Case 2:15-cv LSC Document 234 Filed 09/29/17 Page 1 of 39 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

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1 Case 2:15-cv LSC Document 234 Filed 09/29/17 Page 1 of 39 FILED 2017 Sep-29 PM 05:01 U.S. DISTRICT COURT N.D. OF ALABAMA UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION GREATER BIRMINGHAM MINISTRIES, et al., Plaintiffs, v. Civil Case No.: 2:15-cv LSC JOHN MERRILL, in his official capacity as the Alabama Secretary of State, Defendant. PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT

2 Case 2:15-cv LSC Document 234 Filed 09/29/17 Page 2 of 39 TABLE OF CONTENTS Page INTRODUCTION... 1 STATEMENT OF UNDISPUTED FACTS... 2 A. The Undisputed Material Facts Pertinent to HB 19 ID Possession Rate... 2 B. The Undisputed Material Facts Pertinent to the Positively Identify Provision... 5 LEGAL STANDARD ARGUMENT I. THERE IS NO GENUINE DISPUTE OF MATERIAL FACT THAT THERE ARE STATISTICALLY SIGNIFICANT RACIAL DISPARITIES IN HB 19 POSSESSION RATES A. There is No Genuine Dispute that Black and Hispanic Registered Voters are Less Likely to Possess HB 19 ID B. Substantive Significance Is Immaterial to a Finding of Disparate HB 19 ID Possession Rates I. PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT ON THEIR CLAIM THAT THE POSITIVELY IDENTIFY PROVISION IS A REQUIREMENT OR PREREQUISITE TO VOTING IN VIOLATION OF SECTION 201 OF THE VOTING RIGHTS ACT A. It is Undisputed that Tens of Thousands of Disproportionately Black and Hispanic Alabama Voters Must Use the Positively Identify Provision to Vote B. The Positively Identify Provision is Covered by Section 201 of the Voting Rights Act The definition of prerequisites for voting in 201 of the VRA covers every aspect of the voting process i

3 Case 2:15-cv LSC Document 234 Filed 09/29/17 Page 3 of Congress passed the VRA with the intent to prohibit tests from serving even as alternate methods of voting A prohibited test or device violates 201 if it subjects any otherwise eligible citizen to a prohibited test or device The Provision violates the VRA even if the voucher test can be avoided by other methods Tests or devices that allow more citizens of color to vote still violate 201 of the Voting Rights Act C. The Appropriate Remedy: Reinstate Secretary Chapman s Original Interpretation of the Positively Identify Provision CONCLUSION ii

4 Case 2:15-cv LSC Document 234 Filed 09/29/17 Page 4 of 39 TABLE OF AUTHORITIES Cases Page(s) Allen v. City of Evergreen, No. 1:13-cv (S.D. Ala. Feb. 3, 2017) Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) Boca Raton Cmty. Hosp., Inc. v. Tenet Health Care Corp., 582 F.3d 1227 (11th Cir. 2009) Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc) Chisom v. Roemer, 501 U.S. 380 (1991)... 17, 22 Cipriano v. City of Houma, 395 U.S. 701 (1969) Common Cause/Georgia v. Billups, 406 F. Supp. 2d 1326 (N.D. Ga. 2005) Dana s R.R. Supply v. Attorney Gen., 807 F.3d 1235 (11th Cir. 2015) Frank v. Walker, 819 F.3d 384 (7th Cir. 2016) Guinn v. United States, 238 U.S. 347 (1915) Harman v. Forssenius, 380 U.S. 528 (1965) Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256 (11th Cir. 2004) Jones v. City of Boston, 752 F.3d 38 (1st Cir. 2014) iii

5 Case 2:15-cv LSC Document 234 Filed 09/29/17 Page 5 of 39 Katzenbach v. Morgan, 384 U.S. 641 (1966)... 23, 28 Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621 (1969) League of Women Voters of N. Carolina v. North Carolina, 769 F.3d 224 (4th Cir. 2014) Louisiana v. United States, 380 U.S. 145 (1965) Milwaukee Branch of NAACP v. Walker, 851 N.W.2d 262 (Wis. 2014) Miss. State Chapter, Operation Push, Inc. v. Mabus, 932 F.2d 400 (5th Cir. 1991) Myers v. Anderson, 238 U.S. 368 (1915) N. Carolina State Conf. of NAACP v. McCrory, 182 F. Supp. 3d 320, 372 (M.D.N.C. 2016)... 16, 17 N. Carolina State Conf. of NAACP v. McCrory, 831 F.3d 204 (4th Cir. 2016)... 14, 30 N.W. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009) OCA-Greater Houston v. Texas, 867 F.3d 604 (5th Cir. 2017) Scott v. United States, 825 F.3d 1275 (11th Cir. 2016) Shelby Cty. v. Holder, 133 S. Ct (2013) South Carolina v. Katzenbach, 383 U.S. 301 (1966)... 23, 27 South Carolina v. United States, 898 F. Supp. 2d 30 (D.D.C. 2012) iv

