Case 2:13-cv-00193 Document 628 Filed in TXSD on 10/09/14 Page 1 of 147 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION MARC VEASEY, et al, § § Plaintiffs, § VS. § CIVIL ACTION NO. 13-CV-00193 § RICK PERRY, et al, § § Defendants. § OPINION The right to vote: It defines our nation as a democracy. It is the key to what Abraham Lincoln so famously extolled as a “government of the people, by the people, [and] for the people.”1 The Supreme Court of the United States, placing the power of the right to vote in context, explained: “Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.”2 In this lawsuit, the Court consolidated four actions challenging Texas Senate Bill 14 (SB 14), which was signed into law on May 27, 2011. The Plaintiffs and Intervenors (collectively “Plaintiffs”)3 claim that SB 14, which requires voters to display one of a 1 Gettysburg Address. 2 Reynolds v. Sims, 377 U.S. 533, 562 (1964). 3 In No. 13-cv-193 (Veasey Case), the Veasey Plaintiffs are Marc Veasey, Floyd James Carrier, Anna Burns, Michael Montez, Penny Pope, Jane Hamilton, Sergio DeLeon, Oscar Ortiz, Koby Ozias, John Mellor-Crummey, Evelyn Brickner, Gordon Benjamin, Ken Gandy, and League of United Latin American Citizens (LULAC). D.E. 109, 385. Intervenors in the Veasey Case include Texas Association of Hispanic County Judges and County Commissioners (HJ&C) (HJ&C Intervenors) (D.E. 153, 385) and Texas League of Young Voters Education Fund 1 Case 2:13-cv-00193 Document 628 Filed in TXSD on 10/09/14 Page 2 of 147 very limited number of qualified photo identifications (IDs) to vote, creates a substantial burden on the fundamental right to vote, has a discriminatory effect and purpose, and constitutes a poll tax. Defendants4 contend that SB 14 is an appropriate measure to combat voter fraud, and that it does not burden the right to vote, but rather improves public confidence in elections and, consequently, increases participation. This case proceeded to a bench trial, which concluded on September 22, 2014. Pursuant to Fed. R. Civ. P. 52(a), after hearing and carefully considering all the evidence, the Court issues this Opinion as its findings of fact and conclusions of law. The Court holds that SB 14 creates an unconstitutional burden on the right to vote, has an impermissible discriminatory effect against Hispanics5 and African-Americans, and was imposed with an unconstitutional discriminatory purpose. The Court further holds that SB 14 constitutes an unconstitutional poll tax. (TLYV) and Imani Clark (TLYV Intervenors) (D.E. 73). In No. 13-cv-263 (US Case), the Plaintiff is the United States of America. D.E. 1. In No. 13-cv-291 (NAACP Case), the Plaintiffs are Texas State Conference of NAACP Branches (NAACP) and Mexican American Legislative Caucus of the Texas House of Representatives (MALC). D.E. 1. In No. 13-cv-348 (Ortiz Case), the Plaintiffs are Eulalio Mendez Jr., Lionel Estrada, Lenard Taylor, Estela Garcia Espinoza, Margarito Martinez Lara, Maximina Martinez Lara, and La Union Del Pueblo Entero, Inc. (LUPE). D.E. 4. 4 Defendants include the State of Texas, Rick Perry in his official capacity as Governor of the State of Texas, John Steen in his official capacity as Texas Secretary of State, and Steve McCraw in his official capacity as Director of the Texas Department of Public Safety. Mr. Steen was Texas Secretary of State when this action was filed. The current Texas Secretary of State is Nandita Berry. 5 For purposes of this Opinion, the terms “Hispanic” and “Latino” will be used interchangeably. 2 Case 2:13-cv-00193 Document 628 Filed in TXSD on 10/09/14 Page 3 of 147 I. TEXAS’S HISTORY WITH RESPECT TO RACIAL DISPARITY IN VOTING RIGHTS The careful and meticulous scrutiny of alleged infringement of the right to vote, which this Court is legally required to conduct, includes understanding the history of impairments that have plagued the right to vote in Texas, the racially discriminatory motivations and effects of burdensome qualifications on the right to vote, and their undeniable legacy with respect to the State’s minority population. This uncontroverted and shameful history was perhaps summed up best by Reverend Peter Johnson, who has been an active force in the civil rights movement since the 1960s. “They had no civil rights towns or cities in the State of Texas because of the brutal, violent intimidation and terrorism that still exists in the State of Texas; not as overt as it was yesterday. But east Texas is Mississippi 40 years ago.”6 State Senator Rodney Ellis testified about the horrific hate crime in the east Texas town of Jasper in the late 1990s in which James Byrd, an African-American man targeted for his race, was dragged down the street until he died.7 A few years later, two African- American city council members spearheaded the effort to name a highly-qualified African-American as police chief in Jasper. Thereafter, those city council members were 6 Johnson, D.E. 569, p. 10. 