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In the United States District Court for the District of Columbia Case 1:12-cv-00128-RMC-DST-RLW Document 264 Filed 07/01/12 Page 1 of 67 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STATE OF TEXAS, Plaintiff, v. Case No. 1:12-cv-00128 (DST, RMC, RLW) ERIC H. HOLDER, JR., in his Official capacity as Attorney General of the United States, Defendant. PLAINTIFF’S RESPONSE TO THE ATTORNEY GENERAL’S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW AND REPLY IN SUPPORT OF PLAINTIFF’S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW Case 1:12-cv-00128-RMC-DST-RLW Document 264 Filed 07/01/12 Page 2 of 67 TABLE OF CONTENTS TABLE OF AUTHORITIES .............................................................................................. iv OPPOSITION TO THE ATTORNEY GENERAL’S ADDITIONAL PROPOSED FINDINGS OF FACT ......................................................................................................... 1 REPLY IN SUPPORT OF PROPOSED FINDINGS OF FACT ...................................... 13 I. SB 14 Will Not Deny Or Abridge The Right To Vote On Account Of Race, Color, Or Membership In A Language Minority Group ......................... 13 A. SB 14 Does Not Impose a Legally Significant Burden on Texas Voters ................................................................................................ 13 B. SB 14 Will Not Reduce Turnout or Have a Race-Based Effect .................. 14 C. Data Matching Efforts Do Not Indicate that SB 14 Will Have a Discriminatory Impact .............................................................................. 16 1. DOJ’s No-Match Lists Include Ineligible Persons and Voters Who Will Not Be Affected by SB14 ........................................................ 17 2. The DOJ Used Matching Procedures Biased Against Matching Female and Hispanic Voters ............................................................ 19 3. When Including Expired Licenses (Because They Have Moved Or Can Renew), Entries Of Deceased Persons (Because They Are Not Voters), And Excluding Suspense And Over 65s, The Number Of “No Matches” Is Small ..................................................................... 21 D. Survey Data Confirm that SB 14 Will Not Have a Disparate Impact on Any Group of Voters ........................................................................................... 22 II. SB 14 Was Not Enacted for the Purpose of Denying or Abridging the Right to Vote on Account of Race, Color, or Membership in a Language Minority Group ...................................................................................... 24 A. There Is No Evidence that SB 14 Was Passed for the Purpose of Denying or Abridging any Texas Citizen’s Right to Vote .................................................. 24 ii Case 1:12-cv-00128-RMC-DST-RLW Document 264 Filed 07/01/12 Page 3 of 67 B. The State’s Interest in Detecting and Deterring Voter Fraud Provides a Valid Justification for SB 14 ....................................................................... 27 1. Prosecuted Cases Do Not Represent the Entire Universe of Voter Fraud ................................................................................................. 30 2. The Perception of Voter Fraud Reduces Confidence in the Electoral System .............................................................................................. 32 3. SB 14 Will Prevent Certain Classes of Non-Citizens from Voting . 33 C. Alleged Procedural Departures Do Not Indicate a Discriminatory Purpose ............................................................................... 35 CONCLUSIONS OF LAW I. Senate Bill 14 Does Not Have the “Effect . of Denying or Abridging the Right to Vote on Account of Race or Color” or Because of Membership in a Language Minority Group ....................................................................................................... 35 A. DOJ Does Not Even Contend That SB 14 Has the Effect of “Denying” or “Abridging” the Right to Vote ........................................................................ 36 B. SB 14 Will Not Have the “Effect” of Denying or Abridging the Right to Vote Because The Social-Science Literature Shows that Voter-ID Laws Do Not Adversely Affect Turnout ............................................................................... 38 C. There Is No Racial Disparity in ID Possession .............................................. 39 D. Even if SB 14 Has a Disparate Impact on Racial Minorities, It Does Not Have the Effect of Denying or Abridging the Right to Vote “On Account of” Race or Color, or “Because” Of Membership in a Language-Minority Group .................................................. 