6 Case 2:15-cv LSC Document 234 Filed 09/29/17 Page 6 of 39 Thornburg v. Gingles, 478 U.S. 30 (1986) United States v. Alabama, 252 F. Supp. 95 (M.D. Ala. 1966) United States v. Ass n of Citizen Councils, 196 F. Supp. 908 (W.D. La. 1961)... 24, 26, 29 United States v. Atkins, 323 F.2d 733 (5th Cir. 1963) United States v. Bd. of Comm rs of Sheffield, 435 U.S. 110 (1978)... 21, 22, 23, 25 United States v. Clement, 231 F. Supp. 913 (W.D. La. 1964)... 24, 26 United States v. Clement, 358 F.2d 89 (5th Cir. 1966)... 26, 27 United States v. Logue, 344 F.2d 290 (5th Cir. 1965)... 20, 21, 24 United States v. Louisiana, 224 F. Supp. 353 (E.D. La. 1963) United States v. Lucky, 239 F. Supp. 233 (W.D. La. 1965) United States v. Manning, 205 F. Supp. 172 (W.D. La. 1962) United States v. Ward, 222 F. Supp. 617 (W.D. La. 1963)... 24, 26, 27 United States v. Ward, 349 F.2d 795 (5th Cir. 1965) Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016) (en banc)... 13, 14, 15, 30 Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977) v

7 Case 2:15-cv LSC Document 234 Filed 09/29/17 Page 7 of 39 Williams v. City of Dothan, 818 F.2d 755 (11th Cir. 1987) Statutes 52 U.S.C , U.S.C , U.S.C , 21, U.S.C Ala. Code , 5, 20 La. Rev. Stat. 18: La. Rev. Stat. 18: vi

8 Case 2:15-cv LSC Document 234 Filed 09/29/17 Page 8 of 39 INTRODUCTION Pursuant to Federal Rule of Civil Procedure 56, Plaintiffs hereby move for partial summary judgment on their claims challenging the enforcement of Alabama s Photo ID Law (the Photo ID Law or HB 19 ), which has denied or abridged the rights of Plaintiffs and thousands of other disproportionately Black and Hispanic voters in violation of the Voting Rights Act of 1965 ( VRA ), and the Fourteenth and Fifteenth Amendments to the United States Constitution. First, the undisputed material facts show that there is a statistically significant racial disparity between voters of color and white voters in Alabama in rates of possession of valid photo ID under HB 19 ( HB 19 ID ). Accordingly, this Court should grant partial summary judgment on this issue, which is a discrete element of Plaintiffs claims challenging HB 19 under 2 of the VRA and the U.S. Constitution. Second, the Secretary of State s ( the Secretary ) interpretation of the Positively Identify Provision (the Provision or PIP ) of HB 19 is, on its face and as applied, a per se unlawful test or device under 201 of the VRA. There is no material factual dispute that, because of the Secretary s interpretation of the Provision, tens of thousands of disproportionately Black and Hispanic Alabama voters who lack HB 19 ID are required to either pass a prohibited voucher test or be denied the right to cast regular ballots. Further, it is clear from the text of the VRA, binding legal precedent, and Congressional intent that the Provision is covered by 201. Thus, this Court should grant Plaintiffs summary judgment on this entire claim. 1

9 Case 2:15-cv LSC Document 234 Filed 09/29/17 Page 9 of 39 STATEMENT OF UNDISPUTED FACTS A. The Undisputed Material Facts Pertinent to HB 19 ID Possession Rate 1. The Photo ID Law was passed in 2011 and requires in-person and absentee voters to produce one of seven forms of HB 19 ID to cast a regular ballot Plaintiffs expert, Dr. Bernard Siskin, analyzed whether there is a racial disparity between white voters and voters of color in HB 19 ID possession rates. To conduct his analyses, Dr. Siskin first calculated the rates at which registered Alabama voters lack HB 19 ID based on a comparison of voter data available in the Secretary s voter registration database to the Alabama s driver s license and nondriver ID database as of July 6, He also relied on matches between the voter registration database and certain federal ID databases identified by the Department of State, Department of Defense, and Veterans Administration after these federal agencies were provided with the relevant portions of the voter database. 3 Dr. Siskin further refined his analysis in light of a survey conducted by Dr. David Marker. Dr. Marker s surveyed those voters who could not be matched in the ID databases to ask whether they possessed any form of HB 19 ID, as well as other questions In his first analysis, Dr. Siskin considered a voter to possess HB 19 ID even 1 Ala. Code Report by Bernard Siskin, Ph.D., March 21, 2017 ( Siskin 3/21 Report ) at 1-2 (Pltfs Ex. A). 3 Id. 4 Id. 2

