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
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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
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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
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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 ...... 18
Tex. Elec. Code 14.023(a)–(b) ...... 18
Tex. Elec. Code 16.032 ...... 18
Tex. Elec. Code § 31.006(a) ...... 31
Tex. Elec. Code § 64.012(a) ...... 28
Tex. Elec. Code §§ 82.001–004 ...... 13, 19
Tex. Elec. Code § 273.001(a) ...... 31
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Tex. Transp. Code § 521.041(b)(4) ...... 34
Tex. Transp. Code § 521.101(d) ...... 34
Tex. Transp. Code § 521.101(f-4) ...... 35
Tex. Transp. Code § 521.101(k) ...... 35
Other Authorities
Texas Senate (2011) Rule 5.14(a) ...... 3
William H. Riker and Peter O. Ordeshook, A Theory of the Calculus of Voting, 62 AM. POL. SCI. REV. 25 (1968) ...... 41
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INDEX OF AUTHORITIES
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OPPOSITION TO THE ATTORNEY GENERAL’S ADDITIONAL PROPOSED FINDINGS OF FACT
130. In 2005, the Texas House passed HB 1706, which required in-person voters to
present one form of photo identification or two forms of non-photo identification. JA
008939–41. DOJ’s assertion that the Legislature “did not investigate concerns raised
about the bill’s impact on minority voters” is conclusory and unsupported.
131. In 2007, the Texas House passed HB 218, which required in-person voters to present
a registration certificate and one photo ID or two non-photo IDs. JA 008132, 008135–37.
132. DOJ’s proposed finding mischaracterizes the cited evidence and lacks support in the
record. The author of HB 218 stated that she introduced the bill to verify voters’ identity
and keep ineligible voters, including but not limited to non-citizens, from voting. JA
007396–97, 007583. Exhibit 299, from the Houston Chronicle, is inadmissible to prove the truth of any matter asserted therein, including the fact that any quoted statement was actually made. See Fed. R. Evid. 801(b), (c), 802 (TA 2206, 2208).
133. HB 1706 and HB 218 included both photo ID and non-photo ID in the list of required identification. JA 008132, 8135–37; JA 0008936–37, 8939–41.
134. DOJ’s proposed finding is unsupported. The cited legislative record demonstrates that a MALDEF witness testified to the cost of certain documents, his belief that low-
income Latinos might not have a driver’s license, see JA 007454, and one House
member’s allegation that HB 218 would have a negative impact on elderly Latino voters.
JA 007651–55. These statements inadmissible hearsay, see Fed. R. Evid. 802 (TA 2208),
and do not establish “notice” of any purported fact or issue. Case 1:12-cv-00128-RMC-DST-RLW Document 264 Filed 07/01/12 Page 10 of 67
135. DOJ’s proposed finding regarding Senator Fraser’s knowledge is unsupported
because it cites a statement by his chief of staff responding to a question about her
personal knowledge. See U.S. FOF ¶ 135. Senator Duncan’s statement is inadmissible to prove the truth of the matter asserted, Fed. R. Evid. 802 (TA 2208), and irrelevant if offered for any another purpose. See TA 008214–15.
136. As President of the Senate, the Lieutenant Governor has the authority to appoint committees, refer legislation to committees, and render parliamentary rulings resolving disputes about order under the Senate Rules. K. Davis Depo. 16:9–20 (TA 2313). The
Lieutenant Governor does not set the Senate calendar. When a bill is reported from committee, it becomes part of the regular order of business, which prioritizes bills based upon the order in which they are reported favorably by a committee. The Lieutenant
Governor does not have the authority to change the order of bills in the Senate’s regular order of business. K. Davis Depo. 251:3–8 (TA 2332).
137. The Senate adopts rules at the beginning of each session. K. Davis Depo. 46:5–8
(TA 2320). For decades, the Senate has commonly considered bills out of order by suspending the regular order of business, which requires a vote of two-thirds of the members present and voting. K. Davis Depo. 42:5–11 (TA 2319), 254:19–255:5 (TA
2335-2336). Suspending the regular order of business by a two-thirds vote is a standard parliamentary practice, K. Davis Depo. 41:1–6 (TA 2318), used by the Senate to create an unofficial calendar system wherein each Senator has a role in determining the order of business. K. Davis Depo. 264:13–265:10 (TA 2342-2343). Unlike the House, the Senate does not have a calendar committee. See K. Davis Depo. 264:10–12 (TA 2342).
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138. Any calendaring mechanism is designed to provide notice of the order of business.
K. Davis Depo. 41:7–10 (TA 2318). Setting a special order, for instance, provides notice to the Senate of when a bill will be taken up on the calendar. K. Davis Depo. at 119:20–
23, 122:20–21, 123:3–6 (TA 2325-2327). Suspending the regular order of business does not itself provide notice of when a bill will be considered. Senate Rules also require members to provide notice of their intent to suspend the regular order of business and consider a bill or resolution out of order. See Rules of the Texas Senate (2011) Rule
5.14(a) (TA 2764). Until the 130th calendar day of the 140-day session, the Senate cannot consider a bill or resolution out of order until the second day it is posted on the
Intent Calendar. Id. Rule 5.14(b) (TA 2764).
139. The proposed finding is unsupported because the cited newspaper article (DE 299) is inadmissible hearsay. Fed. R. Evid. 802 (TA 2208).
140. Texas denies that Senator Uresti’s ethnicity or the demographics of his district are relevant. All Senate Democrats opposed HB 218. See JA 008321.
141. The proposed finding is incomplete. Senator Fraser’s motion to suspend the regular order of business to take up HB 218 on second reading passed by a vote of 19 to 9, with
Senators Hegar, Uresti, and Whitmire recorded as absent. See JA 008320.
142. Rather than support DOJ’s statement that Senator Whitmire convinced the
Lieutenant Governor to verify the vote to suspend, the record indicates that the
Lieutenant Governor instructed the secretary to call the roll a second time, and the Senate voted on the motion to suspend a second time. See JA 008314–15. The Lieutenant
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Governor had no duty to call a second vote on the motion to suspend. Uresti Depo. 68:4–
22 (TA 2515).
143. The motion to suspend failed on the second vote by a party-line vote of 20 to 11. JA
008315, 8321. Thus 11 Senators prevented consideration of a bill that had passed the
House and was supported by 20 Senators.
144. Texas disputes the statement that the Senate “adopt[ed] changes to the Senate’s two- thirds rule.” The 2009 Senate Rules provided that a voter identification bill reported by the committee of the whole could be set as a special order by a majority vote. See Rules of the Texas Senate (2009) Rule 5.11(d) (TA 2761). Like all Senate Rules, the 2009 rules were adopted by a majority vote. See K. Davis Depo. 46:5–8 (TA 2320).
145. Texas does not dispute the facts stated in this paragraph.
146. The characterization of support for “the two-thirds rule” and Rule 5.11(d) as
“singular exemption” are unsupported by the cited source.
147. This proposed finding is unsupported. Both the newspaper article and the statement quoted therein are inadmissible hearsay. Fed. R. Evid. 802 (TA 2208).
148. This proposed finding is unsupported. Ms. Davis disclaimed any representation that only two categories of legislation had been set as a special order by majority vote. See K.
Davis Depo. 57:14–22, 59:6–17 (TA 2322, 2324).
149. This proposed finding is unsupported. Both the newspaper article and the statement quoted therein are inadmissible hearsay. Fed. R. Evid. 802 (TA 2208.)
150. Texas does not dispute the facts stated in this paragraph.
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151. The proposed finding is unsupported. Referral to the Senate committee of the whole
does not “allow[] for expeditious consideration and voting straight to final passage.” US
FOF ¶ 151. When a bill is voted out of the committee of the whole, it becomes part of
the regular order of business. The Senate must consider the bill on second and third
reading before it is passed and sent to the House. K. Davis Depo. 192:16–22 (TA 2331).
152. The proposed findings are unsupported. Ms. McCoy did not testify that “the Senate
did not investigate or address” concerns about SB 362. Two staff members’ testimony
that they were not aware of any specific analysis does not establish the broader statement
that “Senate staff were unaware of any analysis having been conducted.” The statement
regarding the SOS’s analysis of SB 362 (citing Ex. 566 at 9) is unsupported. Exhibit 566
does not have nine pages, nor does it support the stated proposition.
153. The Senate considered SB 362 by a special order vote of 19 to 12. JA 004205. SB
362 passed the Senate by a vote of 19 to 12. JA 005421. The statement that “[a]ll eight
members of the Senate who are minorities voted against the bill” is not supported by the
cited authority (Ex. 566 at 9–10), as Exhibit 566 does not have a ninth or tenth page. The
statement also omits the material fact that all twelve Democrats in the Senate voted
against SB 362 in a party-line vote. The statement regarding the likelihood of a vote to
suspend the regular order of business is speculative and unsupported.
154. The statement regarding grassroots supporters of SB 362 mischaracterizes the cited
source, which included questions that called for speculation as well as specific testimony
that SB 362 was intended to prevent illegal voting by all unauthorized voters—not just
non-citizens. See Smith Depo. 103:21–104:12 (TA 2506-2507).
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155. The statement about a “new legislative coalition” is unsupported because the
Kousser report (Ex. 548) is inadmissible hearsay. Fed. R. Evid. 802 (TA 2208). The statement regarding ID possession misrepresents the source, which expressed an assumption, not a statement based on facts. Smith Depo. 154:1–156:20, 196:19–198:2.
156. Both proponents and opponents discussed their respective positions, but the proposed finding is unsupported by the citation to McGeehan’s testimony.
157. Texas does not dispute the factual statements in this paragraph.
158. The statement that Representative Smith “sought approval” of his “back of the envelope” calculation from Speaker Straus is unsupported. Representative Smith thought he might have shared a presentation with a member of the Speaker’s staff before presenting it to groups outside the Legislature. See Smith Depo. 162:7–16 (TA 2508-
2509).
159. Texas does not dispute the factual statements in this paragraph.
160. The proposed finding is unsupported. Both the cited web page (DE 499) and the statements therein are inadmissible hearsay. Fed. R. Evid. 802 (TA 2208).
161. The proposed finding that there was a “filibuster” is unsupported. SB 362 failed to pass the House in 2009 because Democrats engaged in “chubbing” (Ellis Depo. 70:18–
71:5 (TA 2364-2365), or debating uncontroversial bills on the local and consent calendar for just under the maximum permissible time to prevent the House from reaching the major state calendar, which ultimately prevented SB 362 from coming to the floor. The
House amended its rules in 2011 to limit the practice of chubbing. The amendment was adopted by a vote of 143-0. Anchia Depo. 123:2–126:23 (TA 2221-2224).
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162. Except for the statement that Representative Smith made presentations to
Republican Party groups, the proposed findings are unsupported.
163. The proposed finding mischaracterizes the testimony. Ms. McGeehan testified that
“at least two of [the referrals] involve allegations of voter impersonation.” JA 003175.
164. The statement that “Sen. Fraser was prepared when a wave election cleared remaining procedural hurdles to passage” is unsupported because the Kousser report (DE
548) is inadmissible hearsay, and the statement lacks foundation. Fed. R. Evid. 802 (TA
2208).
