IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Transcription

1 Case 1:12-cv RMC-DST-RLW Document 349 Filed 10/22/12 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STATE OF TEXAS, Plaintiff, v. ERIC H. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES, et. al., Case No. 1:12-cv DST- RMC-RLW Defendants. DEFENDANT-INTERVENORS CROSS-MOTION FOR SUMMARY JUDGMENT ON CLAIM TWO OF TEXAS S AMENDED COMPLAINT Defendant-Intervenors 1 oppose Texas s Motion for Summary Judgment (Doc. 347) and file this cross-motion for summary judgment in favor of the Defendant and Defendant- Intervenors on Claim Two of the First Amended Expedited Complaint for Declaratory Judgment. 1 This Cross-Motion is submitted on behalf of all Defendant-Intervenors, specifically, the Texas State Conference of NAACP Branches and the Mexican American Legislative Caucus of the Texas House of Representatives; the Texas League of Young Voters Education Fund, Imani Clark, KiEssence Culbreath, Demariano Hill, and Dominique Monday; the Kennie Intervenors (Eric Kennie, Anna Burns, Michael Montez, Penny Pope, Marc Veasey, Jane Hamilton, David De La Fuente, Lorraine Birabil, Daniel Clayton, and Sergio Deleon); the Texas Legislative Black Caucus, the League of Women Voters of Texas, the Justice Seekers, Peter Johnson, Ronald Wright, and Donald Wright; Southwest Workers Union, La Union Del Pueblo Entero; Victoria Rodriguez, Nicole Rodriguez, Southwest Voter Registration Education Project, Mi Familia Vota Education Fund.

2 Case 1:12-cv RMC-DST-RLW Document 349 Filed 10/22/12 Page 2 of 7 As set forth more fully in the attached memorandum of points and authorities, Texas has failed to set forth any valid grounds for an order granting summary judgment in the State s favor. To the contrary, Shelby County and decades of Supreme Court precedent make clear that no genuine issue of material fact exists regarding the constitutionality of section 5 of the Voting Rights Act of 1965 or the Voting Rights Act Reauthorization and Amendments Act of Pursuant to Local Civil Rule 7, Defendant-Intervenors are filing a response to Texas s statement of material facts, an affirmative statement of material facts, a memorandum of points and authorities in support of this cross-motion and opposition, and a proposed order. Defendant- Intervenors do not request oral argument on these motions. If, however, the Court determines to entertain oral argument, Defendant-Intervenors would request an opportunity to participate in the argument. Defendant-Intervenors respectfully request that this court enter an order in the form attached to this cross-motion denying Texas s request for summary judgment and granting summary judgment in favor of the Defendant and Defendant-Intervenors. Dated: October 22, 2012 /s/ Ezra D. Rosenberg Ezra D. Rosenberg (D.C. Bar No ) Michelle Hart Yeary (Pro Hac Vice) Dechert LLP 902 Carnegie Center, Suite 500 Princeton, NJ (609) (phone) Ezra.rosenberg@dechert.com Michelle.yeary@dechert.com Jon Greenbaum (D.C. Bar No ) Mark A. Posner (D.C. Bar No )

3 Case 1:12-cv RMC-DST-RLW Document 349 Filed 10/22/12 Page 3 of 7 Robert A. Kengle Lawyers Committee for Civil Rights Under Law 1401 New York Ave., NW, Suite 400 Washington, D.C (202) (phone) bkengle@lawyerscommittee.org mposner@lawyerscommittee.org Wendy Weiser (Pro Hac Vice) Myrna Pérez (Pro Hac Vice) Ian Vandewalker (Pro Hac Vice) The Brennan Center for Justice at NYU Law School 161 Avenue of the Americas, Floor 12 New York, NY Wendy.weiser@nyu.edu Myrna.perez@nyu.edu Ian.vandewalker@nyu.edu Gary Bledsoe Law Office of Gary L. Bledsoe & Associates 316 West 12th St., Suite 307 Austin, TX (512) (phone) garybledsoe@sbcglobal.net Victor L. Goode NAACP National Headquarters 4805 Mt. Hope Dr. Baltimore, MD (410) (phone) vgoode@naacpnet.org Robert S. Notzon (D.C. Bar No. TX0020) The Law Office of Robert Notzon 1507 Nueces St. Austin, TX (512) (phone) Robert@notzonlaw.com

4 Case 1:12-cv RMC-DST-RLW Document 349 Filed 10/22/12 Page 4 of 7 Jose Garza Law Office of Jose Garza 7414 Robin Rest Dr. San Antonio, TX (210) (phone) garzapalm@aol.com Counsel for Defendant-Intervenors Texas State Conference of NAACP Branches and the Mexican American Legislative Caucus of Texas House Representatives Debo P. Adegbile (DC Bar No. NY0143) Elise C. Boddie (Pro Hac Vice) Ryan Haygood (DC Bar No. NY0141) Dale E. Ho (DC Bar No. NY0142) Leah C. Aden (Pro Hac Vice) Natasha M. Korgaonkar (Pro Hac Vice) NAACP Legal Defense and Educational Fund, Inc. 99 Hudson Street, Suite 1600 New York, NY (212) /Fax: (212) dadegbile@naacpldf.org FRIED, FRANK, HARRIS SHRIVER & JACOBSON LLP Douglas H. Flaum (Pro Hac Vice) Michael B. de Leeuw (Pro Hac Vice) Adam Harris (Pro Hac Vice) One New York Plaza New York, NY (212) Counsel for Texas League of Young Voters Education Fund, Imani Clark, Kiessence Culbreath, Demariano Hill, and Dominique Monday

