

Texas’s poor implementation of this program; (2) the cost of underlying

documents necessary to obtain an EIC or other SB 14 ID; (3) difficulties with

delayed, nonexistent, out-of-state, or amended birth certificates due to

nontraditional births and errors on birth certificates; (4) long distances and

other travel issues that made getting to a registrar and DPS office problematic

for many Plaintiffs; (5) a strict disability exemption 48; and (6) a burdensome

alternative of voting absentee. See id. Some of the Plaintiffs faced difficulties

along multiple axes in attempting to get SB 14 ID and vote in person.

48 SB 14 exempts certain disabled persons from its photo ID requirements, if they

submit an application to be exempted with written documentation, including: (1) “a

statement in a form prescribed by the secretary of state that the applicant does not have a

form of identification acceptable” under SB 14’s codified provision, TEX. ELEC. CODE

§ 63.0101, and (2) documentation from either “the United States Social Security

Administration evidencing the applicant has been determined to have a disability,” or

documentation “from the United States Department of Veterans Affairs evidencing the

applicant has a disability rating of at least 50 percent.” TEX. ELEC. CODE § 13.002(i). The

district court found that Plaintiffs Carrier, Espinoza, Mendez, and Taylor “may qualify for

SB 14’s disability exemption,” but that “[t]hese Plaintiffs were not made aware of this

exemption when they went to DPS or other relevant offices” and that “[a]s of January 15,

2014, only 18 voters were granted a disability exemption in Texas.” Veasey v. Perry, 71 F.

Supp. 3d at 674 (citing TEX. ELEC. CODE § 13.002(i)). This fact evidences the increased

burden SB 14 places on Plaintiffs and others on the No-Match List because of the lack of

funding devoted to educating voters. Although this is not an overwhelming burden in and of

itself, the requirement and poor implementation provide one more obstacle for disabled

plaintiffs to clear in attempting to vote in person without SB 14 ID. In this case, some of the

Plaintiffs who could have used this exception were turned away at the polls and were never

made aware of it.

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First, the record evidence disproves the State’s claim that “the plaintiffs

have failed to identify a single individual who faces a substantial obstacle to

voting because of SB 14.” 49 For one thing, the district court found that multiple

Plaintiffs were turned away when they attempted to vote, and some of those

Plaintiffs were not offered provisional ballots to attempt to resolve the issue.

Id. at 668. One of those Plaintiffs, Floyd Carrier, “was well-known to the

election workers at his polling place, but was not offered a provisional ballot

and was not permitted to cast a vote.” Id. Floyd Carrier had the help of his

son in attempting to obtain SB 14 ID, but they faced an almost impossible

bureaucratic morass when they tried to get the required underlying

documentation. Due to these obstacles and the lack of training and education

about SB 14’s requirements, Floyd Carrier was completely prevented from

voting. See id. at 668 & n.268 (noting that throughout their efforts to obtain

underlying documentation and qualifying ID for Floyd Carrier, no one

informed the Carriers about the EIC).

Plaintiff Bates faced a similar problem when she reported to the polls, as

she was unaware that her existing ID was insufficient until she attempted to

vote in person. At that point, it was too late to cast an absentee ballot, and she

was not able to obtain SB 14 ID in time to cure her provisional ballot because

she could not afford to purchase her Mississippi birth certificate at its $42 cost

on her $321 fixed monthly income. Id. at 649 & n.115, 665. Plaintiff Gordon

Benjamin was not able to obtain an EIC at the DPS because he was unable to

get his Louisiana birth certificate for the hefty $81 fee online. Eventually, his

49 Before the panel that initially heard this case, the State made an even bolder

claim—that the Plaintiffs “failed to show that SB 14 prevented a single person from voting.”

This claim is demonstrably false, as the experiences of Plaintiffs Floyd Carrier and Sammie

Louise Bates show, see infra.

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sister was able to get his birth certificate in person on a trip through Louisiana,

but he was unable to make that trip before the 2013 elections. Id. at 671, 673.

Benjamin cast a provisional ballot that went uncured. Many more stories like

these proliferate in the pages of the district court’s opinion. Id. at 667–77.