165. Texas does not dispute the factual statements in this paragraph.
166. The proposed findings are unsupported and mischaracterize the record. The filed version of SB 14 included six forms of photo ID. See JA 001942. The question to
Senator Fraser was whether the forms of identification were “the least restrictive options.” JA 000097. Senator Fraser clarified that “the type of identification that is most readily available appears to be a driver’s license.” JA 000098. This statement is confirmed by evidence of over 17 million unexpired, non-duplicative driver’s licenses issued to non-deceased persons. Ansolabehere Report ¶ 40.
167. The proposed finding is speculative and unsupported. Ms. McCoy did not testify as to why Senator Fraser “excluded non-photo ID from SB 14.”
168. The proposed finding mischaracterizes the evidence. The Senate Parliamentarian explained the difference between a special order and a motion to suspend the regular order of business. See K. Davis Depo. 49:12–22 (TA 2321).
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169. The proposed findings are unsupported. The statement regarding votes against the
Senate Rules resolution does not cite any authority, and the statement that any senator was “preferred by racial and ethnic minorities” lacks foundation. The citation to Senator
Lucio’s statement indicates that it was made in 2009, not in 2011.
170. The statement about the Texas Constitution is unsupported and inadmissible under
Fed. R. Evid. 1002. The statement about the prohibition on hearings during the first 30 days of the session is inaccurate because it omits the alternative method of suspending the constitutional rule. See K. Davis Depo. 178:25–179:6 (TA 2329-2330).
171. The proposed finding is incomplete. It omits the material fact that designation of emergency items is “a common event,” and legislators would like to have all of their bills designated as emergency items. See Armbrister Depo. 213:12–214:7 (TA 2243-2244).
172. The proposed finding misrepresents the testimony of Mr. Brunson, who stated that he did not recall whether he had any such conversation.
173. Texas does not dispute the factual statements in this paragraph.
174. The proposed finding is incomplete and partially unsupported. Senator Van de Putte wrote a letter to Senator Duncan (DE 352) expressing concerns about the consideration of
SB 14 and copying the “U.S. Department of Justice, Voting Rights Section.”
175. Texas does not dispute the factual statement in this paragraph.
176. The proposed findings are irrelevant; a staff member’s opinion about legislative testimony does not tend to prove or disprove any issue in this case.
177. Texas does not dispute the factual statements in this paragraph.
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178. With the exception of the statement regarding Ms. McGeehan’s understanding of
Senator Davis’s remarks, the proposed finding is unsupported.
179. The statement regarding Senator Williams’s request for a “report on the status of the
[Election Division]’s analysis” is unsupported to the extent it implies that Senator
Williams asked Ms. McGeehan to provide a report at any time after the debate.
180. With the exception of the statement regarding the date of the request or the number
of rounds of analysis, the proposed findings are unsupported.
181. Texas does not dispute the factual statements in this paragraph.
182. The proposed findings are potentially misleading in their omission of Ms.
McGeehan’s testimony that employees of the Secretary of State’s office were seeking
guidance on matching criteria. See McGeehan Depo. 186:5–13 (TA 2437).
183. The statement that conducting any analysis “would have been a ‘relatively easy’
task” mischaracterizes Ms. McGeehan’s testimony. The characterization of analysis as
“relatively easy” was made by Defendant’s counsel, and Ms. McGeehan cautioned, “Our
IT department might not agree with that.” McGeehan Depo. 191:13–17 (TA 2438).
Indeed, the State told DOJ in January 2012 that comparing racial data from DPS and SOS
records was fraught with “difficulties,” JA 001357, and cautioned that it was “impossible
to generate fully reliable data.” JA 001355.
184. Texas denies that there is any particular significance to the phrase “I am not
advised.” See McCoy Depo. 200:20, 201:1–2 (TA 2429-2430) (“Typically, when a senator says that, it means they don’t know.”). The proposed finding omits the fact that
Senator Fraser referred to data from States that had implemented photo ID requirements,
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see JA 000096–97, including data from Indiana and Georgia confirming that minority turnout increased after those States implemented photo-ID laws.
185. This paragraph is not supported by the cited portion of the record.
186. The record indicates that 41 amendments were proposed in the Senate. JA 001264.
187. The statement that SB 14 passed “over the unified opposition of all Senators preferred by racial and ethnic minorities present” is vague, misleading, and unsupported.
SB 14 passed the Senate on a party-line vote of 19 to 11. JA 001265.
188. The citations do not support the proposed finding, and the term “unusual” is vague.
189. The quotation is accurate, but the source is inadmissible hearsay. Fed. R. Evid. 802.
190. The statement that “Senate bill supporters and staff are unaware of basic facts related to SB 14” is vague, conclusory, and unsupported.
191. Texas does not dispute the factual statement in this paragraph.
192. The statement that “the Speaker could hand-pick each member of the Select
Committee” mischaracterizes the cited testimony and is unsupported to the extent it implies that the Speaker “hand-picked” the members of the Select Committee.
193. Representative Smith’s statement is not relevant. The statement that “supporters viewed negotiations with opponents as ‘not relevant’” is unfounded, speculative, and unsupported. The Kousser report is inadmissible hearsay under Rule 802.
194. The proposed finding mischaracterizes the testimony of Representative Peña. The cited portions of his deposition do not support the proposition that supporters of SB 14 had decided not to take any amendments. The record shows that 12 amendments were adopted in the House, including 10 offered by minority legislators (JA 2088-2159)
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195. A MALDEF representative testified that voter ID requirements could adversely affect minority voters; however, the broader assertion that the testimony described was
provided by “expert witnesses” is unsupported. The statement that the Select Committee
“did not hear any expert testimony on voter fraud in Texas” is vague and contrary to the legislative record. See JA 001824–40; JA 001840–56.
196. The proposed finding is misleading in its failure to mention that supporters of SB 14 contradicted the cited testimony about undocumented immigrants. See, e.g., JA 1507
(Rep. Peña) (“There really aren’t hoards of illegal immigrants voting.”).
197. The proposed finding is unsupported to the extent it implies that Rep. Harless knew
about Sen. Williams’s request.
198. The proposed finding is inaccurate. Rep. Harless answered Rep. Anchia’s questions
about voter education and materials in languages other than English. See JA 001976–77.
199. The proposed finding mischaracterizes the record. In addition to the experience of other States, Representative Harless cited concerns expressed by the public and stated that “[o]nly a true photo ID bill can deter and detect fraud at the polls and can protect the public’s confidence in the election.” JA 001978. Representative Anchia’s question did not ask about other states’ laws. The cited portion of Representative Bonnen’s deposition does not demonstrate a “lack of knowledge” of other state laws. Bonnen was asked about the differences between SB 14 and SB 362. See Bonnen Depo. 189:13–18 (TA 2250).
There is no evidentiary support for the inference that either Harless or Bonnen lacked knowledge of or failed to acknowledge differences between SB 14 and other States’ voter
ID laws.
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200. Sixty-three amendments were offered in the House, ten of which were withdrawn.
See JA 002088–59. Statements that amendments would “mitigate the bill’s impact on minority voters” are unfounded and inadmissible hearsay. Fed. R. Evid. 802.
201. The proposed finding mischaracterizes the record. Rep. Harless’s statement regarding “a federal issue to be decided by the federal courts” responded to a question whether she believed that the Voting Rights Act is still necessary. JA 002118. Harless did not “refus[e] to state specifically that SB 14 applied equally to minority and non- minority voters.” Harless was asked whether SB 14 applied to minorities. She responded that SB 14 “applies to everyone equally across the state,” JA 002118, and “It applies to
all Texans.” JA 002119. Rep. Harless’s deposition testimony about the Voting Rights
Act is mischaracterized by the proposed finding, and the quoted statements are irrelevant
to the issues before the Court. See Harless Depo. 170:1–21 (TA 2373).
202. The proposed finding is ambiguous. The conference committee report indicates that
a Senate provision allowing a provisional ballots to be counted if the voter executed an
affidavit of indigency after the election was not included by the conference committee.
203. This statement is unsupported, speculative, and conclusory. Texas agrees that
minority legislators supported SB 14, including Representatives Aaron Peña, Jose
Aliseda, John Garza, Dee Margo, James White, and Stefani Carter. Anchia Depo. 101:1-
3 (TA 2216).
204. The proposed finding is unsupported except to the extent it states the content of the
conference committee report.
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205. The proposed findings are unsupported. There is no evidence that the cited draft
(DE 112) was prepared by or for Governor Perry. The cited internet page (DE 327) and any statements therein are inadmissible hearsay. Fed. R. Evid. 802 (TA 2208).
206. The factual statement in this paragraph is irrelevant to the issues in this case.
REPLY IN SUPPORT OF PROPOSED FINDINGS OF FACT
I. SB 14 WILL NOT DENY OR ABRIDGE THE RIGHT TO VOTE ON ACCOUNT OF RACE, COLOR, OR MEMBERSHIP IN A LANGUAGE MINORITY GROUP.
A. SB 14 Does Not Impose a Legally Significant Burden on Texas Voters.
266. To the extent there is any cost associated with obtaining an election identification
certificate, it applies to all voters because all voters under 65 years old who are not
disabled and do not possess another form of qualifying identification must obtain the
requisite supporting documentation. To the extent a voter already has supporting
documentation, the affiliated cost has already been paid. Cf. U.S. FOF ¶¶ 6–7, 14B, 19A.
267. Voters who qualify for an exemption under SB 14 must secure that exemption in
order to vote in person without providing photo ID. See JA 003102–03. Voters who are
over 65, disabled, or will be out of state during the voting period are also eligible to vote
early by mail. See Tex. Elec. Code § 82.002 (TA 835).
268. The ability to vote early by mail is relevant because voting by mail does not require a photo ID. See Texas FOF ¶ 11; contra US FOF ¶¶ 11, 41D.
269. SB 14 does not bar the use of expired IDs. It expressly permits the use of IDs that have expired within 60 days. JA 003110–11. Cf. U.S. FOF ¶ 13A.
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270. DPS agreed with the recommendation to expand the list of secondary documents for election identification certificates. Davio Depo. 60:17–61:13 (TA 2301-2302). The assertion that DPS “acknowledges that non-governmental documents are verifiable” is unsupported. U.S. FOF ¶ 19C; cf. Davio Depo. 63:9–13 (TA 2303). Nor is there support for the claim that DPS “‘routinely’ issues IDs without photos.” U.S. FOF ¶ 23E.
271. In some parts of Texas, individuals must travel long distances to obtain many basic
services. See Davio Depo. 151:25–152:6 (TA 2304-2305); cf. US FOF ¶ 19H. The
DPS’s witness testified that she could not recall any complaints about the distance required to reach a DPS office. Davio Depo. 224:15–19 (TA 2306); cf. id. 226:9–10. DE
283 is inadmissible hearsay. Fed. R. Evid. 802 (TA 2208). DOJ’s statement that DPS will not provide satellite or mobile services, US FOF ¶ 20B, is unsupported.
272. Hiring 266 additional employees will increase DPS staff by roughly 20 percent.
Davio Depo. 225:3–8 (TA 2307); cf. US FOF ¶¶ 19L, 20A. DPS has hired 243
employees, who are scheduled to begin work on September 1, 2012. (TA 2852.)
273. Defendant has not identified a single eligible, registered Texas voter who lacks a
required form of ID and will not be able to obtain an election identification certificate.
