throbber
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’
`
`
`
`

`
`
` 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-
`
`
`
`2
`
`
`

`
`
`
`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
`
`
`
`
`
`

`
`
` 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-
`
`
`
`
`
`
`
`
`
`6
`
`
`

`
`
`
`
`
` 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

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket