IN THE SUPREME COURT OF THE UNITED STATES _______________ No. A-______ UNITED STATES, APPLICANT v. STATE OF TEXAS; NANDITA BERRY, in her Official Capacity as Texas Secretary of State; STEVE MCGRAW, in his Official Capacity as Director of the Texas Department of Public Safety _______________ EMERGENCY APPLICATION TO VACATE THE STAY OF FINAL JUDGMENT PENDING APPEAL ISSUED BY THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________ Pursuant to Rule 23 of the Rules of this Court and the All Writs Act, 28 U.S.C. 1651, the Solicitor General, on behalf of the United States, respectfully requests an emergency order vacating the October 14, 2014, order of the United States Court of Appeals for the Fifth Circuit staying the district court’s permanent injunction of Texas Senate Bill 14 (S.B. 14) pending appeal. The emergency order should be granted, and the district court’s permanent injunction left in force, pending a decision by the court of appeals in due course and the timely filing and disposition of a petition for a writ of certiorari. On October 9, 2014, the district court determined that S.B. 14 violates, inter alia, Section 2 of the Voting Rights Act of 1965, both because it was enacted with a racially discriminatory purpose and because it has a prohibited - 2 ­ discriminatory result. In a comprehensive 147-page opinion, the district court determined that the law will prevent more than 600,000 registered Texas voters from voting in person during the State’s early voting period or on Election Day because they lack an appropriate form of S.B. 14-compliant identification, and that a significantly disproportionate percentage of such voters are African-American and Hispanic. The district court further found that S.B. 14 interacts with social and historical conditions in Texas to make it more difficult for minority voters to obtain S.B. 14-compliant identification, thereby resulting in an unequal opportunity for minority voters to participate in the political process. This result was not accidental. Rather, the court found, the Texas Legislature’s passage of S.B. 14 was motivated at least in part by the law’s detrimental effects on African-American and Hispanic voters. In light of those findings, and in an exercise of its equitable discretion to redress Section 2 violations, the district court barred Texas from enforcing S.B. 14’s photographic identification requirements -- which, to date, have never been applied to a federal general election. The district court ordered Texas to reinstate preexisting practices that the State had adopted in 2003 and that had remained in effect until Texas first enforced S.B. 14 in a statewide election in November 2013 in the wake of this Court’s decision in Shelby County v. - 3 ­ Holder, 133 S. Ct. 2612 (2013). Those practices are the ones that Texas has enforced in the five most recent general elections for federal office; the district court expressly found them sufficient to ensure that voters who show up to the polls are who they claim to be. Having been on notice for almost a year that a decision would be rendered close to this November’s election, Texas cannot now contend that it is injured, let alone irreparably so, by having to remind poll workers about past voting procedures with which they are already intimately familiar. This is especially so given the State’s failure to obtain judicial preclearance for S.B. 14 in 2012 for precisely the same reasons: S.B. 14 has a harsh and discriminatory effect on African-American and Hispanic voters. Yet, upon the State’s emergency application, the court of appeals reinstated S.B. 14 without even attempting to determine the State’s likelihood of success on the merits, and without evaluating the irreparable harm to the respective parties. Rather, the court of appeals acted on the basis of what it perceived to be a per se rule against changing any state voting procedure when an election is imminent. But no such rule exists, and the court of appeals clearly and demonstrably erred in failing to apply the established stay factors. When those factors are properly applied, Texas cannot show that a stay is appropriate under the facts and circumstances of this case. - 4 ­ Moreover, without this Court’s intervention, registered voters across Texas will be irreparably harmed. The district court’s permanent injunction prevents the potential disenfranchisement of over 600,000 registered Texas voters who otherwise will be unable to cast a ballot that will be counted. It also prevents widespread confusion at the polls. Indeed, the district court expressly found Texas’s voter education and implementation of S.B. 14 to be “woefully lacking,” “grossly” underfunded,” and “insufficient.” Of equal importance, the district court’s permanent injunction avoids