10 Case 2:15-cv LSC Document 234 Filed 09/29/17 Page 10 of 39 if some of the voter s personal information (e.g., name, age, etc.) in the voter registration database did not perfectly match that voter s information in an ID database. Under this analysis, he determined that 1.37% of white, 2.44% of Black, and 2.29% of Hispanic registered voters lack any form of HB 19 ID. 5 Black voters are therefore 1.78 times more likely and Hispanic voters are 1.67 times more likely than white voters to lack HB 19 ID. 6 These differences are statistically significant at the 95% confidence interval In Dr. Siskin s second analysis, he did not count a voter as possessing HB 19 ID if the identifying information in the voter registration database and the ID database differed in material respects. 8 Dr. Siskin determined that an HB 19 ID would be contestable, i.e., potentially susceptible to rejection by election officials under the common sense standard used by the Secretary. 9 For example, Dr. Siskin identified numerous HB 19 IDs where both the first and last name on the 5 Id. at Table 1. 6 Id. at Id. at 22, Id. at Id. at 5-8, Table 1. Under his common sense standard, the Secretary states that the name of the voter does not have to precisely match the voter s record in the poll book but should be a reasonable match to the name on the voter s record and the Secretary advises voters who have changed their names to bring evidence of the name change (e.g., marriage certificate). Def. s Fourth Am. & Suppl. Answers to Pls. Second Set of Interrogs., at (Pltfs Ex. B). The Secretary claims in a separate motion that Dr. Siskin is not qualified to express an opinion about what photo IDs a poll worker will accept. ECF No. 215 at 2. But, Dr. Siskin does not say which contestable HB 19 IDs a poll official will or will not accept because the Secretary has left that decision largely to poll officials discretion. Nonetheless, because of the lack of guidance, poll officials may refuse HB 19 IDs where the name meaningfully differs from that on the voter rolls. 3

11 Case 2:15-cv LSC Document 234 Filed 09/29/17 Page 11 of 39 ID did not match the name in the voter registration database. Under this approach, Dr. Siskin determined that 3.33% of white, 5.49% of Black, and 6.98% of Hispanic registered voters lack adequate HB 19 ID. 10 This means that Black voters are 1.65 times more likely and Hispanic voters are 2.10 times more likely than white voters to lack non-contestable HB 19 ID. 11 These results are also statistically significant at the 95% confidence interval The Secretary s expert, Dr. M.V. Hood III, also found racial disparities in HB 19 ID possession. Specifically, Dr. Hood found that 0.87% of white, 1.44% of Black, and 1.26% of Hispanic registered voters lack HB 19 ID, and he acknowledged that these disparities are statistically significant at the 95% confidence interval Dr. Hood contends that, while the racial disparities in possession rates are statistically significant, the quantit[ies] at issue are not substantively significant because the racial gap in possession rates is not very large. 14 But, he concedes that substantive significance has no meaning within the field of statistics 15 and that his views on this point are lay opinion, unsupported by statistical evidence Siskin 3/21 Report at 5-8, Table 1 (Pltfs Ex. A). 11 Id. at Id. at 22, Decl. of M.V. Hood III, May 16, 2017 ( Hood 5/16 Decl. ) at 20 (Pltfs Ex. C). 14 Id. at 20; Hood Dep. Tr., July 12, 2017 ( Hood Dep. Tr. ) at 57: (Pltfs Ex. D). 15 Hood Dep. Tr. at 56:14-57:4 (Pltfs Ex. D). 16 See id. at 54:

12 Case 2:15-cv LSC Document 234 Filed 09/29/17 Page 12 of 39 B. The Undisputed Material Facts Pertinent to the Positively Identify Provision 7. Alabama law permits those in-person voters who can be positively identified by two poll officials to cast a regular ballot without producing HB 19 ID. 17 For those disproportionately Black and Hispanic voters without HB 19 ID, including those voters with religious objections to possessing HB 19 ID, 18 the PIP is their sole means of casting a regular ballot. 19 If poll officials are unable to reasonably match the name of the voter on the HB 19 ID to the name in the poll book or if the photo on the HB 19 ID cannot be reasonably matched to the appearance of the voter, poll officials can require a voter to vote under the PIP There is no statutory or other definition of positively identify, but the Secretary interprets the phrase to mean that a voter who lacks HB 19 ID may cast a regular ballot if two poll officials will vouch for the voter i.e., attest to the voter s identity based solely on the poll officials personal acquaintance with the voter. 21 All other in-person voters who are not vouched for and nearly all other absentee voters 17 Ala. Code (e). 18 Fountain Dep. Tr. at 79:16-81:16 (Pltfs Ex. E); Wahl Dep. Tr. at 12:6-14:5, 48:23-49:20 (Pltfs Ex. F); see also Report by J. Morgan Kousser, April 12, 2017 ( Kousser 4/12 Report ) 182 (Pltfs Ex. G); Stephen McLamb, AL lawmaker proposes voter photo ID law amendment for religious objections, 48 WAFF, March 8, 2017 (Pltfs Ex. H). 19 2nd Amend. Compl. 96, 157, 162 & Ans. 96, 157, 162; Def. s Fourth Am. & Suppl. Answers to Pls. Interrog. No. 24 at (Pltfs Ex. B). 20 Def. s Fourth Am. & Suppl. Answers to Pls. Interrog. No. 25 at (Pltfs Ex. B); see also Packard Vol. II Dep. Tr. at 494:9-495:5 (Pltfs Ex. I). 21 Packard Vol. II Dep. Tr. at 494:9-495:5; 496:5-497:2; 498:23-499:6 (Pltfs Ex. I); see also Merrill Dep. Tr. at 154:9-155:15 (Pltfs Ex. J). 5