41 E. Courts Have Consistently Upheld Laws with a Disparate Impact on Minorities Under Section 2 of the VRA, Which Is Worded Similarly to Section 5 ...................................................................................... 46 II. Senate Bill 14 Does Not Have the “Purpose . of Denying or Abridging the Right to Vote on Account of Race or Color” or Because of Membership in a Language Minority Group ....................................... 47 A. SB 14 Complies With the Fifteenth Amendment ............................................. 48 iii Case 1:12-cv-00128-RMC-DST-RLW Document 264 Filed 07/01/12 Page 4 of 67 B. DOJ Has No Evidence of Racially Discriminatory Purpose ............................ 50 CONCLUSION ................................................................................................................. 53 iv Case 1:12-cv-00128-RMC-DST-RLW Document 264 Filed 07/01/12 Page 5 of 67 INDEX OF AUTHORITIES Cases Allen v. State Bd. of Elec., 393 U.S. 544 (1969) ............................................................... 41 Beer v. United States, 425 U.S. 130 (1976) ................................................................. 48, 49 Brown v. Board of Education, 347 U.S. 483 (1954) ......................................................... 48 Burdick v. Takushi, 504 U.S. 428, 433-34 (1992) ............................................................. 41 Coleman v. Court of Appeals of Maryland, 132 S.Ct. 1327, 1336 (2012) ........................ 47 Crawford v. Marion County Election Bd, 553 U.S. 181 (2008) ................................. passim Engine Mfrs. Ass’n v. South Coast Air Quality Management Dist., 541 U.S. 246, 252 (2004) ............................................................................................................. 39 Georgia v. Billups, 554 F.3d 1340 (2009) ......................................................................... 15 Gomillion v. Lightfoot........................................................................................................ 57 Guinn v. United States, 238 U.S. 347 (1915), ....................................................... 53, 54, 55 Myers v. Anderson, 238 U.S. 368 (1915) ........................................................ 53, 54, 55, 56 Northwest Austin Mun. Utility Dist. No. One v. Holder, , 557 U.S. 193 (2009) ..................................................................................................................... passim Oregon v. Mitchell, 400 U.S. 112, 132 (1970) .................................................................. 47 Ortiz v. City of Philadelphia Office of City Com'rs Voter Registration, 28 F.3d 306, 308 (3rd Cir. 1994) ........................................................................................ 51 Perkins v. Matthews, 400 U.S. 379, 387–88 (1971) .......................................................... 41 Richardson v. Ramirez, 418 U.S. 24 (1974) ...................................................................... 46 Shelby County v. Holder, 679 F.3d 848 (D.C. Cir. 2012) ................................................. 48 v Case 1:12-cv-00128-RMC-DST-RLW Document 264 Filed 07/01/12 Page 6 of 67 Village of Arlington Heights v. Metropolitan Hous. Development Corp., 429 U.S. 252 (1977) ...................................................................................................... 57 Wesley v. Collins, 791 F.2d 1255 n.8 (6th Cir. 1986) ................................................. 46, 51 Rules and Statutes 28 C.F.R. § 51.54(b)-(c) .................................................................................................... 48 42 U.S.C. § 1973b(f)(2) ..................................................................................................... 40 42 U.S.C. §1973c(a) .......................................................................................................... 40 42 U.S.C. § 1973c(b) ......................................................................................................... 49 42 U.S.C. § 1973(c) ............................................................................................................. 1 42 U.S.C. § 1973(f-2) ........................................................................................................ 34 U.S. Const. art. XIV, §2 ........................................................................................ 46, 47, 48 Fed. R. Evid. 801(b) ............................................................................................................ 1 Fed. R. Evid. § 802 ..................................................................................................... passim 37 Tex. Admin. Code §§ 15.35, 15.59 .............................................................................. 18 Tex. Elec. Code § 14.001(a) .............................................................................................. 18 Tex. Elec. Code 14.021
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