IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Transcription

1 Case 1:12-cv 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. ERIC H. HOLDER, JR., in his Official capacity as Attorney General of the United States, Case No. 1:12-cv (DST, RMC, RLW) 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

2 Case 1:12-cv 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 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 B. SB 14 Will Not Reduce Turnout or Have a Race-Based Effect C. Data Matching Efforts Do Not Indicate that SB 14 Will Have a Discriminatory Impact DOJ s No-Match Lists Include Ineligible Persons and Voters Who Will Not Be Affected by SB The DOJ Used Matching Procedures Biased Against Matching Female and Hispanic Voters 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 D. Survey Data Confirm that SB 14 Will Not Have a Disparate Impact on Any Group of Voters 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 A. There Is No Evidence that SB 14 Was Passed for the Purpose of Denying or Abridging any Texas Citizen s Right to Vote ii

3 Case 1:12-cv RMC-DST-RLW Document 264 Filed 07/01/12 Page 3 of 67 B. The State s Interest in Detecting and Deterring Voter Fraud Provides a Valid Justification for SB Prosecuted Cases Do Not Represent the Entire Universe of Voter Fraud The Perception of Voter Fraud Reduces Confidence in the Electoral System SB 14 Will Prevent Certain Classes of Non-Citizens from Voting. 33 C. Alleged Procedural Departures Do Not Indicate a Discriminatory Purpose 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 A. DOJ Does Not Even Contend That SB 14 Has the Effect of Denying or Abridging the Right to Vote 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 C. There Is No Racial Disparity in ID Possession 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 E. Courts Have Consistently Upheld Laws with a Disparate Impact on Minorities Under Section 2 of the VRA, Which Is Worded Similarly to Section 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 A. SB 14 Complies With the Fifteenth Amendment iii

4 Case 1:12-cv RMC-DST-RLW Document 264 Filed 07/01/12 Page 4 of 67 B. DOJ Has No Evidence of Racially Discriminatory Purpose CONCLUSION iv

5 Case 1:12-cv RMC-DST-RLW Document 264 Filed 07/01/12 Page 5 of 67 INDEX OF AUTHORITIES Cases Allen v. State Bd. of Elec., 393 U.S. 544 (1969) Beer v. United States, 425 U.S. 130 (1976)... 48, 49 Brown v. Board of Education, 347 U.S. 483 (1954) Burdick v. Takushi, 504 U.S. 428, (1992) Coleman v. Court of Appeals of Maryland, 132 S.Ct. 1327, 1336 (2012) 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) Georgia v. Billups, 554 F.3d 1340 (2009) Gomillion v. Lightfoot 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) Ortiz v. City of Philadelphia Office of City Com'rs Voter Registration, 28 F.3d 306, 308 (3rd Cir. 1994) Perkins v. Matthews, 400 U.S. 379, (1971) Richardson v. Ramirez, 418 U.S. 24 (1974) Shelby County v. Holder, 679 F.3d 848 (D.C. Cir. 2012) v

6 Case 1:12-cv RMC-DST-RLW Document 264 Filed 07/01/12 Page 6 of 67 Village of Arlington Heights v. Metropolitan Hous. Development Corp., 429 U.S. 252 (1977) Wesley v. Collins, 791 F.2d 1255 n.8 (6th Cir. 1986)... 46, 51 Rules and Statutes 28 C.F.R (b)-(c) U.S.C. 1973b(f)(2) U.S.C. 1973c(a) U.S.C. 1973c(b) U.S.C. 1973(c) U.S.C. 1973(f-2) U.S. Const. art. XIV, , 47, 48 Fed. R. Evid. 801(b)... 1 Fed. R. Evid passim 37 Tex. Admin. Code 15.35, Tex. Elec. Code (a) Tex. Elec. Code Tex. Elec. Code (a) (b) Tex. Elec. Code Tex. Elec. Code (a) Tex. Elec. Code (a) Tex. Elec. Code , 19 Tex. Elec. Code (a) vi

7 Case 1:12-cv RMC-DST-RLW Document 264 Filed 07/01/12 Page 7 of 67 Tex. Transp. Code (b)(4) Tex. Transp. Code (d) Tex. Transp. Code (f-4) Tex. Transp. Code (k) 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) vii

8 Case 1:12-cv RMC-DST-RLW Document 264 Filed 07/01/12 Page 8 of 67 INDEX OF AUTHORITIES viii

9 Case 1:12-cv RMC-DST-RLW Document 264 Filed 07/01/12 Page 9 of 67 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 DOJ s assertion that the Legislature did not investigate concerns raised about the bill s impact on minority voters is conclusory and unsupported 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 , 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 , 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) HB 1706 and HB 218 included both photo ID and non-photo ID in the list of required identification. JA , ; JA , 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 lowincome Latinos might not have a driver s license, see JA , and one House member s allegation that HB 218 would have a negative impact on elderly Latino voters. JA These statements inadmissible hearsay, see Fed. R. Evid. 802 (TA 2208), and do not establish notice of any purported fact or issue.