13 Case 2:15-cv LSC Document 234 Filed 09/29/17 Page 13 of 39 who lack HB 19 ID may cast provisional ballots, which will be counted only if they can provide HB 19 ID to election officials within a short timeframe Under the Secretary s interpretation, each poll official is the sole judge of whether to inform voters about the PIP. Poll officials are not required to tell voters about the PIP; a voter must know to request it. 23 The posters with election information at polling places do not mention that a voter must request the PIP Additionally, under the Secretary s interpretation, a poll official is not required to positively identify a voter, even if the poll official knows the voter. 25 Further, the Secretary instructs poll officials not to positively identify voters whom they do not personally know, even if that voter is able to produce a non-hb 19 ID, such as a birth certificate or voter registration card. 26 This is true even though voters can use non-hb 19 IDs or self-executed affidavits to prove their identities when applying for voter ID cards By contrast, former Secretary of State Beth Chapman who served from January 2007 to July 2013, 28 helped to craft HB 19, 29 and was responsible for the 22 2nd Amend. Compl. 1 & Ans. at Packard Vol. III Dep. Tr. at 530:6-18 (Pltfs Ex. I); Brown Vol. II Dep. Tr. at 321:2-323:8 (Pltfs Ex. L). 24 Notice to Voters: Have Your I.D., DEF_ (Pltfs Ex. M). 25 Packard Vol. III Dep. Tr. at 530:6-531:4 (Pltfs Ex. I). 26 Packard Vol. II Dep. Tr. at 498:23-500:21 (Pltfs Ex. I); see also Brown Vol. II Dep. Tr. at 321:2-323:8 (Pltfs Ex. L); Merrill Dep. Tr. at 152:6-155:15, 54:7-12 (Pltfs Ex. J). 27 Packard Vol. II Dep. Tr. at 296:14-299:4, 300:18-304:22 (Pltfs Ex. I); see also Alabama Photo Voter ID Guide (2d ed. 2016) at 9-10, DEF_ (Pltfs Ex. N). 28 Chapman Dep. Tr. at 14:22-15:4 (Pltfs Ex. O). 29 Id. at 123:11-124:11; 130:15-131:22. 6

14 Case 2:15-cv LSC Document 234 Filed 09/29/17 Page 14 of 39 initial administrative rules implementing that law 30 interprets the PIP so that poll officials can positively identify any voter who shows a valid non-photo ID To measure the racial impact of the PIP, Plaintiffs expert, Dr. Lonna Rae Atkeson, used data from 2008 to 2016 from the Survey of Performance of American Elections ( SPAE ), which asks, among other things, whether the voter knew his or her check-in poll worker. Dr. Atkeson found that only 23% of all voters in Alabama knew their check-in poll officials. 32 She further determined that 57% of white and 0% of Black registered voters without a driver s license, the most common HB 19 ID, knew their check-in poll officials in Alabama, and this difference is statistically significant at the 95% confidence interval The Secretary s experts, Dr. Hood and Dr. William H. Stewart, conceded that they did not perform any statistical or substantive analysis to refute Dr. Atkeson s findings. 34 Like Dr. Atkeson, Dr. Hood also relied on the SPAE question about whether a voter knows her/his check-in poll worker as a relevant measure of the racial impact of the PIP. 35 Dr. Hood conceded that Alabama voters without HB 19 ID might be different from Alabama voters in general and that, unlike Dr. Atkeson, 30 Id. at 159:21-160:20; see also Brown Vol. I Dep. Tr. at 26:8-27:3 (Pltfs Ex. L). 31 Chapman Dep. Tr. at 136:21-137:12 (Pltfs Ex. O). 32 Report by Dr. Lonna Rae Atkeson, April 12, 2017 ( Atkeson 4/12 Rep. ) at (Pltfs Ex. P); see also Addendum by Dr. Lonna Rae Atkeson, July 6, 2017 at 1-2 (Pltfs Ex. Q). 33 Atkeson Addendum at 2 (Pltfs Ex. Q); see also Atkeson Dep. Tr. at 88:17-89:24 (Pltfs Ex. R). 34 Hood Dep. Tr. at 217:19-219:14; 236:6-237:1 (Pltfs Ex. D); Stewart Dep. Tr. at 163:7-20; 164:10-167:17 (Pltfs Ex. S). 35 Decl. of M.V. Hood III, May 30, 2017 ( Hood 5/30 Decl. ) at (Pltfs Ex. T). 7