5 Case 1:12-cv RMC-DST-RLW Document 349 Filed 10/22/12 Page 5 of 7 J. Gerald Hebert (D.C. Bar No ) Attorney at Law 191 Somerville Street, #405 Alexandria, VA Telephone: hebert@voterlaw.com Chad W. Dunn (D.C. Bar No ) Texas Bar No Brazil & Dunn LLP 4201 Cypress Creek Pkwy., Suite 530 Houston, Texas Telephone: (281) Facsimile: (281) chad@brazilanddunn.com Counsel for Kennie Defendant-Intervenors John Kent Tanner (D.C. Bar No ) 3743 Military Road, N.W. Washington, DC (202) john.k.tanner@gmail.com Nancy Abudu (Pro Hac Vice) Moffatt Laughlin McDonald (D.C. Bar No. WI0023) American Civil Liberties Union Foundation Inc. 230 Peachtree Street NW, Suite 1440 Atlanta, GA (404) /Fax: (404) nabudu@aclu.org lmcdonald@aclu.org Rebecca Robertson (Pro Hac Vice) American Civil Liberties Union Foundation of Texas 1500 McGowan Street

6 Case 1:12-cv RMC-DST-RLW Document 349 Filed 10/22/12 Page 6 of 7 Houston, Texas (713) rrobertson@aclutx.org Donita Judge (D.C. Bar No ) Katherine Culliton-Gonzalez (D.C. Bar No ) Penda Hair (D.C. Bar No ) Advancement Project 1220 L Street, NW, Suite 850 Washington, DC (202) djudge@advancementproject.org kcullitongonzalez@advancementproject.org 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 (D.C. Bar No. TX0040) Luis O. Figueroa (Pro Hac Vice) Mexican American Legal Defense & Educational Fund, Inc. 110 Broadway, Suite 300 San Antonio, TX (210) /Fax: nperales@maldef.org Counsel for Mi Familia Vota Education Fund, Southwest Voter Registration Education Project, Nicole Rodriguez, Victoria Rodriguez

7 Case 1:12-cv RMC-DST-RLW Document 349 Filed 10/22/12 Page 7 of 7 CERTIFICATE OF SERVICE I certify that on October 22, 2012, the foregoing Cross-Motion for Summary Judgment and was filed with the Clerk of the Court using the CM/ECF system which will electronically serve all counsel of record. /s/ Ezra D. Rosenberg Ezra D. Rosenberg

8 Case 1:12-cv RMC-DST-RLW Document Filed 10/22/12 Page 1 of 49 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STATE OF TEXAS, Plaintiff, v. ERIC H. HOLDER, JR., Case No. 1:12-cv DST-RMC-RLW ATTORNEY GENERAL OF THE UNITED STATES, et. al., Defendants. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT- INTERVENORS CROSS-MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO TEXAS S MOTION FOR SUMMARY JUDGMENT

9 Case 1:12-cv RMC-DST-RLW Document Filed 10/22/12 Page 2 of 49 TABLE OF CONTENTS Page I. INTRODUCTION... 1 II. III. IV. TEXAS HAS A PERSISTENT HISTORY OF DISCRIMINATION IN VOTING THAT CONTINUES TO THIS DAY... 2 CONGRESS 2006 REAUTHORIZATION OF SECTION 5 AND SECTION 4(B) IS CONSTITUTIONAL ON ITS FACE... 7 A. Shelby County v. Holder Requires Dismissal of Texas s Facial Challenge to the 2006 Reauthorization of Section 5 and Section 4(b) of the Voting Rights Act... 7 B. Shelby County Fully Resolved the Constitutionality of the 2006 Reauthorization The Supreme Court has upheld Section 5 on four occasions prior to the 2006 reauthorization Texas fails to identify any aspect of Shelby County that was wrongly decided CONGRESS ACTED WITHIN ITS AUTHORITY UNDER THE FOURTEENTH AND FIFTEENTH AMENDMENTS WHEN IT PROHIBITED PRECLEARANCE OF VOTING CHANGES THAT HAVE A DISCRIMINATORY EFFECT; FURTHER, THE RETROGRESSION STANDARD, ON ITS FACE AND AS APPLIED BY THIS COURT, IS FULLY CONSTITUTIONAL A. The Supreme Court Has Definitively Ruled That The Section 5 Effect Standard Does Not Exceed Congress Enforcement Powers City of Rome v. United States Lopez v. Monterey County Texas cannot overcome the controlling Supreme Court precedent establishing the constitutionality of the Section 5 effect standard The Section 5 effect standard, as applied to prohibit Texas from implementing its photo ID requirement, is constitutional B. The Retrogression Definition of the Section 5 Effect Standard is Constitutional The retrogression standard was established by the Supreme Court, and this Court is bound by it The retrogression standard complies with the Fourteenth Amendment s Equal Protection Clause The retrogression standard provides a clear standard for judging the effect of covered jurisdictions voting changes i -

10 Case 1:12-cv RMC-DST-RLW Document Filed 10/22/12 Page 3 of 49 TABLE OF CONTENTS Page C. The Retrogression Standard, As Applied by This Court to Deny Preclearance to Texas s Photo ID Requirement, is Constitutional V. CONCLUSION ii -

11 Case 1:12-cv RMC-DST-RLW Document Filed 10/22/12 Page 4 of 49 CASES TABLE OF AUTHORITIES Athason v. Grasso, 411 F. Supp (D. Conn. 1976)... 8 Beer v. United States, 425 U.S. 125 (1976)... passim Beer v. United States, 425 U.S , 28, 29 City of Boerne v. Flores, 521 U.S. 507 (1997)... passim City of Lockhart v. United States, 460 U.S. 125 (1983)... 30, 31 City of Port Arthur v. United States, 517 F. Supp. 987 (D.D.C. 1981) City of Rome v. United States, 446 U.S. 156 (1980)... passim County Council of Sumter County v. United States, 597 F. Supp. 35 (D.D.C. 1984) Donnell v. United States, 682 F.2d 240 (D.C. Cir. 1982) Florida v. United States, 2012 U.S. Dist. LEXIS (D.D.C. Aug. 16, 2012)... 8, 31 Georgia v. Ashcroft, 539 U.S. 461 (2003)... 27, 30, 31, 35 Georgia v. United States, 411 U.S. 526 (1973) Hopson v. Schilling, 418 F. Supp (D.C. Ind. 1976)... 8 Katzenbach v. Morgan, 384 U.S. 641 (1966) Lassiter v. Northampton County Board of Elections, 360 U.S. 45 (1959) iii -