10 Case 1:12-cv RMC-DST-RLW Document 264 Filed 07/01/12 Page 10 of 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 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) 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 ). 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 ). Unlike the House, the Senate does not have a calendar committee. See K. Davis Depo. 264:10 12 (TA 2342). 2

11 Case 1:12-cv RMC-DST-RLW Document 264 Filed 07/01/12 Page 11 of 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 ). 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) The proposed finding is unsupported because the cited newspaper article (DE 299) is inadmissible hearsay. Fed. R. Evid. 802 (TA 2208) Texas denies that Senator Uresti s ethnicity or the demographics of his district are relevant. All Senate Democrats opposed HB 218. See JA 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 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 The Lieutenant 3

12 Case 1:12-cv RMC-DST-RLW Document 264 Filed 07/01/12 Page 12 of 67 Governor had no duty to call a second vote on the motion to suspend. Uresti Depo. 68:4 22 (TA 2515) The motion to suspend failed on the second vote by a party-line vote of 20 to 11. JA , Thus 11 Senators prevented consideration of a bill that had passed the House and was supported by 20 Senators Texas disputes the statement that the Senate adopt[ed] changes to the Senate s twothirds 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) Texas does not dispute the facts stated in this paragraph The characterization of support for the two-thirds rule and Rule 5.11(d) as singular exemption are unsupported by the cited source This proposed finding is unsupported. Both the newspaper article and the statement quoted therein are inadmissible hearsay. Fed. R. Evid. 802 (TA 2208) 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) 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. 4

13 Case 1:12-cv RMC-DST-RLW Document 264 Filed 07/01/12 Page 13 of 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) 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 The Senate considered SB 362 by a special order vote of 19 to 12. JA SB 362 passed the Senate by a vote of 19 to 12. JA 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 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 ). 5

14 Case 1:12-cv RMC-DST-RLW Document 264 Filed 07/01/12 Page 14 of 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: Both proponents and opponents discussed their respective positions, but the proposed finding is unsupported by the citation to McGeehan s testimony Texas does not dispute the factual statements in this paragraph 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 ) Texas does not dispute the factual statements in this paragraph 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) 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 ), 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 Anchia Depo. 123:2 126:23 (TA ). 6

15 Case 1:12-cv RMC-DST-RLW Document 264 Filed 07/01/12 Page 15 of Except for the statement that Representative Smith made presentations to Republican Party groups, the proposed findings are unsupported The proposed finding mischaracterizes the testimony. Ms. McGeehan testified that at least two of [the referrals] involve allegations of voter impersonation. JA 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) Texas does not dispute the factual statements in this paragraph The proposed findings are unsupported and mischaracterize the record. The filed version of SB 14 included six forms of photo ID. See JA The question to Senator Fraser was whether the forms of identification were the least restrictive options. JA Senator Fraser clarified that the type of identification that is most readily available appears to be a driver s license. JA This statement is confirmed by evidence of over 17 million unexpired, non-duplicative driver s licenses issued to non-deceased persons. Ansolabehere Report The proposed finding is speculative and unsupported. Ms. McCoy did not testify as to why Senator Fraser excluded non-photo ID from SB 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). 7

16 Case 1:12-cv RMC-DST-RLW Document 264 Filed 07/01/12 Page 16 of 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 The statement about the Texas Constitution is unsupported and inadmissible under Fed. R. Evid 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 ) 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 ) The proposed finding misrepresents the testimony of Mr. Brunson, who stated that he did not recall whether he had any such conversation Texas does not dispute the factual statements in this paragraph 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 Texas does not dispute the factual statement in this paragraph 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 Texas does not dispute the factual statements in this paragraph. 8

17 Case 1:12-cv RMC-DST-RLW Document 264 Filed 07/01/12 Page 17 of With the exception of the statement regarding Ms. McGeehan s understanding of Senator Davis s remarks, the proposed finding is unsupported 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 With the exception of the statement regarding the date of the request or the number of rounds of analysis, the proposed findings are unsupported Texas does not dispute the factual statements in this paragraph 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) 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 , and cautioned that it was impossible to generate fully reliable data. JA Texas denies that there is any particular significance to the phrase I am not advised. See McCoy Depo. 200:20, 201:1 2 (TA ) ( 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, 9

18 Case 1:12-cv RMC-DST-RLW Document 264 Filed 07/01/12 Page 18 of 67 see JA , including data from Indiana and Georgia confirming that minority turnout increased after those States implemented photo-id laws This paragraph is not supported by the cited portion of the record The record indicates that 41 amendments were proposed in the Senate. JA 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 The citations do not support the proposed finding, and the term unusual is vague The quotation is accurate, but the source is inadmissible hearsay. Fed. R. Evid The statement that Senate bill supporters and staff are unaware of basic facts related to SB 14 is vague, conclusory, and unsupported Texas does not dispute the factual statement in this paragraph 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 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 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 ) 10