15 Case 2:15-cv LSC Document 234 Filed 09/29/17 Page 15 of 39 he had not tried to determine whether Black voters without HB 19 ID are less likely than similar whites to know their poll officials Plaintiffs Giovana Ambrosio, Shameka Harris, Debra Silvers, and Elizabeth Ware were unable to cast effective ballots on at least one occasion because they lacked HB 19 ID, did not know their poll officials, or no poll official vouched for them. 37 Ms. Silvers and Ms. Ware were not told of the PIP by poll officials when they tried to vote Josh Wahl is a white registered voter who, for religious reasons, lacks HB 19 ID. In the 2014 primary and runoff and 2016 general elections, Mr. Wahl was able to vote a regular ballot because two poll officials, including a longtime neighbor, vouched for him. 39 However, in the 2014 general and 2016 primary and runoff elections, Mr. Wahl and four of his family members were denied the right to vote because those same poll officials capriciously refused to vouch for them again. 40 Mr. Wahl and his family did not cast provisional ballots because they knew that their ballots would never actually be counted Hood Dep. Tr. at 215:1-219:14 (Pltfs Ex. D). 37 Ambrosio Dep. Tr. at 30:1-30:20; 46:18-48:12 (Pltfs Ex. U); Decl. of Giovanna Ambrosio in supp. of Partial Mot. for Summ. J. ( Ambrosio Decl. ) 2-9 (Pltfs Ex. MM); Harris Dep. Tr. at 58:3-59:7 (Pltfs Ex. V); Silvers Dep. Tr. at 21:11-24; 28:10-31:2; 77:18-78:5 (Pltfs Ex. W); Ware Dep. Tr. at 89:2-14; 137:23-139:7 (Pltfs X). 38 Silvers Dep. Tr. at 28:10-20; 77:18-78:5 (Pltfs Ex. W); Ware Dep. Tr. at 89:2-14; 137:23-139:7 (Pltfs Ex. X). 39 Wahl Dep. Tr. at 10:14-13:22; 40:22-57:23 (Pltfs Ex. F). 40 Id. at 17:9-18:23; 68:5-69:10; 73:21-74:20; 109:4-20; 122:16-123:4. 41 Id. at 69:11-71:9; 113:6-114:10. 8

16 Case 2:15-cv LSC Document 234 Filed 09/29/17 Page 16 of Celestine Megginson 42 and Chris Cameron 43 are Black registered voters who were unable to vote in at least one election because they lack HB 19 ID, and no poll officials vouched for them or informed them of the PIP. Jewel Castopheny is a Black registered voter who was improperly denied a voter ID card by the Secretary s mobile unit. She was required to vote under the PIP in November 2016, however, because she did not see her ballot placed in the voting machine, she is unsure whether her ballot was counted. 44 Tina Grant is a Black registered voter who was told by her poll official that she could not vote with her valid driver s license unless she also had a voter ID card. The official improperly denied her the right to cast any ballot and did not vouch for her or tell her about the PIP In 2014, Jerome Gray, a member of Plaintiff Alabama NAACP, assisted two Black voters who lacked HB 19 ID, but knew two of their poll officials. However, the white chief inspector (who is the head of the polling place) refused to let them vote at all and insisted that everyone had to show HB 19 ID. In response, Mr. Gray called the Secretary s office. The Secretary s office instructed this chief inspector that people could use the PIP to vote. In 2016, a federal observer reported that the 42 Binder Dep. Tr. at 10:3-21; 12:18-13:5; 14:10-15:18; 18:8-19:6; 47:19-52:8 (Pltfs Ex. Y); see also GBM_ (Pltfs Ex. Z). 43 Decl. of Christopher Cameron in supp. of Partial Mot. for Summ. J. ( Cameron Decl. ) 1-3, 6-9 (Pltfs Ex. NN); see also Silvers Dep. Tr. at 63:9-15; 91:24-92:6 (Pltfs Ex. W). 44 Decl. of Jewel Castopheny in supp. of Partial Mot. for Summ. J. ( Castopheny Decl. ) 1-7 (Pltfs Ex. OO). 45 Decl. of Tina Grant in supp. of Partial Mot. for Summ. J. ( Grant Decl. ) 1-5 (Pltfs Ex. PP). 9

17 Case 2:15-cv LSC Document 234 Filed 09/29/17 Page 17 of 39 same chief inspector continued to incorrectly inform all voters that they [m]ust bring in photo ID without mentioning either the PIP or provisional ballot process Since the Photo ID Law went into effect in 2014, at least 2,197 otherwise eligible voters have had their provisional ballots rejected because they failed to provide HB 19 ID. Black voters have cast 40.9% of these ballots and were 4.58 times more likely than white voters to have their ballots rejected for ID reasons. Of those rejected provisional ballots, 291 were cast by in-person voters who lacked HB 19 ID and who were not vouched for by poll officials under the PIP The provisional ballot data is incomplete and does not represent every voter affected by HB 19. Poll officials may fail to offer a provisional ballot to a voter without HB or voters may decline to cast one. 49 Counties are supposed to input all provisional ballot data into the state voter database, but that data may contain errors 50 and not every county enters its data. 51 The four counties that have never 46 Gray Dep. Tr. 265:20-272:21; 315:5-318:16; 328:2-329:3 (Pltfs Ex. BB). 47 Report by Bernard Siskin, Ph.D., April 12, 2017 ( Siskin 4/12 Rep. ) at 8-10 & nn.2-3 (Pltfs Ex. CC); Hood 5/30 Decl. at 5-6 (Pltfs Ex. T). 48 Binder Dep. Tr. at 12:18-13:5 (Pltfs Ex. Y); Gray Dep. Tr. at 315:5-318:16 (Pltfs Ex. BB); Silvers Dep. Tr. at 77:22-78:5 (Pltfs Ex. W); Ware Dep. Tr. at 88:7-89:14 (Pltfs Ex. X); Grant Decl. 1-5 (Pltfs Ex. PP); see also Aug. 23, 2016 Federal Observer Reports, Allen v. City of Evergreen, No. 1:13-cv (S.D. Ala. Feb. 3, 2017), ECF No at 19 (Pltfs Ex. DD); id., ECF No at 19 (Pltfs Ex. EE); id., ECF No at 19 (Pltfs Ex. FF); id., ECF No at 19 (Pltfs Ex. GG). 49 Pltfs Ex. B ( the poll official shall permit the voter, at the voter s option, to cast a provisional ballot ) (emphasis added); see also Ambrosio Decl. 2, 8 (Pltfs Ex. MM); Harris Dep. Tr. at 58:3-59:7 (Pltfs Ex. V); Wahl Dep. Tr. at 69:11-71:9; 113:6-114:10 (Pltfs Ex. F). 50 Packard Vol. III Dep. Tr. at 695:17-697:5 (Pltfs Ex. I). 51 Report by Bernard Siskin, Ph.D., April 24, 2017 ( Siskin 4/24 Rep. ) at (Pltfs Ex. HH). 10