Traveling to DPS offices to obtain EICs posed an additional obstacle for

many Plaintiffs. The district court found that four Plaintiffs rely almost

exclusively on public transportation. One of these Plaintiffs, Ken Gandy, faces

an hour-long, one-way trip to reach the nearest DPS office. See id. at 673.

Plaintiffs Estrada and Espinoza use family and friends for transportation, but

they each face “a 60-mile roundtrip ride to the nearest DPS station.” Id.

The State failed to contest any of this evidence, except to suggest that

these Plaintiffs could vote by mail. The district court did not clearly err in

finding that mail-in voting is not an acceptable substitute for in-person voting

in the circumstances presented by this case. 50 We are by no means criticizing

Texas for making mail-in voting available, as it represents an important bridge

for many who would otherwise have difficulty appearing in person. Instead,

we conclude that it is not the equivalent of in-person voting for those who are

able and want to vote in person. Mail-in voting involves a complex procedure

that cannot be done at the last minute. See id. at 688–90 (describing the

complex process of obtaining and submitting a mail-in ballot). 51 It also

deprives voters of the help they would normally receive in filling out ballots at

50 We do not opine on the effect, under Section 2, of other possible absentee balloting

arrangements, only on the inadequacy of mail-in voting in these circumstances to mitigate or

eliminate the discriminatory impact of SB 14.

51 For example, mail-in voting requires obtaining and submitting a correctly filled-

out and signed application to the early voting clerk in the voter’s county “on or before the

18th day before election day,” TEX. ELEC. CODE § 86.008(a), plus receiving an absentee ballot

by mail, filling out the ballot correctly, and ensuring the proper state party receives the ballot

on or before election day, id. §§ 86.004–.007, 86.008(b).

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the polls, which Plaintiff Naomi Eagleton cited as a reason why she prefers to

vote in person. Id. at 689.

Elderly plaintiffs may also face difficulties getting to their mailboxes,

like Plaintiff Carrier, who has to be driven to his mailbox because it is at the

local post office. Id. at 673. Seven of the Plaintiffs further testified they are

reluctant to vote by mail due to the increased risk of fraud because of people

who harvest mail-in ballots from the elderly. Id. at 676–77. The district court

credited expert testimony showing mail-in ballot fraud is a significant threat—

unlike in-person voter fraud. Id. at 639–41, 676. Finally, with mail-in voting,

voters lose the ability to account for last-minute developments, like candidates

dropping out of a primary race, or targeted mailers and other information

disseminated right before the election. Id. at 689. We discern no clear error

in the district court’s finding that mail-in voting for specific subsets of Texas

voters does not sufficiently mitigate the burdens imposed by SB 14.

The State further claims SB 14 has no disparate impact because the

State offers “free” EICs, and after SB 983, free underlying documentation to

Texas voters who were born in Texas. Yet, the record is replete with evidence

that the State devoted little funding or attention to educating voters about the

new voter ID requirements, resulting in many Plaintiffs lacking information

about these supposed accommodations until they were informed about them

during the course of this lawsuit. See, e.g., id. at 667–69, 676 (describing the

“insufficient” implementation of the EIC program, the fact that many Plaintiffs

did not know about the EIC or required voter ID until being turned away at

the polls, that one Plaintiff paid $22 for his birth certificate because he was not

told about the reduced-cost alternative then available, and other issues with

the implementation of SB 14). We find no clear error in the district court’s

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finding that the State’s lackluster educational efforts resulted in additional

burdens on Texas voters. 52 See, e.g., id. at 668.

We conclude that the district court did not clearly err in finding that SB

14 imposes significant and disparate burdens on the right to vote.

3. The Gingles Factors

We next consider the district court’s finding that SB 14 “produces a

discriminatory result that is actionable because [it] . . . interact[s] with social

and historical conditions in Texas to cause an inequality in the electoral

opportunities enjoyed by African–Americans and Hispanic voters.” Id. at 698.

The district court found Gingles factors 1, 2, 5, 6, 7, 8, and 9 probative. Id. at

697. Again, we conclude it was proper to utilize the Gingles factors to

determine whether conditions engendered by current and former state-

sponsored discrimination are sufficiently linked to the racial disparity in ID

possession under SB 14.