19 Case 1:12-cv RMC-DST-RLW Document 264 Filed 07/01/12 Page 19 of 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 ; JA 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. ) The proposed finding is unsupported to the extent it implies that Rep. Harless knew about Sen. Williams s request The proposed finding is inaccurate. Rep. Harless answered Rep. Anchia s questions about voter education and materials in languages other than English. See JA 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 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. 11

20 Case 1:12-cv RMC-DST-RLW Document 264 Filed 07/01/12 Page 20 of Sixty-three amendments were offered in the House, ten of which were withdrawn. See JA Statements that amendments would mitigate the bill s impact on minority voters are unfounded and inadmissible hearsay. Fed. R. Evid 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 Harless did not refus[e] to state specifically that SB 14 applied equally to minority and nonminority voters. Harless was asked whether SB 14 applied to minorities. She responded that SB 14 applies to everyone equally across the state, JA , and It applies to all Texans. JA 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) 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 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) The proposed finding is unsupported except to the extent it states the content of the conference committee report. 12

21 Case 1:12-cv RMC-DST-RLW Document 264 Filed 07/01/12 Page 21 of 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) 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 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 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 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 (TA 835) 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 SB 14 does not bar the use of expired IDs. It expressly permits the use of IDs that have expired within 60 days. JA Cf. U.S. FOF 13A. 13

22 Case 1:12-cv RMC-DST-RLW Document 264 Filed 07/01/12 Page 22 of DPS agreed with the recommendation to expand the list of secondary documents for election identification certificates. Davio Depo. 60:17 61:13 (TA ). 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 In some parts of Texas, individuals must travel long distances to obtain many basic services. See Davio Depo. 151:25 152:6 (TA ); 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 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, (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 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 14

23 Case 1:12-cv RMC-DST-RLW Document 264 Filed 07/01/12 Page 23 of 67 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 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 The cited passage of Billups merely addressed the standing of voters without photo ID. See Billups, 554 F.3d at The court did not determine, nor does the cited passage establish, that any voter had been adversely impacted or unduly burdened. Cf. JA 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) 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 15

24 Case 1:12-cv RMC-DST-RLW Document 264 Filed 07/01/12 Page 24 of 67 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 ) C. Data Matching Efforts Do Not Indicate that SB 14 Will Have a Discriminatory Impact 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 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.) 16

25 Case 1:12-cv RMC-DST-RLW Document 264 Filed 07/01/12 Page 25 of 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 SB 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 ). 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 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 17

26 Case 1:12-cv RMC-DST-RLW Document 264 Filed 07/01/12 Page 26 of 67 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 (a), , (a) (b), (TA 2171, 2172, 2174, 2178); see also Ingram Depo. 23:9 25:5 (TA ) 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 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, (TA ). 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 DOJ s exclusion of expired identifications resulted in over 400,000 additional nonmatches in its lists. Ansolabehere Rebuttal 39 (417,319); Sager Supplemental 27 (468,775) (TA 892). 18

27 Case 1:12-cv RMC-DST-RLW Document 264 Filed 07/01/12 Page 27 of 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 (TA ). SB 14 imposes no burden on these voters. 2. The DOJ Used Matching Procedures Biased Against Matching Female and Hispanic Voters 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) 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) 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 19

28 Case 1:12-cv RMC-DST-RLW Document 264 Filed 07/01/12 Page 28 of 67 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 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 , 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 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 20

29 Case 1:12-cv RMC-DST-RLW Document 264 Filed 07/01/12 Page 29 of 67 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 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 ) 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). 21

30 Case 1:12-cv RMC-DST-RLW Document 264 Filed 07/01/12 Page 30 of 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 ) 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 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 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

31 Case 1:12-cv RMC-DST-RLW Document 264 Filed 07/01/12 Page 31 of Upon request, Professor Shaw s phone append methodology has been disclosed to the Defendants. See US FOF 43, DOJ inaccurately describes Professor Shaw s survey. See US FOF 44. The survey questions, including the order of survey questions, speak for themselves 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 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 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 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. 23

32 Case 1:12-cv RMC-DST-RLW Document 264 Filed 07/01/12 Page 32 of 67 A. There Is No Evidence that SB 14 Was Passed for the Purpose of Denying or Abridging any Texas Citizen s Right to Vote The Attorney General s contention that the consistently stated purpose of SB 14 cloaked a purported secret discriminatory purpose (US FOF ) 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 (Statement of Sen. Fraser) ( It is imperative that we protect the public s confidence in elections by deterring and detecting voter fraud. ); JA (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 (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 ); 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) The DOJ s own legislative witnesses could point to no personal knowledge of facts indicating discriminatory purpose. See Texas Proposed FOF

33 Case 1:12-cv RMC-DST-RLW Document 264 Filed 07/01/12 Page 33 of 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 ); 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 ; JA ; JA ( [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 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 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 25