# Marc Veasey v. Greg Abbott

> Court of Appeals for the Fifth Circuit · July 20, 2016 · 830 F.3d 216

URL: https://www.frixlaw.com/law-library/cases/4017568

## Case

- **Full name:** 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. 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
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** July 20, 2016
- **Citations:** 830 F.3d 216; 2016 WL 3923868
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Stewart, Jolly, Davis, Jones, Smith, Dennis, Clement, Prado, Owen, Elrod, Southwick, Haynes, Graves, Higginson, Costa
- **Nature of suit:** Civil Rights
- **Cited by:** 115 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4017568

## How later opinions describe it (automated extraction)

- concluding that because court found voter ID law has discriminatory effect under Voting Rights Act, “[pjlaintiffs will be entitled to the same relief they could access if they prevailed on [their] First and Fourteenth Amendment claims” and as ‘The rights and remedies are inter…
- holding that the Texas legislature’s unwonted procedure of designating the bill “as emergency legislation,” cutting debates short, passing it without the ordinary committee process, and suspending a two-thirds voting rule to get the bill passed, weighed in favor of a finding o…
- explaining that, where a district court’s fact-finding was premised on a legal error, the proper remedy is to vacate and remand “unless the record permits only one resolution of the factual issues” (quoting Pullman-Standard v. Swint, 456 U.S. 273, 292 (1982))
- noting that "[t]he impact that making the typically easier-to-prove effects test an equally powerful avenue of relief has on purpose claims can be seen from the drop in the number of discriminatory purpose claims brought in voting cases after the 1982 amendments to the Voting …

## Opinion text

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.
Case: 14-41127 Document: 00513601530 Page: 2 Date Filed: 07/20/2016

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

2
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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.
3
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No. 14-41127
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
4
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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
5
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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).
6
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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.”).
7
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No. 14-41127
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.
8
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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
9
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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.
10
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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).
11
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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”).
12
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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.
13
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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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No. 14-41127
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
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No. 14-41127
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.
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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).
30
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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).
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4017568. Public record. Not legal advice.