12 Case 1:12-cv RMC-DST-RLW Document Filed 10/22/12 Page 5 of 49 Lewis v. Rockefeller, 431 F.2d 368 (2 nd Cir. 1970)... 8 Lopez v. Monterey County, 525 U.S. 266 (1999)... passim LULAC v. Perry, 548 U.S. 399 (2006)... 3, 4, 28 Morris v. Gressette, 432 U.S. 491 (1977) Nevada Dep t of Human Res. v. Hibbs, 538 U.S. 721 (2003)... 22, 35 New York v. United States, 874 F. Supp. 394 (D.D.C. 1994) Nw. Austin Mun. Util. Dist. No. 1 v. Holder, 557 U.S. 193 (2009)... 7, 10 Nw. Austin Mun. Util. Dist. No. 1 v. Mukasey, 573 F. Supp.2d 221 (D.D.C. 2008)... passim Oregon v. Mitchell, 400 U.S. 112 (1970)... 17, 23 Parker v. Ohio, 263 F. Supp. 2d 1100 (S.D. Ohio 2003)... 9 Presley v. Etowah County, 502 U.S. 491 (1992) Reno v. Bossier Parish, 528 U.S. 320 (2000)... 26, 27, 28 Reno v. Bossier Parish School Board, 520 U.S. 471 (1997)... 25, 30, 31 Russell v. Hathaway, 423 F. Supp. 833 (D.C. Tex. 1976)... 8 Shelby County v. Holder, 679 F.3d 848(D.C. Cir. 2012)... passim Shelby County v. Holder, 811 F. Supp. 2d 424 (D.D.C. 2011) iv -

13 Case 1:12-cv RMC-DST-RLW Document Filed 10/22/12 Page 6 of 49 South Carolina v. Katzenbach, 383 U.S. 301 (1966)... passim South Carolina v. United States, 2012 U.S. Dist. LEXIS (D.D.C. Oct. 10, 2012)... passim Sumter County v. United States, 555 F. Supp. 694 (D.D.C. 1983) Tennessee v. Lane, 541 U.S. 509 (2004)... 22, 35 Texas v. Holder, 2012 U.S. Dist. Lexis (D.D.C. Aug. 30, 2012)... passim Texas v. United States, 1997 U.S. Dist. LEXIS 3138 (1997)... 8 Texas v. United States, 2012 U.S. Dist. LEXIS (D.D.C. 2012)... 1, 2, 3, 31 Texas v. United States, 279 F.R.D. 24 (D.D.C. 2012)... 8 United States v. Ramsey, 353 F.2d 650 (5 th Cir. 1965)... 9 Virginia v. Reno, 117 F. Supp. 46 (2000)... 8 STATUTES 42 U.S.C. 1973c(b) & (d)... 20, U.S.C. 1973c(c) An Act to Admit the States of North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida to Representation in Congress, ch. 70, 15 Stat. 73, 1 (1868) Pub. L. No , 79 Stat. 437, 438, 4(a) (1965)... 9 Pub. L. No , 84 Stat. 314, 315, 3 (1970)... 9 Pub. L. No , 89 Stat , 201 (1975)... 9 Pub. L. No , 96 Stat. 131, 133, 2(b) (1982)... 9 Pub. L. No , 4, 120 Stat. 577, v -

14 Case 1:12-cv RMC-DST-RLW Document Filed 10/22/12 Page 7 of 49 2 of the Voting Rights Act, 42 U.S.C passim 3, 42 U.S.C. 1973a (b) of the Voting Rights Act, 42 U.S.C. 1973b(b) of the Voting Rights Act, 42 U.S.C. 1973c... passim Tex. Elec. Code OTHER AUTHORITIES 28 C.F.R (b) C.F.R. pt C.F.R (b) Fed. Reg (Feb. 9, 2011)... 30, 31 FIFTEENTH AMENDMENT... passim FOURTEENTH AMENDMENT J. GERALD HEBERT, THE FUTURE OF THE VOTING RIGHTS ACT 64 RUTGERS L.REV. 952 (2012) A Wright & Miller, Federal Practice and Procedure, 4235 (3 rd ed.) vi -

15 Case 1:12-cv RMC-DST-RLW Document Filed 10/22/12 Page 8 of 49 I. INTRODUCTION. Just two months ago, within the span of two days, two separate three-judge panels of the District of Columbia District Court rejected attempts by the State of Texas to abridge the right to vote of its minority citizens. On August 30, 2012, acting under its authority under Section 5 of the Voting Rights Act, 42 U.S.C. 1973c, this Court unanimously rejected Texas s discriminatory effort to implement a photo identification requirement that would be the most stringent in the country. Texas v. Holder, 2012 U.S. Dist. Lexis , *96. Two days earlier, on August 28, 2012, another three-judge panel had unanimously rejected, also under Section 5 of the Voting Rights Act, three statewide legislative redistricting plans enacted by Texas following the 2010 Census on the grounds that they were retrogressive and intentionally racially discriminatory. Texas v. United States, 2012 U.S. Dist. LEXIS For Texas, this is the fifth redistricting cycle since the enactment of the Voting Rights Act that the state s redistricting plans have been determined to violate Section 5. The irony is not lost that Texas now approaches this Court with a request that the Court declare unconstitutional, as no longer needed, the very statute that has steadfastly and repeatedly proved necessary up to this very minute to do what the State itself has failed to do: ensure that its political process is free of racial discrimination. Texas s constitutional challenge is wholly without merit for the following reasons. Settled precedent of the Supreme Court and the D.C. Circuit, the congressional record supporting the 2006 reauthorization of Section 5, and Texas s history of discrimination and the ongoing discrimination proved in this case demonstrate that Section 5, both on its face and as applied, is constitutional. In particular, Texas s facial challenge to the 2006 reauthorization of Section 5 is foreclosed by the D.C. Circuit s recent decision in Shelby County v. Holder, 679 F.3d 848