7 Ellis, D.E. 573, pp. 159-62. 3 Case 2:13-cv-00193 Document 628 Filed in TXSD on 10/09/14 Page 4 of 147 removed from their district council seats through “a strange quirk in the law” that allowed an at-large recall election.8 A. Access to the Polls This anecdote demonstrating Texas’s racially charged communities, the power of the polls, and the use of election devices to defeat the interests of the minority population is, unfortunately, no aberration. Dr. O. Vernon Burton has focused much of his career in American History on the issue of race relations.9 Dr. Burton testified about the use in Texas of various election devices to suppress minority voting from the early days of Texas through today. Other experts, including Dr. Chandler Davidson, a professor emeritus of sociology and political science at Rice University, and George Korbel, an attorney with an expertise in voting rights, corroborated Dr. Burton’s findings. This history is summed up as follows: 1895-1944: All-White Primary Elections o On the heels of Reconstruction, freed slaves and other minority men were just gaining access to the right to vote. The white primary method denied minority participation in primaries which effectively disenfranchised minority voters because Texas was dominated by a single political party (the Democratic Party) such that the primary election was the only election that mattered. The state law that mandated white primaries was found unconstitutional by the Supreme Court in 1927.10 o In response, the Texas Legislature passed a facially neutral law allowing the political parties to determine who was qualified to 8 Ellis, D.E. 573, p. 161. 9 Dr. Burton is Creativity Professor of Humanities, History, Sociology, and Computer Science at Clemson University. D.E. 376-2, p. 5. 10 Nixon v. Herndon, 273 U.S. 536 (1927). 4 Case 2:13-cv-00193 Document 628 Filed in TXSD on 10/09/14 Page 5 of 147 vote in their primaries, resulting in the parties banning minority participation. This law was held unconstitutional in 1944.11 1905-1970: Literacy and “Secret Ballot” Restrictions o The Terrell Election Law, which also enabled white primaries, prohibited voters from taking people with them to the polls to assist them in reading and interpreting the ballot. Only white Democratic election judges were permitted to assist these voters who could not verify that their votes were cast as intended. Because minority voters had not been taught to read while enslaved or were subject to post-Civil War limited and segregated educational opportunities, and could not use their own language interpreter, these restrictions were struck down in 1970 as rendering voting an empty ritual.12 1902-1966: Poll Taxes o The Texas Constitution included the requirement that voters pay a $1.50 poll tax13 as a prerequisite for voting.14 While race- neutral on its face, this was intended to, and had the effect of, suppressing the African-American vote. In 1964, the practice was eliminated as to federal elections when the 24th Amendment to the United States Constitution was adopted.15 o However, Texas retained the poll tax for elections involving only state issues and campaigns. This practice was ruled 11 Smith v. Allwright, 321 U.S. 649 (1944). 12 Garza v. Smith, 320 F. Supp. 131 (W.D. Tex. 1970), vacated and remanded on procedural grounds, 401 U.S. 1006 (1971), on appeal after remand, 450 F.2d 790 (5th Cir. 1971). 13 Dr. Burton notes that $1.50 is equivalent to $15.48 in current dollars. Burton, D.E. 376-2, p. 13 (report) (citations omitted). 14 A 1902 amendment, proposed by Acts 1901, 27th Leg., p. 322, S.J.R. No. 3 and adopted at the Nov. 4, 1902 election, added a provision requiring voters subject to poll tax to have paid the poll tax and hold a receipt therefor, or make affidavit of its loss. TEX. CONST. ART. VI, § 2 (amended 1966); see also TEX. CONST. ART. VIII, § 1 (historical notes, reflecting prior authorization for imposing poll tax among authorized taxes). 15 The Texas Legislature did not vote to ratify the 24th Amendment’s abolition of the poll tax until the 2009 legislative session. S.J. of Tex., 81st Leg., R.S. 2913 (2009) (HJR 39); H.J. of Tex., 81st Leg. R.S.