`
`
`
` Cite as: 574 U. S. ____ (2014)
`
` GINSBURG, J., dissenting
`
`
`SUPREME COURT OF THE UNITED STATES
`
`1
`
`_________________
` Nos. 14A393, 14A402 and 14A404
`_________________
`
` MARC VEASEY, ET AL.
`14A393
`
` v.
` RICK PERRY, GOVERNOR OF TEXAS, ET AL.
`
`ON APPLICATION TO VACATE STAY
`TEXAS STATE CONFERENCE OF NAACP
` BRANCHES, ET AL.
`
`
`v.
`NANDITA BERRY, TEXAS SECRETARY
` OF STATE, ET AL.
`
`
`
`ON APPLICATION TO VACATE STAY
` UNITED STATES v. TEXAS, ET AL.
`
`
`
`
`
`
`
`
`
`
`
`
`
`14A402
`
`14A404
`
`
`ON APPLICATION TO VACATE STAY
`
`[October 18, 2014]
`
`The applications to vacate the stay entered by the Unit-
`
`ed States Court of Appeals for the Fifth Circuit on October
`14, 2014, presented to Justice Scalia and by him referred
`to the Court are denied. The motion for leave to file the
`
`response to the applications under seal with redacted
`copies for the public record is granted.
`JUSTICE GINSBURG, with whom JUSTICE SOTOMAYOR and
`
`
`JUSTICE KAGAN join, dissenting.
`I would vacate the Fifth Circuit’s stay of the District
`
`
`Court’s final judgment enjoining the enforcement of Sen-
`ate Bill 14.
`
`This case is unlike the Ohio and North Carolina applica-
`
`tions recently before the Court concerning those States’
`
`
`
`

`

`2
`
`
`
` VEASEY v. PERRY
`
` GINSBURG, J., dissenting
`
`
`election procedures. Neither application involved, as this
`case does, a permanent injunction following a full trial and
`
`resting on an extensive record from which the District
`Court found ballot-access discrimination by the State. I
`would not upset the District Court’s reasoned, record-
`based judgment, which the Fifth Circuit accorded slim, if
`
`any, deference. Cf. Purcell v. Gonzalez, 549 U. S. 1, 5
`(2006) (per curiam) (Court of Appeals erred in failing to
`
`accord deference to “the ruling and findings of the District
`
`Court”). The fact-intensive nature of this case does not
`justify the Court of Appeals’ stay order; to the contrary,
`
`the Fifth Circuit’s refusal to home in on the facts found by
`the District Court is precisely why this Court should
`
`vacate the stay.
`
`Refusing to evaluate defendants’ likelihood of success on
`the merits and, instead, relying exclusively on the poten-
`tial disruption of Texas’ electoral processes, the Fifth
`
`Circuit showed little respect for this Court’s established
`stay standards. See Nken v. Holder, 556 U. S. 418, 434
`(2009) (“most critical” factors in evaluating request for a
`stay are applicant’s likelihood of success on the merits and
`
`whether applicant would suffer irreparable injury absent a
`stay). Purcell held only that courts must take careful
`account of considerations specific to election cases, 549
`U. S., at 4, not that election cases are exempt from tradi-
`
`tional stay standards.
`
`
`In any event, there is little risk that the District Court’s
`
`injunction will in fact disrupt Texas’ electoral processes.
`Texas need only reinstate the voter identification proce-
`dures it employed for ten years (from 2003 to 2013) and in
`five federal general elections. To date, the new regime,
`Senate Bill 14, has been applied in only three low-
`participation elections—namely, two statewide primaries
`and one statewide constitutional referendum, in which
`
`voter turnout ranged from 1.48% to 9.98%. The November
`2014 election would be the very first federal general elec-
`
`