Any statement to the contrary, see US FOF ¶ 23A, is not supported by the record. Texas has not conceded that any data match accurately represents a set of actual Texas voters who will be adversely affected by SB 14. Contra US FOF ¶ 23B.
B. SB 14 Will Not Reduce Turnout or Have a Race-Based Effect.
274. The Legislature considered evidence that voter-ID laws did not reduce turnout in
Georgia or Indiana. Contrary to DOJ’s assertion, US FOF ¶ 30, this evidence included
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data from both the 2008 presidential election and the 2010 midterm elections in Georgia and Indiana, both of which showed increased turnout among minority voters after voter
ID laws were implemented. See JA 000126.
275. Common Cause/Georgia v. Billups, U.S. FOF ¶ 30, does not disprove the legislative testimony that the Georgia Secretary of State’s office had “not seen one individual who can actually say that they have been adversely impacted by this law or that they would have an undue burden placed upon them.” JA 006100. The cited passage of Billups
merely addressed the standing of voters without photo ID. See Billups, 554 F.3d at 1351–
52. The court did not determine, nor does the cited passage establish, that any voter had
been adversely impacted or unduly burdened. Cf. JA 000123–24.
276. DOJ’s claim that the 2008 Alvarez study “was adjusted during the referee process,”
US FOF ¶ 28, is unfounded. The article DOJ cites does not include any analysis or
findings about the racial impact of voter ID requirements. Dr. Ansolabehere testified that
he has no reason to disagree with the conclusion that strict ID laws do not have a racially
discriminatory impact. Anso. Depo. 208:16–22 (TA 2232.) Dr. Ansolabehere testified
he has no opinion about whether Hispanic voters will be disproportionately affected by
SB 14. Anso. Depo. 253:7–254:11 (TA 2227). Dr. Ansolabehere testified he has no
opinion about whether African-American voters will be disproportionately affected by
SB 14. Anso. Depo. 255:2–10 (TA 2227).
277. DOJ’s own statements indicate that to the extent SB 14 has any disproportionate
impact on Hispanic voters (which it will not), it will be on account of indigency, not
language minority status. U.S. Statement in Support (Doc. 69) at 6 (“This cost [of
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obtaining documents] will in turn have a disparate impact on Hispanic voters who lack
this documentation because Hispanic residents of Texas experience poverty at far greater
rates than Anglos.”); cf. W. Davis Depo. 36:21–37:18 (TA 2353-2354.)
C. Data Matching Efforts Do Not Indicate that SB 14 Will Have a Discriminatory Impact.
278. DOJ has identified what it calls a VRNID set of 1,501,977 “definitive non-matches” or registered voters without state identification. (US FOF ¶¶ 33A-D, 54.) DOJ has further identified a list of 1,893,143 registered voters that “cannot be definitively matched to a DL/ID or LTC record valid for purposes of SB 14.” US FOF ¶ 54. These are referred to collectively as the “DOJ No Match Lists.”
279. As an initial matter, the DOJ’s expert Dr. Ansolabehere admits that he did not conduct any analysis on the possession of the federal forms of identification that meet SB
14’s requirements. Indeed, Dr. Ansolabehere testified that it would have been “great” to utilize federal photographic identification databases but that DOJ would not make that information available. See Ansolabehere Depo. (TA 2227) (“We were not allowed access to those [federal] databases.”). DOJ did not ask him to determine the actual number of voters who might actually be affected by SB 14, but rather limited his charge to determining how many voters in the SOS database did not match exactly to the DPS database. See Anso. Depo. (TA2227) (“I was not asked to weigh in on the question of whether or not they would be able to vote.”). Thus the DOJ has provided no evidence regarding the number of individuals registered to vote who actually lack SB 14- acceptable identification. (Ansolabehere Report ¶ 15.)
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280. There is no evidence to support the United States’ assertion that “Hispanic and black voters are nearly twice as likely as Anglo voters to lack PVID needed to cast a ballot in person if SB 14 is implemented.” US FOF ¶ 71B. DOJ’s no-match lists are massively overinclusive, and the process DOJ used suffers from debilitating defects. See TA 883.
DOJ provides no support for the credibility, accuracy, or superiority of its data matches.
See US FOF ¶¶ 33I–N. Texas disputes all findings and conclusions based on DOJ’s no match lists. See, e.g., US FOF ¶¶33A–N.
1. DOJ’s No-Match Lists Include Ineligible Persons and Voters Who Will Not Be Affected by SB14.
281. Incredibly, the DOJ made no effort to exclude individuals who are ineligible to vote
from its no-match lists. Sager Supplemental Report ¶¶ 12, 14, 19 (TA 887-890). DOJ’s
own expert admits that the DOJ No Match Lists include over 50,000 persons who are
deceased. (Anso Rebuttal Decl. ¶ 40 (DE 545); see also Sager Supplemental ¶ 12 (TA
887). Yet DOJ contends, in the face of his own expert’s report, that every voter in the
State’s VR database is necessarily a “valid voter.” US FOF ¶ 65D.
282. DOJ’s no-match lists include individuals who are not eligible to vote because they
have moved out of Texas. By not allowing voter registration entries to match to expired
Texas drivers’ licenses, DOJ counts as a “No Match” any voter who moved out of the
state and whose license has expired. (Sager Supplemental ¶ 14) (TA 887)
283. DOJ has potentially included non-citizens who are registered to vote on its No
Match Lists by removing non-citizens from the License to Carry (LTC) database before
matching. (Sager Supplemental ¶ 19) (TA 890.) Such an exclusion is nonsensical. Either
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the individual has naturalized and may vote with their LTC, or the individual remains a non-citizen, is ineligible, and should not be counted as an “affected voter.” (Id.)
284. Finally, DOJ made no effort to analyze those entries on the No Match Lists belonging to voters in “suspense” status. Voters in suspense status have had their voter certificates returned as undeliverable and are subject to cancellation if they do not vote in two consecutive federal general elections. See Tex. Elec. Code §§ 14.001(a), 14.021,
14.023(a)–(b), 16.032 (TA 2171, 2172, 2174, 2178); see also Ingram Depo. 23:9–25:5
(TA 2407-2409).
285. DOJ’s VRNID includes numerous individuals who have or have had Texas state ID.
By excluding expired licenses before matching, DOJ treats individuals who have previously accessed DPS for photo ID as burdened by SB 14 when these individuals have
demonstrated the ability to obtain photo identification when necessary.
286. Furthermore, by excluding those holding licenses expired less than two years, DOJ
has excluded individuals with a right to renew by mail, by telephone, or online. Sager
Supplemental ¶ 16; 37 Tex. Admin. Code §§ 15.35, 15.59 (TA 2209-2210). Registered
voters whose ID is expired by less than two years face the same renewal process as voters
with active ID. There is no justification for treating this set of individuals differently.
287. DOJ’s exclusion of expired identifications resulted in over 400,000 additional non-
matches in its lists. Ansolabehere Rebuttal ¶ 39 (417,319); Sager Supplemental ¶ 27
(468,775) (TA 892).
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288. The DOJ’s No Match Lists also include individuals who are disabled or over the age of 65, who may vote by mail without photo ID. See Tex. Elec. Code §§ 82.001–004 (TA
000835–36). SB 14 imposes no burden on these voters.
2. The DOJ Used Matching Procedures Biased Against Matching Female and Hispanic Voters.
289. DOJ’s match protocol had 3 steps: (1) matching SSN9, (2) matching first name, last
name, and date of birth, and (3) matching first name, last name, middle name, and date of
birth. Ansolabehere Report ¶ 24 (DE 545).
290. The SOS VR database includes entries with no social security information, entries
with four-digit social security information (SSN4), and entries with nine-digit social
security information (SSN9). Approximately 55% of the entries do not have full SSN9
information. See Sager Supplemental ¶ 17 n.6 (TA 889); Sager Deposition Exhibit With
Spreadsheet (TA 2528). For the 55% of VR entries without SSN9, the Attorney General
only matched based on identical first name, last name, and date of birth (with an
additional sweep for middle names).
291. Among the SOS VR generally, the Spanish Surname percentage is 22.25%.
(Ansolabehere Report. ¶ 33.) But among those entries with full SSN9, there is 20%
Spanish Surname. Sager Deposition Exhibit With Spreadsheet (TA 2528)
292. The effect of this is to create bias against successfully matching records from the VR
database to individuals in the DPS’s DL and CHL databases. Unless the individual’s VR
database record has a full SSN, the DOJ does not recognize a match if the VR and DPS
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database records have disparate or distinct spellings of their first name or last name (e.g.
Michael and Mike). See Sager Supp. Report ¶¶ 37-38, TA 899.
293. This requirement of identical names for over half of the VR database population results in astounding disparities between men and women, presumably because women change their last names more frequently than men. See Sager Supp. Report ¶¶ 35, 40,
Exhibit C (TA 897-899, 913). This results in the unsupported and counterintuitive finding by DOJ that women disproportionately lack state identification. In the general
SOS VR dataset, there are 49% females and 42% males (and 9% unknown). In the
DOJ’s VRNID there are 53% females and 36% males. See Sager Deposition Exhibit (TA
2528). The DOJ has provided no explanation for this anomaly and its matching
algorithm’s obvious bias against matching women.
294. The match algorithms are also biased against matching Hispanics, and this bias
explains the disproportionality of Hispanics in the DOJ’s VRNID. The State’s Expert
Professor Sager proved this bias using the over 5MM VR entries that were able to be
matched to the DPS DL database using SSN9 and one of first name, last name, or date of
birth. In other words, these were strong confirmed matches of the same individual. Of
the 5,205,228 entries that matched in this sweep (92% of all entries with any SSN9
information at all), 20% had Spanish Surnames, consistent with the general SOS VR data.
Sager Deposition Exhibit With Spreadsheet (TA 2528)
295. But among this group of confirmed-matches, 463,868 did not match using the first
name, last name, date of birth protocol. In other words 8.9% of the individuals had some
discrepancy between their names or dates of births on their voter registration and state
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ID. Among this group of confirmed-SSN9 matches, 29% had Spanish Surnames. Sager
Deposition Exhibit With Spreadsheet (TA 2528)
296. The conclusion is that those with Spanish Surnames (and thus Hispanics) experience greater rates of discrepancies between their names in the two databases (just as women do). This effect (combined with the lower number of Hispanics with full SSN9 to begin with) explains the disproportionality between Anglos and Hispanics that the Attorney
General finds in the VRNID. There is no proven disproportionality in state id possession from the DOJ match; there is a proven bias in DOJ’s matching algorithms. Sager
Deposition Exhibit With Spreadsheet (TA 2528); see also Sager Supp. Ex. A (reporting on similar findings based on a random sample of matches) (TA 903). DOJ did nothing to control for the possibility of a name bias in his matching algorithm.
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.
297. Dr. Sager used various matching algorithms to match DOJ’s VRNID set back into
the DPS DL/ID and LTC databases without DOJ’s inadvisable exclusions. (Sager Supp.
Report ¶¶ 30-33)(TA 894-896.) The resulting sweeps reduced the “No Match”
population to 167,724. (Id. Ex. A)(TA 903.) Again, because exact name matching was
the only type performed on about half the entries, there is a bias against matching
Hispanics; it is no surprise that this group has an SSVR of 31.6%. Id. ¶ 33 (TA 896).