subjecting all Texans to a voting regime that was enacted, at least in part, with a racially discriminatory purpose. Finally, given the increasing prevalence of restrictive voter identification practices across the country, and the importance of subjecting such laws to meaningful judicial review, this case could -- and likely would -- be reviewed in this Court upon the final disposition on appeal if the law is upheld. As it has done in other voting rights cases, this Court should vacate the court of appeals’ stay and permit voting under the regime that has prevailed in federal general elections in Texas for the last decade. STATEMENT 1. Section 2 of the Voting Right Act of 1965 (VRA) effects a “permanent, nationwide ban on racial discrimination in - 5 ­ voting.” Shelby Cnty. v. Holder, 133 S. Ct. 2612, 2631 (2013). It prohibits any “voting qualification or prerequisite to voting or standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” 52 U.S.C. 10301(a).1 The VRA defines the terms “vote” and “voting” to encompass “all action necessary to make a vote effective,” including “registration, * * * casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast.” 52 U.S.C. 10310(c). In 1982, Congress amended Section 2 to make clear that a statutory violation can be established by showing discriminatory intent, a discriminatory result, or both. See 52 U.S.C. 10301(a) and (b); S. Rep. No. 417, 97th Cong., 2d Sess. (1982). A prohibited discriminatory result is established where, “based on the totality of circumstances,” members of a racial group “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” 52 U.S.C. 10301(b). The “essence” of a Section 2 claim is that a challenged voting 1 On September 1, 2014, the Office of Law Revision Counsel of the United States House of Representatives reclassified all United States Code provisions relating to voting and elections. Such code provisions, including those for the VRA previously contained in Title 42, have been transferred into a new Title 52, entitled “Voting and Elections.” Comprehensive charts showing the old and new code citations are available online at http://uscode.house.gov/editorialreclassification/t52/index.html. - 6 ­ practice “interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by [minority] and white voters to elect their preferred representatives.” Thornburg v. Gingles, 478 U.S. 30, 47 (1986). To remedy a Section 2 violation, the statute authorizes a court to enter injunctive relief “block[ing]” a voting law from “going into effect.” Shelby Cnty., 133 S. Ct. at 2619. 2. a. Texas has required some form of identification for in-person voting for more than a decade. From 2003 until 2013, a prospective voter could cast a ballot by presenting his or her voter registration certificate, which is a document issued free of charge to every registered voter upon acceptance of an eligible citizen’s registration application. Veasey v. Perry, No. 13-CV-00193, 2014 WL 5090258 (S.D. Tex. Oct. 9, 2014), slip op. (Op.) 13. In-person voters without a registration certificate still could cast a regular ballot by executing an affidavit of eligibility, and by presenting an alternate form of state-specified identification, including a current or expired driver’s license; photographic identification such as an employee or student identification card; a utility bill, bank statement, paycheck, or government document showing the name and address of the voter; or official mail from a governmental agency addressed to the voter. While this regime was in effect -- a period during which approximately 20 million votes were - 7 ­ cast in general elections -- only two cases of in-person voter impersonation fraud were prosecuted to conviction. Ibid. b. On May 27, 2011, Texas enacted Senate Bill 14, which adopted a new, stricter regime for in-person voting. Op. 1. To cast a regular ballot on Election Day or during early voting, S.B. 14 generally requires in-person voters to present one of a limited number of government-issued photo identification documents: (1) a driver’s license, personal ID card, or license to carry a concealed handgun issued by the Texas Department of Public Safety (DPS); (2) a United States military ID card containing a photo; (3) a United States citizenship certificate containing a photo; or (4) a United States passport.2 Op. 18-19. For such identification to be accepted, it must be unexpired or have been expired for no more than 60 days. Op. 18. S.B. 14 also created a new form of voter identification -­ the election identification certificate (EIC). Voters who lack other acceptable forms of identification can obtain an EIC free of charge if they can travel to a DPS office, establish eligibility to vote, and present documentary proof of United States citizenship and identity.