16 Case 1:12-cv RMC-DST-RLW Document Filed 10/22/12 Page 9 of 49 (2012), and its argument that the effect prong of Section 5 exceeds Congress authority under the Fifteenth Amendment has already been rejected by the Supreme Court in City of Rome v. United States, 446 U.S. 156, (1980), and Lopez v. Monterey County, 525 U.S. 266, 283 (1999). Furthermore, Texas s argument that retrogression is a constitutionally impermissible standard fails even to mention or account for the Supreme Court s decision in Beer v. United States, 425 U.S. 125, 141 (1976), the case in which the Court established retrogression as the standard for Section 5 s effect prong, over 35 years ago. And its final argument, that this Court unconstitutionally applied the retrogression test, amounts to nothing more than a plea for this Court to revisit its painstaking review of the factual record. Texas has been aware for decades that changes in its voting requirements are held to the retrogression standard, and was aware during the legislative process leading to the enactment of SB 14 that its photo ID requirement would impose burdens that would abridge the right to vote of its Latino and African- American citizens. Nevertheless, acting in a legislative process marked with anti-immigrant rhetoric, false rationalizations, and deviations from established legislative procedures, the State decided to plow ahead on a course of action which, if not enjoined by Section 5, would have harmed minority voters. For these reasons and those discussed more fully below, Defendant-Intervenors respectfully request that Texas s motion for summary judgment be denied, and that Defendant- Intervenors cross-motion for summary judgment be granted. II. TEXAS HAS A PERSISTENT HISTORY OF DISCRIMINATION IN VOTING THAT CONTINUES TO THIS DAY. As set forth below, this Court s resolution of the constitutional issues presented in this litigation is dictated by controlling precedent of the Supreme Court and the D.C. Circuit

17 Case 1:12-cv RMC-DST-RLW Document Filed 10/22/12 Page 10 of 49 However, before addressing that precedent, Intervenors believe it is useful to review how Texas s ongoing history of discrimination against Latino and African-American voters demonstrated most recently in this case and the Texas v. United States redistricting decision evidences the continuing need for of Section 5 s protections. In addition, since Texas spends a substantial portion of its summary judgment brief attacking this Court s preclearance decision, it is appropriate to briefly review the record in this case. Texas s history of voting discrimination, and the importance of Section 5 coverage, was summarized by the Supreme Court, just six years ago, in its decision finding that Texas violated Section 2 of the Voting Rights Act, 42 U.S.C. 1973, in adopting a congressional redistricting plan: Texas has a long, well-documented history of discrimination that has touched upon the rights of African-Americans and Hispanics to register, to vote, or to participate otherwise in the electoral process. Devices such as the poll tax, an all-white primary system, and the restrictive voter registration time periods are an unfortunate part of this State s minority voting rights history. The history of official discrimination in the Texas election process stretching back to Reconstruction led to the inclusion of the state as a covered jurisdiction under Section 5 in the 1975 amendments to the Voting Rights Act. Since Texas became a covered jurisdiction, the Department of Justice has frequently interposed objections against the State and its subdivisions. LULAC v. Perry, 548 U.S. 399, (2006) (internal quotation marks omitted). Texas s ongoing discriminatory conduct is well exemplified by its repeated enactment of discriminatory statewide redistricting plans. Not only were all the challenged post-2010 statewide legislative plans struck down in Texas v. United States and the 2003 congressional plan struck down in LULAC, but prior plans following the 2000, 1990, 1980, and 1970 Censuses were struck down by the courts and were the subject of Section 5 objections. See Texas v. United States, 2012 U.S. Dist. LEXIS at *77; tx_obj2.php (listing of all Section 5 objections in Texas, including statewide redistricting plans)

18 Case 1:12-cv RMC-DST-RLW Document Filed 10/22/12 Page 11 of 49 In Texas v. United States, this District Court unanimously concluded that Texas s 2011 plans for Congress and the state Senate were motivated by a discriminatory purpose, and that there were strong indicia that the 2011 plan for the state House also had a discriminatory purpose. Texas v. United States, 2012 U.S. Dist. LEXIS , at *79 (congressional plan), *92-93 (Senate plan), * (House plan). Likewise, the Supreme Court concluded that Texas s 2003 congressional plan was damaging to... Latinos, LULAC v. Perry, 548 U.S. at 440, violated Section 2 of the Voting Rights Act, and bore the mark of intentional discrimination that could give rise to an equal protection violation. Id. Since the 1982 reauthorization of Section 5, the Attorney General has interposed over 100 objections to voting changes enacted by Texas and its subjurisdictions. See about/vot/sec_5/tx_obj2.php. Indeed, despite having been covered only since 1975, Texas received more objections during the entire period than did any other covered state. Nw. Austin Mun. Util. Dist. No. 1 v. Mukasey, 573 F. Supp.2d 221, 281 (D.D.C. 2008). Furthermore, the legislative record reveals... a substantial gap in registration rates between whites and Hispanics,... [and] that since 1982 Texas led all covered jurisdictions in the number of [more-information-request]-induced outcomes, judicial preclearance suits resolved favorably to minorities, and successful section 5 enforcement suits. Id. And, when examining voting discrimination throughout the country, Texas (along with six other covered states or partially covered states) is among the eight states with the highest number of successful published and unpublished section 2 cases per million residents. Shelby County, 679 F.3d at 875. This case further demonstrates Texas s ongoing discriminatory conduct. As this Court found, Texas s photo ID would have a retrogressive effect on minority voters. Moreover, there - 4 -