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298. The “disproportionality” between SSVR in the general database (22.25%) and in the remainder 167,724, like the disproportionality in the DOJ’s VRNID, is likely explained by matching bias and imprecision. Sager Supp. Report. ¶¶ 34, 36-37, 42 (TA 897-898.)
300. The Attorney General’s finding of a disproportionality between Hispanics and
Anglos in the possession of state identification is unreliable and the result of the matching algorithms and inappropriate data “cleaning” the Attorney General performed.
D. Survey Data Confirm that SB 14 Will Not Have a Disparate Impact on Any Group of Voters.
299. The results of Professor Shaw’s initial survey are confirmed by the surveys
Professor Shaw conducted Professor Ansolabehere’s no-match list and disclosed in
Shaw’s rebuttal report. Shaw Rebuttal at 6 – 9. The results of these surveys show that there is not a disparate rate of identification possession amongst Anglo, Hispanic, and black registered voters in Texas. Id. Dr. Shaw has provided evidence that the respondents to his surveys are representative of the target population. Corrected Shaw
Deposition Exhibit 2 (TA 2546). Texas law permits disabled voters and voters 65 or older to vote absentee. These voters need not possess a photo ID.
300. DOJ requested the data in the January no-match list. The January 2012 no-match list was produced during the administrative preclearance process on demand by the DOJ and under threat that Texas’s application would be denied if it did not comply. The list reflected data that the SOS stipulated was unreliable and assembled as “directed” by the
DOJ. Thus the January list reflects Texas’s attempt to compile data pursuant to DOJ’s mandated protocol, which the State warned resulted in flawed data. See TA 1355.
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301. Upon request, Professor Shaw’s phone append methodology has been disclosed to the Defendants. See US FOF ¶¶ 43, 57.
302. DOJ inaccurately describes Professor Shaw’s survey. See US FOF ¶ 44. The survey questions, including the order of survey questions, speak for themselves.
303. The weighted and unweighted results of Professor Shaw’s survey speak for themselves as do the results of Shaw’s surveys of Ansolabehere’s no-match list.
304. As indicated in Professor Shaw’s declarations, the results of the surveys are scientifically valid, and they speak for themselves. Shaw performed separate surveys of
Hispanics to support his conclusions concerning the rate of Hispanic ID possession.
Texas law permits disabled voters and voters 65 or older to vote absentee. These voters need not possess a photo ID. DOJ’s criticisms (US FOF ¶¶46–54, 62–63) are unfounded.
305. DOJ’s attempt to cast aspersions on its own expert’s no-match list is disingenuous.
See US FOF ¶¶55A–G. Professor Shaw’s surveys are scientifically valid. The low response rate is a result of deficiencies in Professor Ansolabehere’s list and the characteristics of the survey population. Professor Shaw has established the survey responders are representative of the surveyed population. Corrected Shaw Deposition
Exhibit 2 (TA 2546). The remainder of the Department of Justice’s statements concerning Texas Proposed Finding ¶ 55 are inaccurate and misleading.
306. The results of Professor Shaw’s surveys are scientifically valid and speak for themselves. DOJ’s contentions concerning potential weaknesses of the surveys (US FOF
¶¶ 58–61, 64) are unfounded and unsubstantiated.
II. SB 14 WAS NOT ENACTED WITH A DISCRIMINATORY PURPOSE.
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A. There Is No Evidence that SB 14 Was Passed for the Purpose of Denying or Abridging any Texas Citizen’s Right to Vote.
307. The Attorney General’s contention that the consistently stated purpose of SB 14
“cloaked” a purported secret discriminatory purpose (US FOF ¶¶74–205) has no basis in
fact and no support in the evidence. The State’s witnesses consistently testified that the
purposes of SB 14 were to deter and detect voter fraud and to preserve confidence in
elections, exactly as stated in the legislative record. E.g. JA 000382 (Statement of Sen.
Fraser) (“It is imperative that we protect the public’s confidence in elections by deterring and detecting voter fraud.”); JA 001858–59 (Statement of Rep. Harless)
(“People who lack confidence in the election system show—show no reason to show up and vote. It is an—imperative that we protect the public’s confidence in the election by deterring and detecting fraud.”); see also JA 003334–43 (Statement of
Sen. Fraser laying out SB 362). Witnesses also testified consistently that there was
no other purpose behind SB 14. See, e.g., Williams Depo. 261:3–4, 9–12 (TA 1352),
263:17–18 (TA 2523), 264:2–5 (TA 2249); Bonnen Depo. 67:13–15 (TA 2249), 20–24;
Armbrister Depo. 189:22–190:2 (TA 2241-2242); see also Garduno Depo. 80:5–9 (TA
1140) (testimony by SWU 30(b)(6) witness that the purpose of SB 14 was to prevent
voter fraud). DOJ’s assertion that establishing the purpose of SB 14 requires privileged
testimony (US FOF ¶ 75) is unfounded, as is their suggestion that legislators refused to
answer questions about the purpose of the bill (id. ¶ 76).
308. The DOJ’s own legislative witnesses could point to no personal knowledge of facts
indicating discriminatory purpose. See Texas Proposed FOF ¶¶ 125–28.
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309. Bill opponents’ statements of concern about impact on minority voters do not
constitute evidence of discriminatory purpose. Opponents of SB 14 and other voter ID
bills were well aware that the bills would have to be precleared under Section 5 of the
Voting Rights Act, and DOJ’s expert on discriminatory purpose explained that opponents
were making a record for litigation. See Kousser Depo. 94:6–11, 13–19; 95:14–18,
95:22–96:2 (TA 2418-2420); Kousser Report at 82 (DE 548) (“[T]he certainty that any
voter id law would be subject to a Section 5 preclearance action and probably additional
lawsuits put Texas legislators on notice that every word that they spoke, every fact that
they gathered, every witness that they heard from would be part of ‘making a record’ for
a court to pick over.”). The legislative record confirms that bill opponents were well aware of potential litigation. See, e.g., JA 000065; JA 001310–11; JA 003392 (“[E]ach
side, those who support this legislation and those who oppose it are making a record for
two purposes: No. 1, because a lawsuit is expected; No. 2, because we will be dealing
with challenges before the Department of Justice.”). Self-serving statements by a bill’s
opponents made to create a record for litigation do not constitute evidence of
discriminatory purpose.
310. Nor do statements made in opposition to SB 14 reliably indicate the bill’s likely
impact. The content of proposed voter-ID bills in Texas has changed from HB 1706 in
2005 to SB 14 in 2011. The rhetoric of voter ID opponents has not. Critics of voter ID
legislation have made the same arguments regardless of whether the bill in question
allows non-photo ID or allows only government-issued photo ID. See, e.g., JA 4213
(written testimony on behalf of LULAC) (“The bills before this committee today, HB
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101, HB 218 and HB 625 SB 362 present some of the most onerous restrictions for minority voters in Texas . . . in half a century.”); JA 005392 (written testimony on behalf
of LULAC) (describing SB 362 as “A 21st Century Poll Tax”); JA 004812 (written testimony of J. Gerald Hebert, March 10, 2009) (“The path and method in enacting a photo ID bill are the latest in a long series of relentless attacks on the voting strength of minority citizens in the State of Texas . . . .”); JA 004572 (“HB 218 is a direct descendent of poll taxes, and of allowing only white male property owners to vote. In its effect it is racist, barbaric, antidemocratic and contrary to everything that made America great.”); JA
007490 (Testimony of Lydia Camarillo).
311. In any event, contemporary statements in the legislative record indicate that opponents did not believe SB 14 to be motivated by a racially discriminatory purpose.
Senator Ellis, for example, stated on the Senate floor that he knew Senator Fraser’s intent was to ensure that every eligible voter could vote. See JA 000106 (“SEN. FRASER: . . . I want to make sure that the groups you’re talking about, you know, women, minority, elderly, that they all have the right to vote, and I believe my bill does that. SEN. ELLIS:
Okay. And I know that’s your intent.”).
B. The State’s Interest in Detecting and Deterring Voter Fraud Provides a Valid Justification for SB 14.
312. The Carter-Baker Commission recognized that voter fraud occurs, and that even a
small amount of fraud could affect the outcome of close elections:
While the Commission is divided on the magnitude of voter fraud—with some believing the problem is widespread and others believing that it is minor—there is no doubt that it occurs. The problem, however, is not the
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magnitude of the fraud. In close or disputed elections, and there are many, a small amount of fraud could make the margin of difference.
Carter-Baker Report at 18, JA 004638; see also JA 003604.
313. This is the case in Texas. There is no doubt that voter fraud occurs. E.g. JA 003154
(Statement of Rep. Anchia) (“I don’t think there’s any disagreement with anybody on this committee that voter fraud exists in the state of Texas . . . . And I would affirmatively
say that there is voter fraud in the state of Texas.”).
314. Many elections in Texas are decided by very close margins. Since 2004, six Texas
House elections have been decided by less than 50 votes. In the 2010 general election,
for example, Representative Donna Howard was elected to House District 48 by a margin
of 12 votes (TA 2934). In the 2010 Democratic primary election, Representative Borris
Miles won by 8 votes (TA 2921). In 2008, Representative Linda Harper-Brown was
elected to House District 105 by a margin of 19 votes (TA 2954). In 2004,
Representative Hubert Vo won the general election by 33 votes (TA 2941). It is evident
that a small amount of voter fraud could affect the outcome of elections, particularly in
local elections in which relatively few votes are cast.
315. The United States agrees that voting fraud exists in Texas. See Attorney General’s
Answers to Plaintiff State of Texas’s First Requests for Admission to the United States of
America at 12–14 (TA 2683) (admitting that “Texas has convicted at least one person of
an election-related crime under Texas law” and that “Texas has convicted at least one
person of illegal voting as defined by Tex. Elec. Code § 64.012(a).”) (TA 2181).
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316. The Legislature heard testimony that in-person voter fraud would be difficult to detect unless a poll worker knew the individual attempting to cast a fraudulent ballot.
[6/14/2010 Interim Hearing at 53:25–54:7 (McGeehan)] Major Forrest Mitchell, who has investigated voting fraud cases referred to the Texas Attorney General, testified that in- person voting fraud is “incredibly difficult to detect.” Mitchell Depo. 216:21 (TA 2469).
Major Mitchell testified that in his experience, the only way to detect in-person voter fraud is if someone inside the polling place recognizes the individual attempting to cast a fraudulent ballot. Id. at 216–17 (TA 2469-2470); see also Veasey Depo. 126:2–6.
317. The United States acknowledged the difficulty of detecting impersonation fraud in its brief to the Supreme Court in Crawford. See Brief of United States as Amicus Curiae
Supporting Respondents, Crawford v. Marion County Election Bd., Nos. 07-21 & 07-25,
Supreme Court of the United States 30 (Dec. 2007) (TA 001542) (relying on “the fact that impersonation fraud is extremely difficult to detect in the absence of some reliable means of checking the voter’s identity (like a photo ID)”).
318. Conditions for voter fraud exist in Texas. The State’s voter registration list, for example, includes thousands of ineligible voters. See, e.g., Ansolabehere Report ¶ 40
(50,000 deceased persons registered to vote). The Carter-Baker Report noted the risk of
fraud posed by inflated voter rolls: “Invalid voter files, which contain ineligible,
duplicate, fictional, or deceased voters, are an invitation to fraud.” JA 004630.