52 These lackluster efforts stand in stark contrast to those of other states whose voter

ID laws have thus far passed Section 2 scrutiny. See, e.g., N.C. State Conference of the

NAACP v. McCrory, ___ F. 3d ___, No. 1:13CV658, 2016 WL 1650774, at *19–20 (M.D.N.C.

Apr. 25, 2016) (cataloging the myriad educational efforts of North Carolina, including:

education at three elections before the law went into effect; having voters sign a ledger if they

lacked required ID; targeted mailings and outreach to those voters and over 200,000 others

on North Carolina’s no-match list; pre-paid return mailers to obtain assistance for voters

lacking required ID; and further updated advertisement, targeted mailing, and outreach

after a reasonable impediment exception was enacted); Common Cause/Ga. v. Billups, 504

F. Supp. 2d 1333, 1378–79 (N.D. Ga. 2007) (holding that the state of Georgia’s educational

efforts were crucial to whether Georgia’s voter ID law unduly burdened voters, that the court

initially granted a preliminary injunction in part due to lack of notice and education, and

finding that voters had since been educated after Georgia ran advertisements and directly

contacted voters who potentially lacked valid IDs to inform them about how to get valid ID

or vote absentee), vacated in part on other grounds, 554 F.3d 1340 (11th Cir. 2009). Contrary

to the State’s hyperbolic predictions, these different outcomes show the importance of the

fact-bound Section 2 analysis we employ here. It has resulted in the approval of laws less

burdensome and less discriminatory in effect than SB 14, while it holds the State of Texas

accountable for the strictest and perhaps most poorly implemented voter ID law in the

country. See, e.g., Veasey v. Perry, 71 F. Supp. 3d at 667–69, 676 (noting the many problems

with the implementation of SB 14).

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(a) Gingles Factor 1: History of Official Discrimination

As part of this “searching practical evaluation of the past and present

reality,” Gingles, 478 U.S. at 45 (citation omitted), the district court found that

Texas’s history of discrimination in voting acted in concert with SB 14 to limit

minorities’ ability to participate in the political process. We repeat Shelby

County’s admonishment that “history did not end in 1965,” 133 S. Ct. at 2628,

and emphasize that contemporary examples of discrimination are more

probative than historical examples. However, even long-ago acts of official

discrimination give context to the analysis, 53 and the district court credited

more contemporary examples of state-sponsored discrimination. Veasey v.

Perry, 71 F. Supp. 3d at 635–36, 700. One contemporary example is the district

court’s finding that “[i]n every redistricting cycle since 1970, Texas has been

found to have violated the VRA with racially gerrymandered districts.” Id. at

636 & n.23 (collecting cases). The district court further noted that, before it

was vacated along with preclearance by Shelby County, “a three-judge court

53 The district court cited many examples of Texas’s long history of state-sponsored

discrimination. See Veasey v. Perry, 71 F. Supp. 3d at 633–36. Less recent examples include

all-white primary elections that persisted from 1895 to 1944 despite the Supreme Court

attempting to curb the practice in 1927, literacy and secret ballot restrictions that persisted

until struck down in 1970, and poll taxes that were eventually struck down in 1966. Id. at

633–35. When the poll tax was made unconstitutional in 1964 by the Twenty-Fourth

Amendment, Texas attempted to separate federal and state ballots, so that the State could

still impose a poll tax for state ballots. That effort never succeeded because it was struck

down as unconstitutional after the Voting Rights Act was passed and applied to Texas.

Eventually, Texas ratified the Twenty-Fourth Amendment in 2009. In the wake of Texas’s

inability to retain poll taxes, the district court found that Texas passed a voter re-registration

requirement in 1966 that persisted in the form of purging the voter rolls after re-registration

was ruled unconstitutional in the early 1970s. Id. at 635. Ultimately, the purging practice

was enjoined under the preclearance portions of the Voting Rights Act. Id. While long-ago

history of discrimination is of limited probative value when considering whether the

Legislature acted with discriminatory intent, it cannot be ignored in the discriminatory effect

analysis, because even these seemingly remote instances of State-sponsored discrimination

continue to produce socioeconomic conditions that the district court found caused the racial

disparities in possession of SB 14 ID.