`

`
`
`
`
`3
`
`
`Cite as: 574 U. S. ____ (2014)
`
` GINSBURG, J., dissenting
`
`
`tion conducted under Senate Bill 14’s regime. In all like-
`lihood, then, Texas’ poll workers are at least as familiar
`with Texas’ pre-Senate Bill 14 procedures as they are with
`the new law’s requirements.
` True, in Purcell and in recent rulings on applications
`involving voting procedures, this Court declined to upset a
`
`State’s electoral apparatus close to an election. Since
`November 2013, however, when the District Court estab-
`lished an expedited schedule for resolution of this case,
`
`Texas knew full well that the court would issue its ruling
`only weeks away from the election. The State thus had
`time to prepare for the prospect of an order barring the
`
`enforcement of Senate Bill 14. Of greater significance, the
`
`District Court found “woefully lacking” and “grossly”
`
`underfunded the State’s efforts to familiarize the public
`and poll workers regarding the new identification re-
`quirements. No. 13–cv–00193 (SD Tex., Oct. 9, 2014), pp.
`20, 31–32, 91, n. 398 (Op.). Furthermore, after the Dis-
`trict Court’s injunction issued and despite the State’s
`
`application to the Court of Appeals for a stay, Texas
`
`stopped issuing alternative “election identification certifi-
`cates” and completely removed mention of Senate Bill 14’s
`requirements from government Web sites. See Emergency
`Application to Vacate Fifth Circuit Stay of Permanent
`Injunction 11 and App. H. In short, any voter confusion or
`lack of public confidence in Texas’ electoral processes is in
`
`this case largely attributable to the State itself.
`Senate Bill 14 replaced the previously existing voter
`
`identification requirements with the strictest regime in
`the country. Op. 20–21. The Bill requires in-person vot-
`
`ers to present one of a limited number of government-
`issued photo identification documents. Ibid. Texas will
`
`not accept several forms of photo ID permitted under the
`
`Wisconsin law the Court considered last week.* For ex-
`——————
`*The District Court enjoined Wisconsin from implementing the law,
`
`the Seventh Circuit stayed the District Court’s injunction, and in turn,
`
`
`
`

`

`
`
`4
`
`
`
`VEASEY v. PERRY
`
` GINSBURG, J., dissenting
`
`
`ample, Wisconsin’s law permits a photo ID from an in-
`state four-year college and one from a federally recognized
`
`Indian tribe. Texas, under Senate Bill 14, accepts neither.
`Those who lack the approved forms of identification may
`obtain an “election identification certificate” from the
`Texas Department of Public Safety (DPS), but more than
`
`400,000 eligible voters face round-trip travel times of three
`hours or more to the nearest DPS office. Op. 18, 76.
`
`Moreover, applicants for an election identification certifi-
`cate ordinarily must present a certified birth certificate.
`
`Id., at 70. A birth certificate, however, can be obtained
`only at significant cost—at least $22 for a standard certifi-
`cate sent by mail. Id., at 22. And although, for voting
`purposes, reduced-fee birth certificates may be obtained
`for $2 to $3, the State did not publicize that option on
`DPS’s Web site or on Department of Health and Human
`
`Services forms for requesting birth certificates. Id., at 70.
`
`On an extensive factual record developed in the course
`
`of a nine-day trial, the District Court found Senate Bill 14
`
`irreconcilable with §2 of the Voting Rights Act of 1965
`because it was enacted with a racially discriminatory
`
`purpose and would yield a prohibited discriminatory
`result. The District Court emphasized the “virtually
`unchallenged” evidence that Senate Bill 14 “bear[s] more
`heavily on” minority voters. Id., at 133. In light of the
`
`“seismic demographic shift” in Texas between 2000 and
`2010, making Texas a “majority-minority state,” the Dis-
`trict Court observed that the Texas Legislature and Gov-
`ernor had an evident incentive to “gain partisan ad-
`vantage by suppressing” the “votes of African-Americans
`and Latinos.” Id., at 40, 48, 128. Cf. League of United
`
`Latin American Citizens v. Perry, 548 U. S. 399, 438–442
`(2006) (Texas Legislature acted with a “troubling blend of
`
`politics and race” in response to “growing” minority partic-
`——————
`this Court vacated the Seventh Circuit’s stay. See Frank v. Walker,
`
`ante, p. 1.
`
`