319. Despite the difficulty of detecting voter fraud, the record includes specific instances
of voter fraud that have been investigated and prosecuted. Major Forrest Mitchell
testified that he tracks historic and ongoing fraud investigations from 2002 onwards in a
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spreadsheet. Mitchell Dep. at 89:22-90:4 (TA 2447-2448). Major Mitchell’s records include 308 investigations. TX_00267733-51 (3 docs) TX_00268954-9068. These
investigations reveal at least four instances where voter impersonation resulted in
criminal charges. Mitchell Depo. at 143:12–22, 150:2-9, 150:15-17 (TA 2449-2450).
They further reveal at least three cases involving alleged non-citizen voting. See id.
196:6-19. Mitchell also testified that in at least two cases, family members impersonated
other family members to vote unlawfully. Mitchell Depo. at 150-165 (TA 2450-2465.)
320. The Texas Legislature heard testimony by members of the public who had witnessed
in-person voter fraud, JA 000184 (Testimony of Carol Kitson), and regarding the
potential for voter fraud under a system that allows voters to vote by presenting a voter
registration certificate, see JA 1541–42 (Testimony of Colleen Vera) (witnessed voters
appearing at the polling place with multiple voter registration certificates). DOJ’s
characterization of such testimony as “anecdotal, unsupported and barely plausible” (US
FOF ¶ 84A) is unfounded, as is the statement that testimony of voter fraud “went
unchallenged.” Id. The Legislature is entitled to consider the testimony of lay witnesses,
and bill opponents had every opportunity to question witnesses and present contrary
testimony. See, e.g., JA 001156–57 (indicating that 3 witnesses testified for SB 14 before
the Senate Committee of the Whole and 14 testified against the bill).
321. The Legislature was aware that Texans favored a photo-ID requirement for voting as
a means of deterring fraud. Many legislators understood that their constituents favored
photo ID requirements. JA 002160 (Statement of Rep. Aliseda) (“I believe that the
majority of my constituents in my district, democrats independents and republicans want
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this and I intend to vote for it and I ask that you do also.”); JA 003964 (Statement of Sen.
Williams) (“I've got 750000 constituents just like every other member of the Senate does here—and I find consistently across all age brackets and across all ethnic lines they all support this measure.”); Harless Depo. II 309:5–24 (TA 2381). The legislative record indicated that this support spanned the State. For example, a Lighthouse poll from Fall
2010 showing support for voter ID regardless of race or political affiliation was included as an exhibit in the evidentiary record by the Senate Committee of the Whole. See JA
001158. (The record therefore contradicts DOJ’s statement that “[t]here is no evidence
that this poll was shared outside of a Senate caucus.”).
1. Prosecuted Cases Do Not Represent the Entire Universe of Voter Fraud.
322. The number of cases investigated by the Texas Attorney General does not
encompass the amount of in-person voting fraud in Texas.1 The Texas Attorney
General’s office does not proactively patrol the State for instances of illegal conduct in elections; rather, the Attorney General’s investigation of Election Code violations is based exclusively on referrals. See JA 1833–34 (Testimony of David Maxwell, Deputy
Director, Law Enforcement Division, Texas Attorney General); JA 4056 (Testimony of
Deputy Attorney General Eric Nichols). Election Code violations may be referred to the
Attorney General by the Secretary of State, local law enforcement officials, or individual voters. Mitchell Depo. 88:2–7 (TA 2446); JA 001833–34 (Testimony of David
1 DOJ’s proposed findings regarding the Texas Attorney General’s investigation of voter fraud are not supported by competent evidence. See, e.g., US FOF ¶ 77C (citing report of J. Morgan Kousser), ¶ 78B (citing deposition testimony of Senator Davis). Neither of the cited sources have personal knowledge or any other basis to testify about the Texas Attorney General’s investigations or enforcement priorities.
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Maxwell); JA 004057–58 (Testimony of Eric Nichols). The Secretary of State’s office may refer a complaint to the attorney general upon a determination of “reasonable cause
to suspect that the alleged criminal conduct occurred.” Tex. Elec. Code § 31.006(a) (TA
2179). For individual voters to submit a complaint directly to the Attorney General, the
election in question must involve more than one county. Tex. Elec. Code § 273.001(a)
(TA 2187). Local prosecutors also have jurisdiction to prosecute voter fraud, id., and
they do not report prosecutions to the Attorney General. Mitchell Depo. 174:12–19; see
also id. 207:11–25, (explaining that a case of in-person voter fraud in Tarrant County is
being prosecuted by the local district attorney).
323. Between August 2002 and June 2010, approximately 267 referrals of potential
election code violations were referred to the Texas Attorney General for investigation.
JA 003136. The Secretary of State’s office referred 14 complaints of voter fraud to the
Attorney General in 2009 and 10 complaints between January 1 and June 14, 2010. Of
those 24 referrals, two involved allegations of voter impersonation. The Secretary of
State’s office informed the House Elections Committee in 2010 that it was not aware of
any survey of Texas counties or cities to identify cases of alleged voter fraud that had not
been referred to the Texas Attorney General.
324. At a March 1, 2011 hearing held by the House Select Committee on Voter
Identification and Voter Fraud, a representative of the Texas Attorney General estimated
that of the cases referred to the Attorney General’s office since 2002, seven cases of voter
impersonation had been adjudicated, and another five or six had not been adjudicated.
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TA 001826 (Testimony of David Maxwell, Deputy Director, Law Enforcement Division,
Office of the Attorney General).
2. The Perception of Voter Fraud Reduces Confidence in the Electoral System.
325. The Carter-Baker Commission recognized that “the perception of possible fraud
contributes to low confidence in the system.” See also Brief of United States as Amicus
Curiae Supporting Respondents, Crawford v. Marion County Election Bd., Nos. 07-21 &
07-25, Supreme Court of the United States 30 (Dec. 2007) (TA 001542) (“[W]hatever its
exact incidence, even the prospect of voter fraud may undermine the integrity of the
voting process.”).
326. Again, this holds true in Texas. Legislators who attested to the existence of
corruption in the electoral process explained that any step take to ensure electoral
integrity has a chilling effect on corruption because it signals that the government is
addressing the problem. Peña Depo at p. 132:1–4, 6–9 (TA 001208) (“[O]nce the
message is communicated back home that the government is getting involved in taking
care of corruption, just like when the W[olens] bill was passed . . . there was a chilling
effect on the corruption. If you pass a bill like this, it sends a message of confidence and
it will have a chilling effect on the corruption.”); see also Carter-Baker Report at 18–19
(JA 004638–39) (“A good ID system could deter, detect, or eliminate several potential
avenues of fraud—such as multiple voting or voting by individuals using the identities of
others or those who are deceased—and thus it can enhance confidence.”).
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327. The criticism that SB 14 does not address all types of voter fraud does not call its
legitimacy into question. Any measure against voting fraud may boost voter confidence.
See, e.g., Peña Depo at 133:23–134:2 (TA 001209–10) ("Now, knowing all the type of voter fraud that I encounter back home, I realize . . . that this was simply a good start.
But the injection of confidence that somebody is actually doing something matters.").
328. The prospect of voter fraud cannot be dismissed by assuming that no one would take the risk, as the United States recognized in its amicus brief in Crawford. See Brief of
United States (TA 001542) (“In light of the obvious temptation to engage in such fraud and the enormous costs if the integrity of the process is undermined, State have an obvious incentive to deter such violations before they happen.”).
329. Testimony and legislative reports confirm that incentives other than the prospect of winning an election that might lead to fraud. See DOJ FOF ¶81A; Peña Depo. at 113
(TA 2494) (testifying that voter fraud is accomplished by “[p]aying the voters, paying voters to vote . . . [u]sing government vans, school district vans to haul voters to the polls”).
3. SB 14 Will Prevent Certain Classes of Non-Citizens from Voting.
330. Non-citizen voting can change the results of an election. For instance, Major
Mitchell testified about the case of political candidate Debra Briseno registering non- citizens to vote. See Mitchell Dep. at 192:9-22, 193:23-194:12 (TA 2466-2468). Ms.
Briseno won her primary contest by a mere 19 votes. Subsequently, Ms. Briseno faced criminal charges for her unlawful registration of non-citizens. See Mitchell Dep. at
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193:23-194:12 (TA 2467-2468). A jury found Ms. Briseno guilty of two counts of illegal voting and one count of tampering with a government record. TA 001559.
331. The Department of Public Safety is required to keep a record of the citizenship status of every person with a Texas driver’s license. Tex. Transp. Code § 521.041(b)(4).
Every applicant for a personal identification certificate must provide proof of U.S. citizenship or “documentation issued by the appropriate United States agency that authorizes the applicant to be in the United States.” Id. § 521.101(d); (f-2).
332. Undocumented non-citizens cannot obtain a Texas driver’s license or ID card.
333. A driver’s license issued to a lawfully present non-citizen must be in the same format, have the same appearance, and contain the same type of information as a license issued to a U.S. citizen. Id. § 521.101(k).
334. The DPS cannot deny a driver’s license to a lawfully present non-citizen “based on the duration of the person's authorized stay in the United States.” Id. § 521.101(f-4). A driver’s license issued to a lawful temporary resident contains information indicating noncitizen status. See JA 000151 (Testimony of Rebecca Davio) (explaining that driver’s licenses issued to legal temporary residents “say ‘temporary visitor’ on them”).
335. Whether or not SB 14 would prevent all voting by non-citizens, it will prevent
undocumented non-citizens from voting because they are not eligible to obtain the
necessary state-issued identification.
C. Alleged Procedural Departures Do Not Indicate a Discriminatory Purpose.
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336. Texas hereby incorporates ¶¶ 373–390 from its Reply in Support of Proposed
Findings of Fact Relating to Defendant Intervenors. The procedures used to pass SB 14 are consistent with the rules of the Texas Legislature and do not indicate that the bill was passed with the purpose of denying or abridging any person’s right to vote.
CONCLUSIONS OF LAW
DOJ first contends that SB 14 fails the “effects” prong based solely on its purported “disproportionate impact on minority voters.” DOJ COLs at 55. DOJ next contends that SB 14 was enacted with a racially discriminatory purpose but admits that it lacks “direct evidence.” Neither argument can be accepted post-Northwest Austin.
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.
The Supreme Court has held many times that statutory construction “must begin with the language employed by Congress.” See, e.g., Engine Mfrs. Ass’n v. South Coast
Air Quality Management Dist., 541 U.S. 246, 252 (2004) (TA 2062). Yet DOJ never so
much as acknowledges the text of section 5, and insists that SB 14 must have a
symmetrical impact even though the text of section 5 imposes no such requirement.
Section 5 instead requires Texas to show that SB 14 “neither has the purpose nor will
have the effect of denying or abridging the right to vote on account of race or color,” or
“because he is a member of a language minority group.” See 42 U.S.C. § 1973c(a)
(emphasis added) (TA 000813–14); § 1973b(f)(2) (emphasis added) (TA 000807–12).