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had found that two of Texas’s 2011 redistricting plans violated the VRA.” Id.

at 636 n.23. In other words, the 2011 Texas Legislature was found to have

violated the Voting Rights Act by passing two redistricting plans that were

found to have a retrogressive or racially discriminatory impact in the same

legislative session that resulted in SB 14. 54

The district court found that these past instances of discrimination, all

the way through the 2011 legislative session that produced SB 14, were

relevant in part because each time, “the Texas Legislature relied on the

justification that its discriminatory measures were necessary to combat voter

fraud.” Id. at 636. The Texas Legislature relied on that same justification in

passing SB 14, even though the evidence showed that in-person voter fraud “is

very rare.” Id.

Even acknowledging that long-ago evidence of discrimination has less

force than more contemporary evidence under Shelby County, this factor and

other factors support the district court’s finding that SB 14 has a

discriminatory effect.

(b) Gingles Factor 2: Racially Polarized Voting

The district court relied primarily on the testimony of Dr. Barry Burden,

a political science professor, and Mr. George Korbel, an expert on voting rights,

54 Of course, the preclearance analysis differs from the Section 2 discriminatory effect

analysis. The State had the burden to show it should receive preclearance in Texas v. Holder,

whereas the Plaintiffs have the burden to show a discriminatory effect in the analysis we

employ here. Cf. Texas v. Holder, 888 F. Supp. 2d 113, 117 (D.D.C. 2012) (noting that the

preclearance analysis places the burden on the State to prove that a law does not have “‘the

effect of denying or abridging the right to vote on account of race’—i.e. . . . a retrogressive

effect”), vacated and remanded on other grounds, 133 S. Ct. 2886 (2013). One of the

dissenting opinions seeks to discredit this case because it was vacated after Shelby County

was decided. However, the opinion was not vacated on the merits and remains factually

relevant as a contemporary example of State-sponsored discrimination based on the finding

of a three-judge federal court.

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in concluding that racially polarized voting exists throughout Texas. The court

stated that “[r]acially polarized voting exists when the race or ethnicity of a

voter correlates with the voter’s candidate preference.” Id. at 637 (citing

Gingles, 478 U.S. at 53 n.21). For support, the district court noted that the gap

between Anglo and Latino Republican support is between 30 and 40 percentage

points, the Supreme Court has previously acknowledged the existence of

racially polarized voting in Texas, and that in other litigation, Texas has

conceded that racially polarized voting exists in 252 of its 254 counties. Id. at

637–38. The State did not contest these findings before the district court. 55

(c) Gingles Factor 5: Effects of Past Discrimination

Next, the district court appraised “[t]he extent to which members of the

minority group . . . bear the effects of discrimination in areas such as

education, employment, and health, which hinder their ability to participate

effectively in the political process.” Veasey v. Perry, 71 F. Supp. 3d at 696

(citing Gingles, 478 U.S. at 45). The disparity in education, employment, and

health outcomes between Anglos, African Americans, and Hispanics is

manifest by the fact that the 29% of African Americans and 33% of Hispanics

in Texas live below the poverty line compared to 12% of Anglos. Id. at 665.

The unemployment rate for Anglos is also significantly lower. At trial, the

court found that 6.1% of Anglos were unemployed compared to 8.5% of

Hispanics and 12.8% of African Americans. Id. at 666. Furthermore, 91.7% of

Anglo 25-year-olds in Texas have graduated from high school, compared to

55 For the first time in its reply brief before the panel that initially heard this case,

the State argued that the district court erred by examining whether race and voting patterns

exhibited a correlated, rather than causal, link. We generally do not consider arguments

raised for the first time in a reply brief. See Baris v. Sulpicio Lines, 932 F.2d 1540, 1546 n.9

(5th Cir. 1991). The State has not renewed this argument before our full court and we will

not consider it.

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85.4% of African Americans, and only 58.6% of Hispanics. Id. Anglos are also

significantly more likely to have completed college—33.7% of Anglos hold a

bachelor’s degree, compared to 19.2% of African Americans and 11.4% of

Hispanics. Id. Finally, the district court credited testimony that African

Americans and Hispanics are more likely than Anglos to report being in poor

health, and to lack health insurance. Id. at 666–67.