19 Case 1:12-cv RMC-DST-RLW Document Filed 10/22/12 Page 12 of 49 are substantial indicia in the record that SB 14 was enacted with a discriminatory purpose, although this Court found it unnecessary to reach this question. SB 14 was enacted in the context of heated racial and anti-immigrant rhetoric tied to voter identification legislation. Following the release of 2010 Census data, Texas newspapers and television outlets reported widely that the Latino population in Texas was growing rapidly and would lead to increased political strength for the Latino community. DIX 3 at 7-8. Debates in the various legislative sessions which considered photo ID legislation often included claims that photo ID was needed to stop voter fraud by non-u.s. citizens, DIX 3 at 11, although the proposed ID provisions did not generally relate to citizenship status. During the year of and before the passage of SB 14, Texas elected officials received a substantial number of letters and s from constituents characterizing photo ID legislation as legislation regarding illegal immigration, often urging the enactment of ID legislation to stop illegal immigrants from voting and using inflammatory references to criminal aliens, wetbacks, and similar derogatory phrases and racial epithets. See generally DIX Leading state officials also explicitly linked photo ID with voting by noncitizens. 1 Throughout the Texas s Legislature s consideration of photo ID bills, the Legislature was alerted to the potential discriminatory effect of a strict photo ID law. For example, in the 2009 legislative session, the Chairman of the House Elections Committee, Rep. Todd Smith, was aware that minority voters are less likely to have photo voter ID, and understood that allowing the use of a non-photo ID alternative would significantly lessen any marginal additional 1 For example, on February 8, 2011, Lt. Gov. Dewhurst wrote to a constituent regarding photo ID, stating, Voter ID will help stamp out voter fraud and increase public confidence in our election process by ensuring that only U.S citizens who are legally eligible vote in Texas elections. DIX 3 at 16. Upon Senate passage of SB 14, the Lt. Governor issued a press release stating that SB 14 will increase voter confidence by ensuring only U.S. citizens who are legally eligible vote in Texas elections. DE

20 Case 1:12-cv RMC-DST-RLW Document Filed 10/22/12 Page 13 of 49 burden that ID requirements placed on some voters. Smith Dep. 154:1-156:20, 196:19-198:2, 202:1-5. See also JA ; JA ; JA ; JA ; JA Nevertheless, the Texas Legislature considered increasingly restrictive photo identification bills over a series of sessions (JA 3106, ; JA ; JA ; JA ), ending in the enactment of an identification law that is the most stringent in the country. Texas v. Holder, 2012 U.S. Dist. Lexis at *96. To do so, the Texas Legislature departed significantly from its normal procedure, including suspending, for the photo voter identification bill, the Senate s time-honored tradition of the two-thirds rule. DE 368; K. Davis Dep. 49:1-51:6, 120:6-10. And legislators rejected dozens of amendments that would have reduced the burden of SB 14 on minorities. Texas v. Holder, 2012 U.S. Dist. Lexis at *96. Compared to the current voter identification law in Texas, SB 14 would permit fewer forms of ID for in-person voting. Specifically, SB 14 sought to eliminate the voter registration certificate as an acceptable form of ID as well as other non-photo documents that are currently acceptable such as utility bills, birth certificates, and government correspondence. SB 14 also would have eliminated certain photo ID that is acceptable under the current Texas voter ID law such as student and employment identification. Tex. Elec. Code ; JA 3106, ; JA ; JA ; JA Furthermore, SB 14 excluded otherwise acceptable photo ID if the ID expired more than 60 days prior to presentation. JA Texas has never disputed, and this Court found, that there exists a subgroup of registered voters, including minorities, who lack SB 14-approved photo ID. Texas v. Holder, 2012 U.S. Dist. Lexis at *79. This Court found, as a matter of undisputed record evidence, that racial minorities in Texas are disproportionally likely to live in poverty and, because SB 14 will - 6 -

21 Case 1:12-cv RMC-DST-RLW Document Filed 10/22/12 Page 14 of 49 weigh more heavily on the poor, the law will likely have retrogressive effect. Id. at *79. Furthermore, this Court found that the burdens associated with obtaining a purportedly free voter ID card will be heavier under SB 14 than under either Indiana or Georgia law because out of pocket costs are higher in Texas to obtain the underlying required documentation for an Election Identification Certificate, and because in Texas there are greater burdens imposed on those who must travel to a Department of Public Safety office to apply for an EIC. Id. at *47. Texas was aware of the provisions of other states voter identification laws and was also aware that SB 14 is far stricter than either Indiana's or Georgia's voter ID laws. Id. And, as this Court also found, [i]gnoring warnings that SB 14, as written, would disenfranchise minorities and the poor, id. at *96-97, crucially, the Texas legislature defeated several amendments that could have made this a far closer case. Id. at *96. In sum, this Court's finding of a retrogressive effect is well founded on the evidence, and, in addition, there was substantial evidence that SB 14 was enacted with a discriminatory purpose. III. CONGRESS 2006 REAUTHORIZATION OF SECTION 5 AND SECTION 4(b) IS CONSTITUTIONAL ON ITS FACE. The court of appeals decision in Shelby County settled the facial validity of the 2006 reauthorization of Section 5 and Section 4(b) of the Voting Rights Act, 42 U.S.C. 1973b(b), within the District of Columbia Circuit. Well-established jurisprudence requires that this threejudge district court treat Shelby County as controlling precedent on that issue. Texas fails to identify any facts or legal developments that require a different conclusion. A. Shelby County v. Holder Requires Dismissal of Texas s Facial Challenge to the 2006 Reauthorization of Section 5 and Section 4(b) of the Voting Rights Act. In Shelby County, the D.C. Circuit conducted a careful review of the legislative record Congress developed in 2005 and 2006 in support of its reauthorization of Sections 5 and 4(b), in - 7 -