A. DOJ Does Not Even Contend That SB 14 Has the Effect of “Denying” or “Abridging” the Right to Vote.
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SB 14 does not “den[y]” or “abridg[e]” the right to vote because anyone who lacks a photo ID can get one. Crawford holds that the inconveniences associated with obtaining a photo ID are no greater than “the usual burdens of voting,” such as registering and traveling to the polls. See 553 U.S. at 198, 209 (Scalia, J. concurring in the judgment). No one could seriously maintain that a State “den[ies]” or “abridg[es]” the right to vote by requiring its citizens to register and appear at polling places to cast their ballots—even though these tasks require time, effort, and resources. In like manner, any inconvenience imposed by a photo-ID requirement is too minor to rise to the level of
“denying or abridging” the right to vote. See Burdick v. Takushi, 504 U.S. 428, 433-34
(1992) (TA 2016-2017)(“[E]lection laws will invariably impose some burden upon individual voters.”). There are always costs associated with casting a ballot (including opportunity costs) and those who choose not to vote because they decide that the benefits of voting are not worth the costs have not had their right to vote “denied” or “abridged.”
Millions make this rational, calculated choice every election. See generally William H.
Riker and Peter O. Ordeshook, A Theory of the Calculus of Voting, 62 AM. POL. SCI.
REV. 25 (1968) (TA 2963).
DOJ’s only response is to attack a straw man. See DOJ COLs at 50-51; 53-54.
Citing Perkins v. Matthews, 400 U.S. 379, 387–88 (1971) (TA 2126, 2134-2135), and
Allen v. State Bd. of Elec., 393 U.S. 544 (1969) (TA 1934), DOJ correctly notes that SB
14 represents a “voting change[]” that must be submitted to federal authorities for preclearance under section 5. But Texas did not argue that SB 14 falls outside the scope of laws that must be submitted for preclearance. And section 5 permits a court to
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withhold preclearance from only a subset of those “voting changes”—those whose purpose or effect rises to level of “denying” or “abridging” the right to vote. Neither
Perkins nor Allen has any bearing on whether SB 14 should be precleared (as opposed to submitted for preclearance). And DOJ does not even assert that SB 14 has the effect of
“denying” or “abridging” the right to vote of anyone.
Indeed, DOJ describes SB 14 as everything but a “den[ial]” or “abridg[ement]” of the right to vote. It variously describes SB 14’s requirement as “an additional cost to vote,” a “procedural hurdle,” a “burden [on] casting a ballot in person,” and a “significant new hurdle to voting.” See DOJ’s COLs at 53, 54. But section 5 does not permit courts
to deny preclearance to laws that merely impose an additional “cost,” “hurdle,” or
“burden”—especially after Northwest Austin. If DOJ will not even ask this Court to find
that SB 14 will “den[y]” or “abridg[e]” the right to vote, then DOJ has no case.2
Finally, DOJ makes the remarkable assertion that Crawford “does not bear on this analysis” because it did not address a Voting Rights Act challenge to Indiana’s ID law.
But Crawford’s constitutional ruling includes several holdings and findings relevant to this case. First, Crawford found that the inconveniences of photo-ID requirements are no
greater than “the usual burdens of voting.” Crawford, 553 U.S. at 198, 209 (TA 00091,
102). Second, Crawford holds that voter-ID laws are justified even when there is no
2 There may be strategic reasons behind DOJ’s refusal to assert that SB 14 “den[ies]” or “abrid[ges]” the right to vote. DOJ could not possibly use Ansolabehere’s “VRNID list” as a measurement of those whose right to vote has been “den[ied]” or “abridg[ed]” when Ansolabehere failed to account for federal IDs and ignores that voters over 65 and disabled voters may vote by mail without presenting IDs. But when DOJ is not even able to claim that SB 14 effects a “den[ial]” or “abridg[ement]” of someone’s right to vote, it cannot prevail.
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evidence of in-person voter fraud in that State. See id. at 194-197. Third, the Court was
untroubled by the fact that some voters might have to pay for a birth certificate before
obtaining a free election ID card. See id. at 198 n.17. DOJ cannot ignore any of this (or
ask this Court to do so) simply by noting that Crawford resolved a constitutional rather
than a statutory challenge. DOJ also ignores the “equal sovereignty of the States”
doctrine that so animated the Supreme Court in Northwest Austin, 557 U.S. at 203 (TA
437). If Indiana is allowed to require photo identification at the polls but Texas is not,
that presents a grave constitutional question under Northwest Austin, which this Court
must avoid.
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.
Not only does Crawford establish that the inconveniences associated with
obtaining a photo ID are too minor to qualify as a “denial” or “abridgement” of the right
to vote, the social-science literature demonstrates that photo-ID requirements do not
adversely affect turnout and do not deter anyone from voting. See Shaw Report at 3-17.
Without a measurable effect on voter turnout, ID requirements cannot be said to have the
“effect” of denying or abridging the right to vote.
C. There Is No Racial Disparity in ID Possession.
Even if a mere racial disparity in ID possession would cause SB 14 to violate the
effects prong of section 5, Texas has still carried its burden of proof. Texas has
thoroughly discredited DOJ’s claim that “over 1.5 million Texas voters” will be burdened
by SB 14, as well as DOJ’s claim that SB 14 will disproportionately burden minorities.
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First, Ansolabehere’s “matching” process does not account for voters with passports, military IDs, or U.S. citizenship certificates—even though SB 14 includes these as acceptable forms of ID. See Ansolabehere Deposition at 24 (“My reports do not analyze the federal ID.”). Survey research reveals that nearly 40% of the registered voters on
Ansolabehere’s “VRNID list” have passports, and Hispanics on the list are more likely to have passports than Anglos. See Shaw Report at 21–24. Yet DOJ is insisting that this
Court proceed as if no one on Ansolabehere’s VRNID list holds a passport, military ID,
or U.S. citizenship certificate. That is unacceptable, especially when DOJ could have
determined federal-ID possession by consulting the federal government’s databases or
conducting its own survey.
Second, Ansolabehere’s VRNID list is inflated by data-entry errors in the state
databases and variations on the first names used in those databases. About 10% of
registered voters with driver’s licenses do not match on account of these problems, and
Hispanics are more likely than Anglos to fall in this group because their names are more
likely to be misspelled in the data-entry process. CITE FOFs. Third, Ansolabehere fails to account for ineligible voters. Ansolabehere removed 779,918 driver’s license records marked as “deceased,” plus 2,338 records of deceased persons in the License to Carry
(LTC) database. Ansolabehere Report at 12, 14. Yet he made no effort to locate and remove these deceased individuals from the voter database before comparing the databases. See Ansolabehere Report ¶ 40.
Fourth, DOJ’s 1.5 million figure fails to account for persons who can vote by mail without presenting ID, those who are over the age of 65, disabled, confined in jail (but
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otherwise eligible), or traveling during the voting period. Over one-third (CHECK) of
Ansolabehere’s so-called “VRNID” list are voters over the age of 65, and many others on this list are disabled. CITE. None of them will suffer a “denial” or “abridgement”—or even a “retrogression”—of their right to vote, and they cannot be considered in applying the effects prong to SB 14. Oregon did not effect a “retrogression” of its citizens’ voting rights when it abolished voting at the polls and required everyone to vote by mail.
Texas has also demonstrated that SB 14 will not have a disparate impact on blacks
or Hispanics. Texas surveyed a random sample from Ansolabhere’s VRNID list and
found that the overwhelming majority possess some form of ID required by SB 14, and
blacks and Hispanics are no less likely than whites to have photo ID. This remains true
when one removes persons over the age of 65 and disabled persons eligible to vote by
mail. This carries Texas’s burden on the effects prong, and refutes DOJ’s hyperbolic
claims of “tremendous effect[s]” on minority voters. CITE.
DOJ’s only response to the survey evidence is to complain about its “low response
rate” and snipe about Dr. Shaw’s methodology. CITES. But DOJ could have conducted
its own survey to determine the number of voters affected by SB 14. Instead, DOJ chose
to rest its case exclusively on Ansolabehere’s flawed VRNID list, and insist that every
voter on that list lacks photo ID in the face of irrefutable evidence to the contrary. See
DOJ COLs at 54 (“For each of these [1.5 million] voters, SB 14 would present a
significant new hurdle to voting.”) (emphasis added). This Court cannot withhold
preclearance from SB 14 by ignoring the possession of passports and relying on
imaginary numbers of Texans without photo ID.
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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.
Even if one accepts Ansolabehere’s flawed data and assumes that SB 14 has the effect of “denying” or “abridging” the right to vote of persons who lack photo ID, it does not do so “on account of race or color,” or “because [one] is a member of a language minority group.” To the extent SB 14 affects the ability to vote, it does so on account of the individual’s decision not to obtain an ID. It no more denies or abridges the right to vote “on account of race or color” than felon-disenfranchisement laws, which courts consistently uphold notwithstanding their disparate impact on racial minorities. See
Richardson v. Ramirez, 418 U.S. 24 (1974) (TA 588); Wesley v. Collins, 791 F.2d 1255
(6th Cir. 1986) (TA 2160)(upholding felon-disenfranchisement laws under section 2 of
the VRA).3
Spurning the enacted language of section 5, DOJ insists that courts must deny preclearance to any law with a “disproportionate” or “retrogressive” impact on minority voters—even when those laws do not violate the Fifteenth Amendment by denying or abridging the right to vote “on account of” race or color. DOJ’s interpretation of section
5 violates the Constitution, or at the very least presents grave constitutional questions
3 DOJ asserts that reading section 5 according to its enacted language would leave the effects prong with no work to do, suggesting that any law with the “effect” of violating the Fifteenth Amendment will by definition violate the “purpose” prong of section 5. See DOJ’s COL at 51. That is not correct. Felon- disenfranchisement statutes or voter-ID requirements enacted with the purest of motives might not thereafter be administered in a racially neutral manner. DOJ is correct that most laws that violate the Fifteenth Amendment will have both the purpose and effect of doing so, but that does not render the effects prong surplusage. And even if it did, that would not permit the “effects” prong into a disparate- impact regime when the text says “on account of race or color” and “because he is a member of a language minority group.”
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under Northwest Austin. Either way, this Court must construe section 5 to avoid the constitutional violations (or problems) posed by DOJ’s interpretation.
Section 2 of the Fifteenth Amendment permits Congress to “enforce” the amendment “by appropriate legislation.” Congress may in limited circumstances prohibit some practices that do not necessarily violate the self-executing command of the
Fifteenth Amendment, such as literacy tests, when there is evidence that these facially neutral devices were administered in a racially discriminatory manner. See Oregon v.
Mitchell, 400 U.S. 112, 132 (1970) (TA 479)(opinion of Black, J.).
But Congress does not have power under the Fifteenth Amendment to prevent
States from enacting or enforcing voting laws that merely have a disparate impact on
minorities.4 Any effects that these laws, such as felon disenfranchisement, might have on minorities are not “on account of” race or color.
DOJ makes no effort to reconcile its interpretation of the “effects” prong with the language of section 5. Instead, DOJ defends its disparate-impact theory by insisting that section 5 does not mean what it says. DOJ worries that the enacted language of section 5 would allow for preclearance of state literacy tests if it could be shown that the tests would be applied in a racially neutral manner. See DOJ’s COLs at 51. Yet the Supreme
Court upheld congressional restrictions on state literacy tests because of evidence that
4 In equal-protection jurisprudence, section 5 of the Fourteenth Amendment does not authorize federal legislation preventing state laws that may have an incidentally disparate impact on a protected class. See Coleman v. Court of Appeals of Maryland, 132 S.Ct. 1327, 1336 (2012)(TA 77) (“To the extent, then, that the self-care provision addresses neutral leave policies with a disparate impact on women, it is not directed at a pattern of constitutional violations.”); id. at 1336 (Scalia, J., concurring in the judgment). Section 2 of the Fifteenth Amendment is equally limited.