`

`
`
`5
`
`
`
` Cite as: 574 U. S. ____ (2014)
`
` GINSBURG, J., dissenting
`
`
`ipation). The District Court also found a tenuous connec-
`
`tion between the harms Senate Bill 14 aimed to ward off,
`and the means adopted by the State to that end. Between
`2002 and 2011, there were only two in-person voter fraud
`cases prosecuted to conviction in Texas. Op. 13–14. De-
`
`spite awareness of the Bill’s adverse effect on eligible-to-
`vote minorities, the Texas Legislature rejected a “litany of
`ameliorative amendments” designed to lessen the Bill’s
`
`impact on minority voters—for example, amendments
`permitting additional forms of identification, eliminating
`fees, providing indigence exceptions, and increasing voter
`
`education and funding—without undermining the Bill’s
`
`purported policy justifications. Id., at 35–37, 132 144–147.
`Texas did not begin to demonstrate that the Bill’s discrim-
`
`inatory features were necessary to prevent fraud or to
`
`increase public confidence in the electoral process. Id., at
`133; see also Id., at 113 (proponents of Bill unable to
`
`“articulate any reason that a more expansive list of photo
`IDs would sabotage” their efforts at detecting and deter-
`
`ring voter fraud). On this plain evidence, the District
`Court concluded that the Bill would not have been enacted
`absent its racially disparate effects. Id., at 133.
`
`The District Court further found that Senate Bill 14
`operates as an unconstitutional poll tax—an issue neither
`presented by any of the recent applications nor before the
`
`
`Court in Crawford v. Marion County Election Bd., 553
`U. S. 181 (2008) (upholding Indiana voter identification
`law against facial constitutional challenge). See Id., at
`186, and n. 4. Under Senate Bill 14, a cost attends every
`form of qualified identification available to the general
`public. Op. 140. Texas tells the Court that any number of
`
`
`incidental costs are associated with voting. But the cost at
`issue here is one deliberately imposed by the State. Even
`at $2, the toll is at odds with this Court’s precedent. See
`
`Harper v. Virginia Bd. of Elections, 383 U. S. 663 (1966).
`
`And for some voters, the imposition is not small. A voter
`
`

`

`6
`
`
`
` VEASEY v. PERRY
`
` GINSBURG, J., dissenting
`
`
`whose birth certificate lists her maiden name or misstates
`her date of birth may be charged $37 for the amended
`certificate she needs to obtain a qualifying ID. Texas
`voters born in other States may be required to pay sub-
`stantially more than that. Op. 71–74.
`
`
`The potential magnitude of racially discriminatory voter
`disenfranchisement counseled hesitation before disturbing
`
`the District Court’s findings and final judgment. Senate
`
`Bill 14 may prevent more than 600,000 registered Texas
`voters (about 4.5% of all registered voters) from voting in
`
`person for lack of compliant identification. Id., at 50–51,
`54. A sharply disproportionate percentage of those voters
`
`
`are African-American or Hispanic. Ibid.
`
`
`Unsurprisingly, Senate Bill 14 did not survive federal
`preclearance under §5 of the Voting Rights Act. A three-
`judge District Court unanimously determined that the law
`would have a prohibited discriminatory effect on minority
`voters. See Texas v. Holder, 888 F. Supp. 2d 113, 115, 138
`
`(DC 2012) (Tatel, J.). Although this Court vacated the
`preclearance denial in light of Shelby County v. Holder,
`
`570 U. S. ___ (2013), racial discrimination in elections in
`
`Texas is no mere historical artifact. To the contrary,
`Texas has been found in violation of the Voting Rights Act
`
`in every redistricting cycle from and after 1970. Op. 7.
`See, e.g., Texas v. United States, 887 F. Supp. 2d 133 (DC
`
`2012) (Griffith, J.). The District Court noted particularly
`plaintiffs’ evidence—largely unchallenged by Texas—
`
`regarding the State’s long history of official discrimination
`in voting, the statewide existence of racially polarized
`
`
`voting, the incidence of overtly racial political campaigns,
`
`the disproportionate lack of minority elected officials, and
`the failure of elected officials to respond to the concerns of
`
`minority voters. Op. 3–13, 122–126, 144–147.
`
`The greatest threat to public confidence in elections in
`this case is the prospect of enforcing a purposefully dis-
`criminatory law, one that likely imposes an unconstitu-
`
`

`

`
`
`
`
` Cite as: 574 U. S. ____ (2014)
`
` GINSBURG, J., dissenting
`
`
`tional poll tax and risks denying the right to vote to hun-
`dreds of thousands of eligible voters. To prevent that
`disenfranchisement, I would vacate the Fifth Circuit’s stay
`
`of the permanent injunction ordered by the District Court.
`
`7
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`
`
`
`