18 Case 2:15-cv LSC Document 234 Filed 09/29/17 Page 18 of 39 reported on provisional ballots and the two that did not report in 2014 have higher percentages of Black voters than the State as a whole Poll officials are not uniformly applying HB 19. At times, they apply the law more restrictively than the Secretary has interpreted it. For example, in Jefferson County, poll officials have rejected valid driver s licenses, including those expired less than sixty days, 53 and, in the City of Evergreen, no poll official knows to offer voters without HB 19 ID provisional ballots. 54 In other ways, poll official have applied HB 19 and the PIP less restrictively. In 2016, for example, precincts in Evergreen and York were permitting voters who poll officials did not know to vote with non-photo ID 55 or with no ID at all. 56 In Tallapoosa, a voter was positively identified after he showed his voter registration card For the November 2016 election, the Secretary asked county officials to track PIP usage in each precinct. 58 While this data is incomplete, 59 Dr. Hood found that at 52 Siskin 4/12 Rep. at (Pltfs Ex. CC). 53 King Dep. Tr. at 49:4-50:1 (Pltfs Ex. II); Grant Decl. 1-5 (Pltfs Ex. PP). 54 Gray Dep. Tr. at 317:17-318:8 (Pltfs Ex. BB); see also Pltfs Ex. DD; id., ECF No at 19 (Pltfs Ex. EE); id., ECF No at 19 (Pltfs Ex. FF); id., ECF No at 19 (Pltfs Ex. GG). 55 Gray Dep. Tr. at 239:23-243:7, 313:4-314:13 (Pltfs Ex. BB); see also Pltfs Ex. GG. 56 Silvers Dep. Tr. at 62:12-63:8 (Pltfs Ex. W). 57 Log of Voters Positively Identified by Two Election Officials Nov. 8, 2016, Tallapoosa, at 3 (Pltfs Ex. JJ); see also Atkeson Dep. Tr. at 74:20-77:3 (Pltfs Ex. R). 58 Hood Dep. Tr. at 222:12-223:4 (Pltfs Ex. D); see also Memo. from Ala. Sec y of State John Merrill to All Probate Judges (Oct. 31, 2016) (Pltfs Ex. KK); Atkeson Dep. Tr. at 74:20-75:13 (Pltfs Ex. R). 59 Hood Dep. Tr. at 222:6-229:15 (Pltfs Ex. D). 11

19 Case 2:15-cv LSC Document 234 Filed 09/29/17 Page 19 of 39 least 71 voters were required to use the PIP to vote. Further, 23% of those voters who voted under the PIP in November 2016 were Black and none were Hispanic. 60 LEGAL STANDARD Under Rule 56(a) of the Federal Rules of Civil Procedure, [t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact, and the movant is entitled to judgment as a matter of law. An issue of fact is material if, under the applicable substantive law, it might affect the outcome of the case. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259 (11th Cir. 2004) (citation omitted). A dispute of fact is genuine only if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party, id. at 1260, that is, only if the evidence presents a sufficient disagreement to require submission to a jury. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, (1986). Under Rule 56(a), a party may move for summary judgment, identifying each claim or defense or the part of each claim or defense on which summary judgment is sought. Fed. R. Civ. P. 56(a) (emphasis added). In the 2010 amendments to the Rules, the advisory committee emphasized its intent to make clear at the beginning that summary judgment may be requested not only as to an entire case but also as to... part of a claim or defense. Fed. R. Civ. P. 56 advisory committee s note to 2010 amendment. This allows issue-narrowing adjudication 60 Hood 5/30 Decl. at 24 (Pltfs Ex. T). 12