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state officials administered those tests in a racially biased manner. See Oregon v.
Mitchell, 400 U.S. 112, 132 (1970)(TA 479) (opinion of Black, J.) (noting that “Congress
had before it a long history of the discriminatory use of literacy tests to disfranchise
voters on account of their race.”) (emphasis added). And any disparate impact that
resulted from literacy tests can be deemed to have occurred “on account of” race or color
because the literacy gaps between blacks and whites in the 1960s and 1970s were
proximately caused by a long period of unconstitutional racial discrimination in public
schooling. See Brown v. Board of Education, 347 U.S. 483 (1954) (TA 2002). There is
no basis on which to attribute the purported ID-possession disparities in this case to past
acts of purposeful state racism.
The very existence of a “preclearance” requirement pushes constitutional
boundaries. See Northwest Austin, 557 U.S. 193 (TA 437); Shelby County v. Holder, 679
F.3d 848 (D.C. Cir. 2012) (TA 650). An interpretation of the VRA that denies
preclearance to state laws that do not violate the Fifteenth Amendment raises even graver constitutional concerns, and courts must construe the VRA to avoid this outcome if at all possible.
DOJ notes that Beer v. United States, 425 U.S. 130, 141 (1976) (TA 12), applied a
“nonretrogression” standard when preclearing a reapportionment plan that enhanced the
voting power of racial minorities. DOJ relies on this ruling to insist that every voting law
with a disproportionate effect on voters who happen to be racial minorities must be
denied preclearance irrespective of whether the disparate impact is “on account of” race
or color—even though DOJ cannot point to any language in section 5 that establishes this
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disparate-impact regime. See DOJ COL at 50; see also 28 C.F.R. § 51.54(b)-(c). Beer need not be read this broadly, and because DOJ’s needlessly broad interpretation of Beer will cause section 5 to violate the Constitution or at the very least present grave constitutional questions, it must be rejected by this Court.
First, Beer upheld a reapportionment plan after concluding that it enhanced the voting power of racial minorities. See 425 U.S. at 141 (TA 12). Beer’s holding can therefore be limited to the proposition that a voting change that enhances the voting power of racial minorities will per se satisfy the effects prong. Second, this Court should limit Beer’s nonretrogression principle to cases of reapportionment or other voting changes that affect the ability of minorities to elect their candidates of choice. See Texas
COLs at 47-48; see also 42 U.S.C. § 1973c(b) (TA 814). The State is aware of no decision that extends Beer’s nonretrogression principle to voter-ID requirements, and
DOJ has not cited any case applying a disparate-impact test to these laws. DOJ’s refusal to accept any limits on the nonretrogression principle belies the statutory language of section 5 and the constitutional limits on federal power. After Northwest Austin, Beer’s nonretrogression principle is on a collision course with the Constitution, yet DOJ urges an interpretation of Beer and section 5 that runs headlong into the constitutional problems that Northwest Austin commands this Court to avoid.
DOJ asserts that Northwest Austin should have no effect on this Court’s interpretation of the effects prong. See DOJ COLs at 51-52. According to DOJ,
Northwest Austin merely “raised federalism questions regarding the reauthorization of
Section 5,” and “focused on the suspension of voting changes pending preclearance and
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differentiation between the States.” Id. at 52. DOJ ignores what Northwest Austin held.
For three pages, the Court’s opinion documents the constitutional problems with section
5’s preclearance regime, including the fact that it reaches “beyond the prohibition of the
Fifteenth Amendment,” and how a preclearance requirement is difficult to justify given
the improved minority voter turnout in covered jurisdictions. Id. at 202–04. Then, the
Supreme Court held that a municipal utility district could “bail out” of section 5 even
though it did not qualify as a “State” and was not included within the statutory definition
of a “political subdivision” (the only two entities eligible for bailout under the statute).
The Court justified this seemingly atextual ruling by declaring that “underlying
constitutional concerns compel a broader reading of the bailout provision.” 557 U.S. at
207 (TA 450). The same “underlying constitutional concerns” that led the Supreme
Court to broadly construe the VRA’s bailout provision compel this Court to narrowly
construe section 5’s effects prong. After Northwest Austin, any ambiguity—or even
potential ambiguity—in the VRA’s preclearance provisions must be construed in favor of
the State.5 DOJ’s intransigence in applying a strict-liability disparate-impact standard to
SB 14 might very well provoke the Supreme Court to nullify section 5 for good.
5 According to DOJ, because Congress did not expressly repudiate the “nonretrogression” doctrine when it reauthorized section 5, the courts must proceed as though Congress specifically incorporated that standard into effects prong—and extended it to every state law subject to preclearance under section 5. See DOJ COL at 51 n.4. The problem with this argument is that the actual language that Congress enacted is incompatible with the strict-liability disparate-impact regime urged by DOJ. The effects prong condemns only laws that deny or abridge the right to vote “on account of” race or “because” of membership in a language-minority group, and DOJ does not attempt to explain how this language can be squared with the disparate-impact regime that it proposes. Northwest Austin’s constitutional-avoidance mandate also trumps any contention that Congress might have incorporated a disparate-impact standard through statutory silence or acquiescence.
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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.
Section 2 of the VRA bars States from imposing voting qualifications 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. 42 U.S.C. § 1973 (emphasis added). There is no textual
basis for interpreting the phrase “which results in” in section 2 differently from the phrase
“have the effect of” in section 5.
Yet felon-disenfranchisement laws and voter-purge statutes have been found not to
“result[] in” a denial or abridgement of the right to vote on account of race or color, or
because of one’s membership is a language minority group—even if these laws have a
disparate impact on racial and language minorities. See, e.g., Wesley v. Collins, 791 F.2d
1255, 1261 & n.8 (TA 2166)(6th Cir. 1986) (collecting authorities); Ortiz v. City of
Philadelphia Office of City Com'rs Voter Registration, 28 F.3d 306, 308 (3rd Cir. 1994)
(upholding Pennsylvania’s voter-purge statute even as it “recogniz[ed] that African-
American and Latino voters are purged at disproportionately higher rates than their white
counterparts.”). If these laws do not “result[] in” a denial or abridgement of the right to
vote on account of race or color, or because of one’s membership is a language minority
group, it logically follows that 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 one’s membership is
a language minority group.
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.
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DOJ concedes the incontestable: that after deposing dozens of state legislators and staff members, and after scouring the legislative record of not only SB 14 but each of its predecessor statutes, it is unable to present any “direct evidence” of racially discriminatory purpose. See DOJ COL at 49. But rather than acknowledge that Texas
has carried its burden of proof on the purpose prong, DOJ relies on what it calls
“circumstantial evidence” of discriminatory purpose. DOJ’s arguments show only that
the Texas Legislature was eager to pass SB 14. That is not evidence of racial animus or
discriminatory purpose. It is easily explained by the undisputed fact that voter-ID
requirements are popular with the voting public. And the need to resort to unusual
procedural maneuvers to pass SB 14 does not reflect racism but rather intransigence by
the legislature’s Democratic minority in the face of the overwhelming popularity of these
laws. As DOJ’s own expert witness writes:
Perhaps the most surprising demographic or political comparison arose with race, and the surprise was the lack of division. Over 70% of whites, blacks, and Hispanics support the [voter-ID] requirement. Black and Hispanic voters did not express measurably less support for voter ID requirements than whites. Such findings suggest the Congressional Black Caucus and the Democratic Party leadership may have been wholly out of step with the analogous segments of the electorate on this issue. The lowest levels of support (and, again, a majority still supported ID requirements) came from white Democrats and white liberals.
Stephen Ansolabehere, Access Versus Integrity in Voter Identification Requirements, 63
N.Y.U. ANN. SURV. AM. L. 613, 620 (2008); see also Ansolabehere Depo. at 304.
(acknowledging “overblown” rhetoric by voter-ID opponents). This is more than enough
for Texas to satisfy its burden on the “purpose” prong of section 5 when there is no direct
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evidence of racially discriminatory purpose.6 To require anything more would contradict the Supreme Court’s Fifteenth Amendment case law and raise grave constitutional questions under Northwest Austin.
A. SB 14 Complies With the Fifteenth Amendment.
Texas does not dispute DOJ’s contention that section 5 requires this Court to deny preclearance if SB 14 violates the Fifteenth Amendment. See DOJ COLs at 59. The language of section 5 tracks the Fifteenth Amendment, and any law that violates the
Fifteenth Amendment will by definition have the “purpose or effect” of doing so. DOJ’s argument appears to be that Section 5’s “purpose” prong does not extend beyond the prohibitions of the Fifteenth Amendment, and Texas can satisfy its burden by showing that SB 14 complies with the Fifteenth Amendment. See DOJ COL at 59.
Texas also agrees with DOJ that Myers v. Anderson, 238 U.S. 368 (1915), and
Guinn v. United States, 238 U.S. 347 (1915), remain good law and should control the discriminatory-purpose inquiry. But Myers is a major problem for DOJ because it upheld a voting qualification based on the payment of property taxes. This requirement had a disparate impact on minorities, yet the Myers Court refused to treat those effects as
“circumstantial” evidence of discriminatory purpose because there was a “discernable” reason “other than discrimination” on which the law “may rest”:
We put all question of the constitutionality of this standard out of view as it contains no express discrimination repugnant to the 15th Amendment, and it is not susceptible of being assailed on account of an alleged wrongful
6 Texas has already explained in an earlier motion in limine why no adverse inference should be drawn from an assertion of legislative privilege, and need not repeat those arguments here.
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motive on the part of the lawmaker or the mere possibilities of its future operation in practice, and because, as there is a reason other than discrimination on account of race or color discernible upon which the standard may rest, there is no room for the conclusion that it must be assumed, because of the impossibility of finding any other reason for its enactment, to rest alone upon a purpose to violate the 15th Amendment.
238 U.S. at 379 (emphasis added). DOJ tries to downplay this passage by highlighting the “must be assumed” language, but one only need to read the full opinion to see that
DOJ cannot avoid the impact of Myers. Once the Myers Court had concluded that there was a “discernable” reason “other than discrimination race or color” on which the law
“may rest,” it refused to consider further whether the legislature might have been motivated by a racially discriminatory purpose—even though the voting qualification in that case had an undeniable disparate impact on minority voters.
DOJ is also wrong to suggest that Guinn purports to establish only a “sufficient condition” for a Fifteenth Amendment violation. Although Guinn invalidated an unconstitutional voting qualification, the opinion makes clear that a facially neutral voting qualifications must be sustained under the Fifteenth Amendment “if it is possible to discover any basis of reason” for that standard:
It is true it contains no express words of an exclusion from the standard which it establishes of any person on account of race, color, or previous condition of servitude, prohibited by the 15th Amendment, but the standard itself inherently brings that result into existence since it is based purely upon a period of time before the enactment of the 15th Amendment, and makes that period the controlling and dominant test of the right of suffrage. In other words, we seek in vain for any ground which would sustain any other interpretation but that the provision, recurring to the conditions existing before the 15th Amendment was adopted and the continuance of which the 15th Amendment prohibited, proposed by in substance and effect lifting those conditions over to a period of time after the Amendment, to make them the basis of the right to suffrage conferred in direct and positive
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disregard of the 15th Amendment. And the same result, we are of opinion, is demonstrated by considering whether it is possible to discover any basis of reason for the standard thus fixed other than the purpose above stated.