22 Case 1:12-cv RMC-DST-RLW Document Filed 10/22/12 Page 15 of 49 resolving Shelby County, Alabama s facial challenge to the 2006 reauthorization. The D.C. Circuit held that Congress acted within its Fourteenth and Fifteenth Amendment enforcement authority when it extended the sunset date for the preclearance remedy for an additional twentyfive years. The D.C. Circuit focused directly upon answering the two principal inquiries set forth by the Supreme Court in Nw. Austin Mun. Util. Dist. No. 1 v. Holder, 557 U.S. 193 (2009) ( Nw. Austin ): whether the current burdens imposed by Section 5 are justified by current needs ; and whether Section 5 s disparate geographic coverage is sufficiently related to the problem that it targets. Shelby County, 679 F.3d at (quoting Nw. Austin, 557 U.S. at 203). For its part, Texas concedes that the Shelby County opinion is comprehensive, and that this Court must reject [Texas s] arguments that the 2006 reauthorization is unconstitutional should the Court conclude that it is bound by Shelby County. Texas s Memorandum of Points and Authorities in Support of Plaintiff s Motion for Summary Judgment ( Brief ) at Recently, another three-judge panel of this District Court, presented with a facial challenge to the constitutionality of the 2006 reauthorization, held that it was bound by the D.C. Circuit s Shelby County ruling. Florida v. United States, no , Order at 3 (June 5, 2012) (Doc. 106). Other Section 5 three-judge panels of this District Court also have regularly adhered to D.C. Circuit precedent. Texas v. United States, 279 F.R.D. 24, (2012) (Circuit precedent regarding attorney-client privilege, the work-product doctrine, and state legislative privilege) (single-judge ruling on behalf of the panel); Virginia v. Reno, 117 F. Supp. 46, 51-52, 54 (2000) (Circuit precedent regarding the ripeness doctrine); Texas v. United States, 1997 U.S. Dist. LEXIS 3138, at *3, 8-11, (1997) (same), aff d, 523 U.S. 296 (1998). Other courts also have held that circuit precedent binds three-judge district courts. Lewis v. Rockefeller, As did the plaintiff in Shelby County, Texas asserts only a facial challenge to the constitutionality of the 2006 reauthorization. Brief at

23 Case 1:12-cv RMC-DST-RLW Document Filed 10/22/12 Page 16 of 49 F.2d 368, 371 (2 nd Cir. 1970); Russell v. Hathaway, 423 F. Supp. 833, 835 (D.C. Tex. 1976); Hopson v. Schilling, 418 F. Supp. 1223, 1235 (D.C. Ind. 1976); Athason v. Grasso, 411 F. Supp. 1153, 1157 (D. Conn. 1976). Thus, because this Court is bound by the holdings of the D.C. Circuit, Shelby County controls the disposition of Texas s facial claim. 3 B. Shelby County Fully Resolved the Constitutionality of the 2006 Reauthorization. The court of appeals ruling in Shelby County is correct, as it is fully grounded in the law and the legislative record. 1. The Supreme Court has upheld Section 5 on four occasions prior to the 2006 reauthorization. Shelby County was decided against the backdrop of the Supreme Court s repeated determinations that the Section 5 preclearance remedy is constitutional. The Supreme Court first upheld Congress authority to enact Section 5 in a ruling handed down just seven months after the Voting Rights Act was adopted. Thereafter, the Court has upheld the preclearance remedy in decisions following each of the subsequent reauthorizations preceding the 2006 extension. 4 3 Texas cites no controlling authority to the contrary. Texas portrays United States v. Ramsey, 353 F.2d 650 (5 th Cir. 1965), as concluding that a three-judge district court is not bound by circuit precedent (Brief at 39), but the issue in Ramsey was whether a circuit court is bound by a determination of a three-judge district court located within that circuit, i.e., the reverse of the situation presented here. Texas s reliance on Parker v. Ohio, 263 F. Supp. 2d 1100 (S.D. Ohio 2003) (three-judge court), is similarly misplaced. Texas cites to a concurring opinion of one of the three judges (who merely noted that some question exists as to whether a three-judge court is bound by circuit precedent (id. at 1112 n.3)) and ignores the majority s explicit holding that we are bound by precedent in this circuit. Id. at Parker therefore supports the proposition that this Court is bound by the D.C. Circuit s ruling in Shelby County. Texas also cites to 17A Wright & Miller, Federal Practice and Procedure, 4235 (3 rd ed.), to the effect that there is some authority that supports its position. Brief at 38. However, the only authority identified by Wright & Miller in this regard is one district court decision from That single decision plainly does not outweigh the substantial authority holding that circuit precedent does bind three-judge district courts. 4 Section 5 originally was to sunset after five years. Pub. L. No , 79 Stat. 437, 438, 4(a) (1965). Congress reauthorized the provision for another five years in 1970, Pub. L. No

24 Case 1:12-cv RMC-DST-RLW Document Filed 10/22/12 Page 17 of 49 In 1966, in South Carolina v. Katzenbach, 383 U.S. 301 (1966), the Supreme Court fully endorsed Congress decision to shift the advantage of time and inertia from the perpetrators of the evil to its victims (id. at 328), in those areas [of the country] where voting discrimination has been most flagrant (id. at 315), by requiring that all voting changes in these areas be subject to federal review prior to implementation. Id. at (upholding the geographic coverage provisions), (upholding the preclearance mechanism). Katzenbach has remained a touchstone of the Supreme Court s jurisprudence construing the enforcement clauses of the Reconstruction Amendments. See e.g., City of Boerne v. Flores, 521 U.S. 507, , 525, 530, (1997). Following Congress 1970 reauthorization of Section 5, the Supreme Court reaffirmed Katzenbach in Georgia v. United States, 411 U.S. 526, 535 (1973). Then, following the 1975 reauthorization, the Court, in City of Rome, upheld Congress authority to extend the life of the Section 5 remedy for an additional period of years (based on Congress determination of a continuing need for the remedy), 446 U.S. at , and also upheld Congress original decision, in 1965, to include in Section 5 a prohibition on voting changes that have a discriminatory effect. Id. at Finally, following the 1982 reauthorization, the Court again upheld Section 5, this time in response to an as-applied challenge by a State partially covered for Section 5 reviews. Lopez v. Monterey County, 525 U.S. at Texas fails to identify any aspect of Shelby County that was wrongly decided. In Nw. Austin, the Supreme Court did not question its prior rulings upholding the constitutionality of Section 5. The Supreme Court did recognize that the constitutionality of the , 84 Stat. 314, 315, 3 (1970), for an additional seven years in 1975, Pub. L. No , 89 Stat , 201 (1975), for 25 years in 1982, Pub. L. No , 96 Stat. 131, 133, 2(b) (1982), and again for 25 years in Pub. L. No , 4, 120 Stat. 577,