20 Case 2:15-cv LSC Document 234 Filed 09/29/17 Page 20 of 39 in a motion that may not dispose of a claim in its entirety. Scott v. United States, 825 F.3d 1275, 1277 (11th Cir. 2016). ARGUMENT I. THERE IS NO GENUINE DISPUTE OF MATERIAL FACT THAT THERE ARE STATISTICALLY SIGNIFICANT RACIAL DISPARITIES IN HB 19 POSSESSION RATES One element of Plaintiffs 2 and constitutional claims is to demonstrate that voters of color are less likely to possess HB 19 ID than white voters. The undisputed evidence establishes precisely such a racial disparity, and this Court should therefore grant partial summary judgment on this part of Plaintiffs claims. Disparate impact is one element of Plaintiffs 2 results claim. Section 2 prohibits any standard, practice, or procedure... imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color U.S.C (a). To analyze a vote denial claim under 2, courts use a two-prong test: First, the challenged law must impose a discriminatory effect; and, second, that burden must be in part caused by or linked to social and historical conditions that produced discrimination against voters of color. See Veasey v. Abbott, 830 F.3d 216, 244 (5th Cir. 2016) (en banc), cert. denied, 137 S. Ct. 612 (2017). To address the first prong in the photo ID context, courts have considered whether there exists a racially disparate rate of photo ID possession before then examining the many specific burdens that make it more difficult for voters of color 13

21 Case 2:15-cv LSC Document 234 Filed 09/29/17 Page 21 of 39 to obtain photo ID. Veasey, 830 F.3d at Plaintiffs intend to prove at trial the burdens that voters of color face in obtaining HB 19 ID and the disparate impact of those burdens. Thus, while the parties dispute the existence and extent of these burdens, there is no dispute that statistically significant disparate ID possession rates exist by race, and thus summary judgment is appropriate on this narrow aspect of the first prong of Plaintiffs 2 claim. Disparate impact is also relevant to Plaintiffs constitutional claims. To succeed, Plaintiffs must prove that the Photo ID Law was intentionally adopted or maintained by state officials for a discriminatory purpose. Thornburg v. Gingles, 478 U.S. 30, 35 (1986). [A]n important starting point for establishing discriminatory purpose is [t]he impact of the [Photo ID Law,] whether it bears more heavily on one race than another. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977) (citation omitted). The fact that minorities are less likely to have HB 19 ID suffices to establish one of the circumstances evidencing discriminatory intent. N. Carolina State Conf. of NAACP v. McCrory, 831 F.3d 204, 231 & n.8 (4th Cir. 2016). A. There is No Genuine Dispute that Black and Hispanic Registered Voters are Less Likely to Possess HB 19 ID In determining whether there is a racial disparity in HB 19 ID possession rates, courts consider whether the disparity is statistically significant and thus highly unlikely to have arisen by chance. Veasey, 830 F.3d at 250. It is well within the district court s purview to assess whether minorities are disproportionately affected 14

22 Case 2:15-cv LSC Document 234 Filed 09/29/17 Page 22 of 39 by a change in the law based on statistical analyses. Id. at 252; cf. Miss. State Chapter, Operation Push, Inc. v. Mabus, 932 F.2d 400, 409 (5th Cir. 1991) ( We find it difficult to conceive of a more appropriate measure of the discriminatory effects of these laws than figures representing disparity in registration rates between all black and white eligible voters in the state. ). Here, both Plaintiffs and Defendant s experts agree that there are statistically significant racial disparities in HB 19 ID possession rates between voters of color and white voters. Plaintiffs expert Dr. Siskin found statistically significant racial disparities in HB 19 ID possession rates. Dr. Siskin conducted two analyses. Under both analyses, he estimated that voters of color are more likely than whites to lack HB 19 ID and that these differences are statistically significant. Statement of Undisputed Facts ( SOF ), supra 2-4 (Black voters are 1.65 times and Hispanic voters are 2.10 times more likely than white voters to lack a non-contestable HB 19 ID). The Secretary s expert, Dr. Hood, also determined that there are statistically significant racial disparities in HB 19 possession rates between voters of color and white voters. SOF 5 (0.87% of white voters lacked HB 19 ID, as opposed to 1.44% of Black and 1.26% of Hispanic voters). Based on his calculations, he admitted that racial differences in ID non-possession... are also statistically significant, meaning that the estimated gaps in ID possession... did not occur by random chance. Hood 5/16 Decl. at 20 (Pltfs Ex. C) (emphasis added). While Plaintiffs believe that errors in Dr. Hood s analyses resulted in an underestimation of the 15