The district court found that the history of State-sponsored

discrimination led to these disparities in education, employment, housing, and

transportation. See id. at 636. For example, according to Dr. Vernon Burton,

a professor with an expertise in race relations, past State-sponsored

employment discrimination and Texas’s maintenance of a “separate but equal”

education system both contributed to the unequal outcomes that presently

exist. Id. Although Brown v. Board of Education, 347 U.S. 483 (1954),

mandated desegregated schools in 1954, Dr. Burton testified that Texas

maintained segregated schools until roughly 1970. Veasey v. Perry, 71 F. Supp.

3d at 666 & n.258. “As a result” of systemic discrimination and the disparities

in education, employment, housing, and transportation, the district court

found that “Hispanics and African–Americans make up a disproportionate

number of people living in poverty, and thus have little real choice when it

comes to spending money on anything that is not a necessity.” Id. at 636

(footnote omitted).

Importantly, the district court also found that “[t]hese socioeconomic

disparities have hindered the ability of African–Americans and Hispanics to

effectively participate in the political process. Dr. Ansolabehere testified that

these minorities register and turn[ ]out for elections at rates that lag far behind

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Anglo voters.” 56 Id. at 697. This is significant because the inquiry in Section 2

cases is whether the vestiges of discrimination act in concert with the

challenged law to impede minority participation in the political process. See

League of United Latin Am. Citizens, Council No. 4434 v. Clements, 999 F.2d

831, 866–67 (5th Cir. 1993) (en banc). The district court concluded in the

affirmative, and the State does not contest these underlying factual findings

on appeal.

The district court ultimately found:

SB 14’s voter ID requirements interact with social and historical

conditions in Texas to cause an inequality in the electoral

opportunities enjoyed by African–Americans and Hispanic voters

as compared to Anglo voters. In other words, SB 14 does not

disproportionately impact African–Americans and Hispanics by

mere chance. Rather, it does so by its interaction with the vestiges

of past and current racial discrimination.

Veasey v. Perry, 71 F. Supp. 3d at 698 (emphasis added).

Again, the State does not dispute the underlying data or methodologies.

Instead, the State objects that the district court must have found some

evidence that SB 14 directly caused a reduction in turnout. The State insists

that the district court erred by failing to ask whether SB 14 causes a racial

voting disparity, rather than a disparity in voter ID possession. We have never

required such a showing. Section 2 asks whether a standard, practice, or

procedure results in “a denial or abridgement of the right . . . to vote.” 52 U.S.C.

§ 10301(a). Abridgement is defined as “[t]he reduction or diminution of

56According to Dr. Ansolabehere’s expert report, 83 to 87% of Anglos of voting age and

84 to 88% of Anglo citizens of voting age in Texas are registered to vote, compared to 65 to

77% of Blacks of voting age and 75 to 80% of Black citizens of voting age, and 50 to 55% of

Hispanics of voting age and 75 to 80% of Hispanic citizens of voting age. Likewise, 41.8% of

Anglos voted in 2010 compared to 31.3% of Blacks and 22% of Hispanics. In 2012, 64.3% of

registered Anglos voted, compared to 45% of registered Blacks and 59.8% of registered

Hispanics.

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something,” Abridgement, BLACK’S LAW DICTIONARY (10th ed. 2014), while the

Voting Rights Act defines “vote” to include “all action necessary to make a vote

effective including, but not limited to, registration or other action required by

State law prerequisite to voting, casting a ballot, and having such ballot

counted.” 52 U.S.C. § 10101(e). The district court’s finding that SB 14 abridges

the right to vote by causing a racial disparity in voter ID possession falls

comfortably within this definition. Our case law dictates the same outcome.

See Operation Push, 932 F.2d at 409, 413 (affirming the district court’s finding

that a voter registration law violated Section 2 when it resulted in a 25%

difference in the registration rates between eligible black and white voters);

see also Chisom, 501 U.S. at 408 (Scalia, J., dissenting) (“If, for example, a

county permitted voter registration for only three hours one day a week, and

that made it more difficult for blacks to register than whites, blacks would have

less opportunity ‘to participate in the political process’ than whites, and

[Section] 2 would therefore be violated . . . .”).