25 Case 1:12-cv RMC-DST-RLW Document Filed 10/22/12 Page 18 of reauthorization would depend upon whether the current burdens imposed by Section 5 are justified by current needs ; and whether Section 5 s disparate geographic coverage is sufficiently related to the problem that it targets. Nw. Austin, 557 U.S. at 203. The court of appeals fully addressed the Nw. Austin inquiries in deciding Shelby County, and concluded that the 2006 reauthorization is constitutional. Texas has given this Court no reason to reach a different conclusion. 5 With respect to Nw. Austin s current needs inquiry, the court of appeals found that the legislative record contains numerous examples of modern instances of racial discrimination in voting. Shelby County, 679 F.3d at 865 (internal quotation marks omitted). The court further determined that, [i]n addition to these examples of flagrant racial discrimination, several categories of evidence in the record support Congress s conclusion that intentional racial discrimination in voting remains so serious and widespread in covered jurisdictions that section 5 preclearance is still needed. Id. at Nowhere in its papers does Texas confront these findings. 7 5 The D.C. Circuit, in Shelby County, observed that the Nw. Austin current needs and disparate geographic coverage inquiries were analogous to the City of Boerne v. Flores congruence and proportionality inquiry. The court of appeals therefore applied the Boerne standard, which is arguably more rigorous than what is generally described as the rationality standard employed in South Carolina v. Katzenbach, and concluded that Section 5 would survive regardless of whether the Boerne or Katzenbach standard controls. Shelby County, 679 F.3d at 859. Intervenors agree with this. 6 The record before Congress included: (1) 626 DOJ objections from 1982 to 2004 to voting changes that had the purpose or effect of discriminating against minority voters; (2) more information requests sent by the Justice Department regarding Section 5 submissions which resulted in the withdrawal or modification of over 800 potentially discriminatory voting changes; (3) 653 successful lawsuits brought under Section 2 of the Voting Rights Act, between 1982 and 2005 providing relief from discriminatory practices in at least 825 covered counties; (4) tens of thousands of federal observers dispatched to monitor elections in covered jurisdictions; (5) 105 successful Section 5 enforcement actions brought against covered jurisdictions between 1982 and 2004; (6) 25 preclearance denials by the District Court for the District of Columbia between

26 Case 1:12-cv RMC-DST-RLW Document Filed 10/22/12 Page 19 of 49 Texas claims, without supporting authority, that a mere showing of a pattern of constitutional violations is insufficient to justify the preclearance remedy; Texas asserts, instead, that the legislative record must contain evidence of constitutional violations that cannot be remedied though traditional litigation, namely litigation brought under the Constitution and Section 2 of the Voting Rights Act. Brief at 41. This argument also was considered and correctly rejected in Shelby County. The court of appeals found that, for several reasons, Congress properly concluded that Section 2 litigation remains inadequate: Section 2 claims are intensely complex... costly and time-consuming, 679 F.3d at 872 (internal quotation marks omitted); minority voters often would find it incredibly difficult... to pull together the resources needed to pursue a section 2 lawsuit, id. (internal quotation marks omitted); and, unlike Section 5, which shift[s] the advantage of time and inertia from the perpetrators of the evil to its victims (Katzenbach, 383 U.S. at 328), Section 2 litigation may allow the proponents of a discriminatory law to enjoy its benefits... before the [challenged] law is overturned, Shelby County, 679 F.3d at 872. As to cost and resources, the court of appeals found no evidence to support the speculation that, in the absence of Section 5, the Justice Department would assume the costs of Section 2 litigation. Id. at 873. And with regard to adjudicative delay, the court concluded that, given the many obstacles minority litigants face in bringing Section 2 cases, Congress reasonably concluded that Section 2 litigants ability, on 1982 and 2004; (7) evidence that Section 5 has a strong deterrent effect; and (9) evidence that Section 2 is not an adequate remedy for racial discrimination in voting in the covered jurisdictions. Shelby County, 679 F.3d at Texas asserts that Section 5 objections interposed by the Attorney General based solely upon a finding of retrogression may not be considered in evaluating the current needs for Section 5 because a finding of retrogression does not establish a constitutional violation. Brief at 41. However, as discussed infra, this assertion ignores the Supreme Court s holding in Rome that, in the context of Section 5, a finding of discriminatory effect is closely linked to discriminatory purpose. 446 U.S. at

27 Case 1:12-cv RMC-DST-RLW Document Filed 10/22/12 Page 20 of 49 paper, to request a preliminary injunction was insufficient to alleviate [Congress ] concerns about the inadequacy of section 2 actions. Id. Furthermore, the problems posed by Section 2 litigation are accentuated by the magnitude and persistence of discrimination in covered jurisdictions. Id. at 872. With respect to the Nw. Austin inquiry regarding Section 5 s geographic coverage, the court of appeals found that voting discrimination remains concentrated in the Section 5 covered jurisdictions. The court cited in particular to studies of vote dilution litigation brought under Section 2 of the Voting Rights Act, which showed that significantly more successful Section 2 cases have been brought in covered jurisdictions than in noncovered jurisdictions. This was particularly notable since, as the court of appeals observed, Section 5 deters or blocks many discriminatory voting laws before they can ever take effect and become the target of section 2 litigation, and thus, if discrimination was evenly distributed throughout the nation, we would expect to see fewer successful section 2 cases in covered jurisdictions than in noncovered jurisdictions.... Yet we see substantially more. Id. at 878. Nowhere in its brief does Texas challenge any of these findings. The court of appeals also emphasized that, in examining Section 5 s geographic coverage, the entire coverage scheme must be considered, which includes not only the coverage formula set forth in Section 4(b) of the Act, but also the bailout provisions of Section 4(a) and the bail-in provisions of Section 3, 42 U.S.C. 1973a. Id. at 881. Bailout, in particular, plays an important role in ensuring that section 5 covers only those jurisdictions with the worst records of racial discrimination in voting, id., by providing those jurisdictions with a clean record on voting rights the means for terminating coverage. Id. at 882. Thus, bailout helps ensure Congress means are proportionate to [its] ends. Id. at 881 (quoting Boerne, 521 U.S