Guinn v. U.S., 238 U.S. 347, 364–65 (1915) (emphasis added). If it is possible to discover “any ground” or “any basis of reason” for facially neutral voting qualifications, they must be sustained under the Fifteenth Amendment; otherwise, they must be invalidated. Crawford holds that there is a “basis of reason” for photo-ID requirements
(deterring and detecting voter fraud and safeguarding public confidence in elections). SB
14 therefore complies with the Fifteenth Amendment as interpreted in Myers and Guinn.
When a voter qualification is neutral on its face and there is no direct evidence of racially discriminatory purpose, it will comply with the Fifteenth Amendment so long as there is a basis in reason for it—even if it imposes a disparate impact on racial minorities.
B. DOJ Has No Evidence of Racially Discriminatory Purpose.
DOJ’s “circumstantial evidence” falls into three categories: (1) Assertions that SB
14 will have a disparate impact on racial minorities; (2) Evidence that past legislatures considered and rejected weaker photo-ID requirements; and (3) Evidence that SB 14’s supporters availed themselves of various legislative procedures established under parliamentary rules to ensure the bill’s passage in 2011. None of this is evidence of racially discriminatory purpose.
DOJ asserts that minorities are less likely than whites to have photo ID, but it bases this assertion solely on Ansalobehere’s VRNID list, which fails to account for federal ID, wildly overstates the number of registered voters without photo ID, and biases its analysis in favor of finding Hispanic non-matches. Survey research shows that
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minorities are no less likely than whites to have the photo ID required by SB 14, and the
social-science literature showed prior to SB 14’s enactment that photo-ID laws do not reduce turnout. DOJ is grasping at straws by claiming that the Texas legislature intended to harm minorities when DOJ’s evidence of an ID-possession gap is questionable at best and when the States that enacted similar requirements before 2011 did not experience a measurable reduction in turnout among minority voters. Even if this Court were to believe DOJ’s characterization of the effects of SB 14, a law’s disparate impact on racial minorities can qualify as evidence of discriminatory purpose only when there is no other possible race-neutral explanation for the law. See, e.g., Myers, 238 U.S. 368. Here, the
Supreme Court has held that photo-ID requirements serve the legitimate purposes of deterring and detecting voter fraud and safeguarding public confidence in the electoral system. See Crawford, 553 U.S. 181. The Supreme Court’s conclusion on this matter controls this case.
DOJ notes that SB 14 is more “restrictive” than versions that were rejected by previous Texas legislatures, but what does this have to do with racially discriminatory purpose? The legislature that enacted SB 14 was more heavily Republican than the previous legislatures, and the Democrats who fought strenuously to defeat the previous bills can scarcely complain that the Legislature should have considered such measures in
2011. DOJ also complains about “deviations” from normal legislative procedures, but there is nothing nefarious about the process that produced SB 14. Voter-ID laws are popular across the political spectrum, and elected officials frequently take the steps necessary to pass legislation that enjoys broad public support. DOJ’s fixation on the
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Arlington Heights factors ignores that these factors are mere tools to investigate the underlying question of racially discriminatory purpose. Merely noting a departure from established procedures under Arlington Heights proves nothing absent a nexus to a
plausible theory of racial discrimination. For example, Congress did not engage in a racist maneuver departing from normal procedures to enact the Affordable Care Act.
Finally, DOJ is wrong to assert that SB 14 “cannot . . . prevent noncitizen voting.”
SB 14 will prevent undocumented aliens from voting because undocumented aliens are unable to obtain driver’s licenses without presenting documented proof of lawful residence. When registering to vote, by contrast, an undocumented alien needs only to
sign a form attesting to his citizenship and is not required to present any documentation
of citizenship. In addition, in-person voter fraud has occurred in Texas, and in all events
Crawford holds that States may enact photo-ID requirements even if there are no documented cases of voter impersonation in that State. 553 U.S. 181. For DOJ to invoke the “scant evidence of in-person voter fraud” in Texas as a reason to strike down SB 14 shows that DOJ has not accepted the Supreme Court’s ruling in Crawford.
Many States require photo-ID requirements for voting, including non-Southern
States such as Pennsylvania and New Hampshire and non-Republican States such as
Rhode Island. The Supreme Court has held such laws are legitimate fraud-prevention mechanisms. It ignores reality for DOJ to analogize SB 14 to the Grandfather Clause that the Supreme Court invalidated in Guinn, or the racially gerrymandered district that the
Court nixed in Gomillion v. Lightfoot.
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CONCLUSION
SB 14 neither has the purpose, nor will have the effect, or denying or abridging the right to vote on account of race or color, or because of membership in a language minority group. Texas is entitled to prompt preclearance of SB 14.
53 Case 1:12-cv-00128-RMC-DST-RLW Document 264 Filed 07/01/12 Page 62 of 67
Dated: July 1, 2012
Respectfully submitted.
GREG ABBOTT Attorney General of Texas
DANIEL T. HODGE First Assistant Attorney General
JONATHAN F. MITCHELL Solicitor General
/s/ Patrick K. Sweeten PATRICK K. SWEETEN Assistant Attorney General ADAM W. ASTON Principal Deputy Solicitor General ARTHUR C. D’ANDREA Assistant Solicitor General MATTHEW H. FREDERICK Assistant Attorney General
209 West 14th Street P.O. Box 12548 Austin, Texas 70711-2548 (512) 936-1695
COUNSEL FOR THE STATE OF TEXAS
54 Case 1:12-cv-00128-RMC-DST-RLW Document 264 Filed 07/01/12 Page 63 of 67
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document is being served by CM/ECF and/or electronic mail on _____, 2012 on the following:
Elizabeth Stewart Westfall Jennifer Lynn Maranzano Daniel J. Freeman Bruce I. Gear Meredith E.B. Bell-Platts U.S. DEPARTMENT OF JUSTICE Civil Rights Division, Voting Section 950 Pennsylvania Avenue, NW NWB-Room 7202 Washington, DC 20530 (202) 305-7766/Fax: (202) 307-3961 Email: [email protected] Email: [email protected] Email: [email protected] Email: [email protected] Email: [email protected] Counsel for the United States
Chad W. Dunn BRAZIL & DUNN 4201 FM 1960 West, Suite 530 Houston, TX 77068 (281) 580-6310 Email: [email protected]
J. Gerald Hebert Attorney at Law 191 Somerville Street, #405 Alexandria, VA 22304 Telephone: 703-628-4673 [email protected] Counsel for Eric Kennie, Anna Burns, Michael Montez, Penny Pope, Marc Veasey, Jane Hamilton, David De La Fuente, Lorraine Birabil, Daniel Clayton, and Sergio Deleon
Ezra D. Rosenberg Michelle Hart Yeary DECHERT LLP 902 Carnegie Center, Suite 500
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Princeton, NJ 08540 (609) 955-3200/Fax: (609) 955-3259 Email: [email protected] Email: [email protected]
Jon M. Greenbaum Mark A. Posner Robert A. Kengle LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW 1401 New York Avenue, NW, Suite 400 Washington, DC 20005 (202) 662-8325 Email: [email protected] Email: [email protected] Email: [email protected]
Myrna Perez Ian Arthur Vandewalker Wendy Robin Weiser THE BRENNAN CENTER FOR JUSTICE AT NYU LAW SCHOOL 161 Avenue of the Americas, Floor 12 New York, NY 10013-1205 (646) 292-8329/Fax: (212)463-7308 Email: [email protected] Email: [email protected] Email: [email protected]
Robert Stephen Notzon 1507 Nueces Street Austin, TX 78701-1501 (512) 474-7563 Fax: (512) 852-4788 Email: [email protected]
Victor L. Goode NAACP National Headquarters 4805 Mt. Hope Dr. Baltimore, Maryland 21215-3297 (410) 580-5120 Email: [email protected] Jose Garza Law Office of Jose Garza 7414 Robin Rest Dr.
56 Case 1:12-cv-00128-RMC-DST-RLW Document 264 Filed 07/01/12 Page 65 of 67
San Antonio, Texas 98209 (210) 392-2856 (phone) Email: [email protected]
Gary L Bledsoe Law Office of Gary L. Bledsoe and Associates 316 West 12th Street, Suite 307 Austin, Texas 78701 (512) 322-9992 Email: [email protected] Counsel for Texas State Conference of NAACP Branches, Mexican American Legislative Caucus of the Texas House of Representatives
Douglas H. Flaum Michael B. de Leeuw Adam Harris FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP One New York Plaza New York, New York 10004-1980 (212) 859-8000 Email: [email protected] Email: [email protected] Email: [email protected]
Ryan Haygood Natasha M. Korgaonkar Leah C. Aden Dale E. Ho Debo P. Adegbile Elise C. Boddie NAACP Legal Defense and Educational Fund, Inc. 99 Hudson Street, Suite 1600 New York, New York 10013 (212) 965-2200 (212) 226-7592 Email: [email protected] Email: [email protected] Email: [email protected] Email: [email protected] Email: [email protected] Email: [email protected] Counsel for Texas League of Young Voters Education Fund, Imani Clark, KiEssence Culbreath, Demariano Hill, Felicia Johnson, Dominique Monday, and Brianna Williams
57 Case 1:12-cv-00128-RMC-DST-RLW Document 264 Filed 07/01/12 Page 66 of 67
John Kent Tanner 3743 Military Road, NW Washington, DC 20015 (202) 503-7696 Email: [email protected]
Nancy Abudu Katie O’Connor Laughlin McDonald AMERICAN CIVIL LIBERTIES UNION FOUNDATION INC 230 Peachtree Street NW, Suite 1440 Atlanta, GA 30303 (404) 523-2721 Email: [email protected] Email: [email protected] Email: [email protected]
Arthur B. Spitzer American Civil Liberties Union of the Nation’s Capital 4301 Connecticut Avenue, N.W., Suite 434 Washington, D.C. 20008 (202) 457-0800 Email: [email protected]
Lisa Graybill Rebecca Robertson American Civil Liberties Union Foundation of Texas 1500 McGowan Street Houston, Texas 77004 (713) 942-8146 Email: [email protected] Email: [email protected]
Penda Hair Kumiki Gibson Advancement Project 1220 L Street, NW, Suite 850 Washington, DC 20005 (202) 728-9557 Email: [email protected] Email: [email protected]
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Counsel for Justice Seekers, League of Women Voters of Texas, Texas Legislature Black Caucus, Donald Wright, Peter Johnson, Ronald Wright, Southwest Workers Union and La Union Del Pueblo Entero
Nina Perales Amy Pedersen MEXICAN AMERICAN LEGAL DEFENSE & EDUCATIONAL FUND, INC. 110 Broadway, Suite 300 San Antonio, TX 78205 (210) 224-5476 Email: [email protected] Email: [email protected] Counsel for Mi Familia Vota Education Fund, Southwest Voter Registration Education Project, Nicole Rodriguez, Victoria Rodriguez
/s/ Patrick K. Sweeten PATRICK K. SWEETEN Assistant Attorney General
59