For the same reason, we decline to require a showing of lower turnout to

prove a Section 2 violation. An election law may keep some voters from going

to the polls, but in the same election, turnout by different voters might increase

for some other reason. See Veasey v. Perry, 71 F. Supp. 3d at 655 (discussing

the effect of President Obama’s candidacy on voter turnout). That does not

mean the voters kept away were any less disenfranchised. Requiring a

showing of lower turnout also presents problems for pre-election challenges to

voting laws, when no such data is yet available. More fundamentally, no

authority supports requiring a showing of lower turnout, since abridgement of

the right to vote is prohibited along with denial. U.S. CONST. amend. XV; 52

U.S.C. § 10301(a). Illuminating this last point is the State’s answer at oral

argument to a question about whether its proposed Section 2 effects test would

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prohibit literacy tests (if they were not otherwise specifically prohibited) from

being imposed as a condition for voting. 57 The State contended that literacy

tests “would almost certainly” be struck down under its proposed Section 2

effects test—but only if plaintiffs could show a resulting “denial of equal

opportunity,” i.e., a “voter turnout disparity.” 58

We decline to cripple the Voting Rights Act by using the State’s proposed

analysis. Doing so would unmoor the Voting Rights Act from its history and

decades of well-established interpretations about its protections. See Allen,

393 U.S. at 565 (“The Voting Rights Act was aimed at the subtle, as well as the

obvious, state regulations which have the effect of denying citizens their right

57 In full, the exchange between a member of our court at the en banc oral argument

and the State’s counsel follows:

JUDGE: “[I]f literacy tests weren’t separately prohibited, would a

literacy test be invalidated by your proposed equal treatment test?”

STATE’S COUNSEL: “Insofar as literacy tests, you know, first of all,

that would obviously be separately banned under —”

JUDGE: “Beside[s] the separate ban.”

STATE’S COUNSEL: “I–I believe insofar as you’re putting aside the

separate banning, and insofar as you’re putting aside a purpose claim, I think

you would still ask, ‘is this a denial of equal opportunity?’ And in that scenario

you’d have to show a prima facie case, and it would almost certainly, in the

relevant jurisdictions that we’re talking about, have been able to show a voter

turnout disparity, ah, particularly, you know, Operation Push v. Mabus would

have been another case like this where you had legacy systems in place, and

under those legacy systems, there would have been liability.”

58 One of the dissenting opinions would require a showing of decreased turnout to

prevail on a discriminatory effect claim. This argument is unsupported by case law and

ignores the following points. First, such an approach would foreclose the ability to file pre-

enforcement challenges, which are particularly important now that preclearance is not

required. As the concurring opinion acknowledges, the Supreme Court suggested in Shelby

County that courts could “block voting laws from going into effect” through injunctive relief

under Section 2. See Shelby Cty., 133 S. Ct. at 2619. Second, turnout itself does not answer

the question of a particular voter being denied access: turnout of certain people might

increase while turnout of others decreases, leaving overall turnout the same; yet, those

denied the right to vote are still disenfranchised. Third, this argument also conflates

abridgement and denial: in previous times, some people paid the poll tax or passed the

literacy test and therefore voted, but their rights were still abridged.

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to vote because of their race.”); Chisom, 501 U.S. at 406 (Scalia, J., dissenting)

(“This new ‘results’ criterion [from the 1982 amendments to the Voting Rights

Act] provides a powerful, albeit sometimes blunt, weapon with which to attack

even the most subtle forms of discrimination.”). Instead, we will adhere to the

Supreme Court’s instruction to examine challenged laws and practices in an

intensely fact-based and local totality-of-the-circumstances analysis. See

Gingles, 478 U.S. at 36–38, 79.

Thus, while evidence of decreased turnout is relevant, it is not required

to prove a Section 2 claim of vote denial or abridgement. In this case, the record

contains evidence that minority voters generally turn out in lower numbers

than non-minority voters and that State-sponsored discrimination created

socioeconomic disparities, which hinder minority voters’ general participation

in the political process. Accordingly, the district court did not clearly err in

determining that the impact of past

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