28 Case 1:12-cv RMC-DST-RLW Document Filed 10/22/12 Page 21 of 49 at 533). 8 Bail-in under Section 3(c) allows jurisdictions not captured by section 4 s coverage formula, but which nonetheless discriminate in voting, to be subjected to... preclearance, id., and thus addresses any underinclusiveness of the coverage formula. Texas argues that the legislative record did not support Congress decision to retain what Texas characterizes as an outdated coverage formula. Brief at 44. The court of appeals correctly rejected this argument when it was made in Shelby County: The question... is not whether the formula relies on old data or techniques, but instead whether it, together with bail-in and bailout, continues to identify the jurisdictions with the worst problems. If it does, then even though the formula rests on decades-old factors, the statute is rational in theory because its disparate geographic coverage remains sufficiently related to the problem that it targets. Shelby County, 679 F.3d at 879 (quoting Nw. Austin, 557 U.S. at 203). Contrary to Texas s claim, Congress legislative action in 2006 did not reflect any assumption that the coverage formula, keyed to the 1964, 1968, and 1972 elections, denotes current electoral conditions. Instead, Congress merely began its consideration of reauthorization with the triggers in the original coverage determinations because they serve[] as accurate proxies for [a history] of pernicious racial discrimination in voting by the identified jurisdictions, 679 F.3d at 879; Congress then took action, amending Section 4(a)(8) of the Act to extend, for an additional period of years, the sunset date for Section 5, based on Congress findings that there is an ongoing pattern of voting discrimination in the covered areas and that voting discrimination remains concentrated in the covered areas. 9 8 See generally, J. Gerald Hebert, The Future of the Voting Rights Act 64 Rutgers L.Rev. 952, at (2012) (discussing history and effect of bail-out provision), available at 9 Technically, the amendment to Section 4(a)(8) extended the sunset date for Section 4(a) of the Act. As specified in Section 5, Section 4(a) provides the statutory basis for applying the Section

29 Case 1:12-cv RMC-DST-RLW Document Filed 10/22/12 Page 22 of 49 Finally, the importance of Section 5 to deterring and preventing voting discrimination was most recently underscored, less than two weeks ago, by Judge Bates, in an opinion joined by Judge Kollar-Kotelly, concurring in this District Court s preclearance ruling regarding South Carolina s photo ID requirement. As Judge Bates described: [O]ne cannot doubt the vital function that Section 5 of the Voting Rights Act has played here. Without the review process under the Voting Rights Act, South Carolina s voter photo ID law certainly would have been more restrictive.... Congress has recognized the importance of [Section 5 s] deterrent effect.... The Section 5 process here did not force South Carolina to jump through unnecessary hoops. Rather, the history of [the photo ID law] demonstrates the continuing vitality of Section 5 of the Voting Rights Act in deterring problematic, and hence encouraging non-discriminatory, changes in state and local voting laws. South Carolina v. United States, 2012 U.S. Dist. LEXIS , at *70-72 (D.D.C. Oct. 10, 2012). IV. CONGRESS ACTED WITHIN ITS AUTHORITY UNDER THE FOURTEENTH AND FIFTEENTH AMENDMENTS WHEN IT PROHIBITED PRECLEARANCE OF VOTING CHANGES THAT HAVE A DISCRIMINATORY EFFECT; FURTHER, THE RETROGRESSION STANDARD, ON ITS FACE AND AS APPLIED BY THIS COURT, IS FULLY CONSTITUTIONAL. A. The Supreme Court Has Definitively Ruled That The Section 5 Effect Standard Does Not Exceed Congress Enforcement Powers. The Supreme Court expressly ruled in City of Rome, and reaffirmed in Lopez, that Congress acted within its authority under the Reconstruction Amendments when, as part of the enactment of Section 5 in 1965, it prohibited the implementation of voting changes by covered jurisdictions that would have a discriminatory effect. Texas argues that Section 5 only may prohibit purposeful discrimination barred by Section 1 of the Fifteenth Amendment and that Section 2 of the Amendment, which grants Congress the authority to enforce Section 1 by 4(b) coverage formula to Section 5, and thus the amendment extended the sunset date for the coverage formula for the Section 5 preclearance requirement

30 Case 1:12-cv RMC-DST-RLW Document Filed 10/22/12 Page 23 of 49 appropriate legislation, does not permit the enactment of an effect standard. Brief at 1, 3, These arguments are entirely foreclosed by City of Rome and Lopez. 1. City of Rome v. United States. In City of Rome, the City of Rome, Georgia sought preclearance for several voting changes, and also challenged the constitutionality of Section 5 on several bases. Its constitutional claims included the assertion that 1 of the [Fifteenth] Amendment prohibits only purposeful racial discrimination in voting, and that in enforcing that provision pursuant to 2, Congress may not prohibit voting practices lacking discriminatory intent even if they are discriminatory in effect. City of Rome, 446 U.S. at 173. The Court squarely upheld the Section 5 effect prohibition against this challenge: We hold that, even if 1 of the Amendment prohibits only purposeful discrimination, the prior decisions of this Court foreclose any argument that Congress may not, pursuant to 2, outlaw voting practices that are discriminatory in effect. Id. (footnote omitted). The Supreme Court provided a detailed exegesis of why its determination was compelled by the prior decisions of this Court. At bottom, the city was asking the Court to do nothing less than overrule our decision in South Carolina v. Katzenbach. The Court reviewed Katzenbach s explication of the broad authority granted Congress by the Fifteenth Amendment, and then discussed why the Court's holding in Katzenbach, upholding the Voting Rights Act's then temporary ban on literacy tests in covered jurisdictions, demonstrated that the Fifteenth Amendment grants Congress the authority to prohibit voting practices that have only a discriminatory effect. Id. at 175. In that regard, the Court noted that seven years before its decision in Katzenbach, in Lassiter v. Northampton County Board of Elections, 360 U.S. 45 (1959), the Court had rejected a claim that, under the Fifteenth Amendment, states were prohibited from employing a literacy test that was fair on its face and was not employed in a