23 Case 2:15-cv LSC Document 234 Filed 09/29/17 Page 23 of 39 number of Alabama voters who do not have HB 19 ID, 61 even were the Court to adopt his flawed analysis, Dr. Hood s findings still show statistically significant racial disparities in HB 19 ID possession rates. Accordingly, summary judgment is warranted on this narrow issue. B. Substantive Significance Is Immaterial to a Finding of Disparate HB 19 ID Possession Rates While conceding that the disparities in HB 19 ID possession are statistically significant, Dr. Hood contends that the possession disparities are not substantively significant because it appear[s that there are] very few registrants (of any racial group) who may be presently affected by HB 19, id., or because the size of the percentages in the disparities in possession rates for the different racial groups is not sufficiently large. SOF 6. There is no legal or statistical support for either position. First, Plaintiffs are not required to prove that a certain absolute number of Black and Hispanic voters are affected by HB 19. Instead, the proper analysis considers the relative proportion of burdened voters within each racial group. N. Carolina State Conf. of NAACP v. McCrory, 182 F. Supp. 3d 320, 372 (M.D.N.C. 2016) (finding that whatever the true number of individuals without qualifying IDs, 61 Specifically, Dr. Hood erred in removing certain categories of voters from Dr. Marker s survey population and then applied the results of Dr. Marker s survey to estimate the number of registered voters with a photo ID as if those individuals were still part of the survey. Hood 5/16 Decl. at (Pltfs Ex. C). Dr. Hood conceded that it would have been more accurate to remove these registered voters from the survey and then recalculated the survey results, see Hood Dep. Tr. at 17:11-21:2 (Pltfs Ex. D), but that he never asked for the data to do so, id. at 60:9-64:10. In any event, Dr. Siskin performed alternative calculations based on Dr. Hood s adjustments, which did not change Dr. Siskin s conclusion that the disparity in racial possession rates were statistically significant. See Pltfs Ex. QQ; Siskin Dep. Tr. at 71:7-74:15 (Pltfs Ex. LL). 16

24 Case 2:15-cv LSC Document 234 Filed 09/29/17 Page 24 of 39 African Americans are more likely to be among [those lacking valid photo ID] than whites and that it is more likely than not that racial disparities exist in the population that lacks qualifying photo ID ), rev d on other grounds, 831 F.3d 204. The absolute number of voters lacking HB 19 ID is immaterial to a finding of a racial disparity in ID possession rates. See League of Women Voters of N. Carolina v. North Carolina, 769 F.3d 224, 247 n.5 (4th Cir. 2014) (finding error in the belief that the injury to a smaller margin of African American voters... would be somehow less irreparable ); Williams v. City of Dothan, 818 F.2d 755, 764 (11th Cir. 1987) ( When considering disparate effect the focus should not be on absolute numbers ). Second, because right to vote is personal, there is no minimum number of voters whose rights must be abridged before 2 and the Constitution apply. Frank v. Walker, 819 F.3d 384, 386 (7th Cir. 2016). Rather, the text of the VRA forbids the denial or abridgement of the right of any citizen of the United States to vote on account of race or color. 52 U.S.C (a) (emphasis added). Therefore, [s]etting aside the basic truth that even one disenfranchised voter let alone several thousand is too many, what matters for purposes of Section 2 is not how many minority voters are being denied equal electoral opportunities but simply that any minority voter is being denied equal electoral opportunities. League of Women Voters, 769 F.3d at 244 (citing 52 U.S.C (a)); see also Chisom v. Roemer, 501 U.S. 380, 408 (1991) (Scalia, J., dissenting) ( [Section] 2 would... be violated... even if the number of potential black voters was so small that they would 17

25 Case 2:15-cv LSC Document 234 Filed 09/29/17 Page 25 of 39 on no hypothesis be able to elect their own candidate. ); Jones v. City of Boston, 752 F.3d 38, 48-49, 53 (1st Cir. 2014) (statistical significance proves disparate impact). Further, Dr. Hood s opinion on substantive significance is nothing more than a lay contention that deserves no evidentiary weight. As Dr. Hood conceded at his deposition, his contention regarding the lack of substantive significance is not grounded on any criteria from the field of statistics: Q: Okay. Now, is there a statistical definition of substantive significance? A: No. That s my judgment. Hood Dep. Tr. at 56:14-17 (Pltfs Ex. D); see also id. at 56:18-57:5 (indicating that there is no definition of substantive significance in the social science of statistics). Rather, his contention as to substantive significance is based solely on his opinion that the differences in possession rates between different races are just not very large. SOF 6. He fully... admit[ted] that this conclusion was merely his opinion. Id. This opinion should not be accorded any weight. [I]f an expert opinion does not have a valid scientific connection to the pertinent inquiry it should be excluded because there is no fit. Boca Raton Cmty. Hosp., Inc. v. Tenet Health Care Corp., 582 F.3d 1227, 1232 (11th Cir. 2009) (citations omitted). I. PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT ON THEIR CLAIM THAT THE POSITIVELY IDENTIFY PROVISION IS A REQUIREMENT OR PREREQUISITE TO VOTING IN VIOLATION OF SECTION 201 OF THE VOTING RIGHTS ACT Section 201 of the VRA categorically prohibits the use of any test or device as a voting qualification, stating that [n]o citizen shall be denied, because of his 18

26 Case 2:15-cv LSC Document 234 Filed 09/29/17 Page 26 of 39 failure to comply with any test or device, the right to vote in any Federal, State, or local election conducted in any State or political subdivision of a State. 52 U.S.C (a). All literacy tests and similar voting qualifications were abolished by the VRA because, [a]lthough such tests may have been facially neutral, they were easily manipulated to keep blacks from voting. N.W. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 198 (2009). This per se ban on tests and devices removed the burden of demonstrating the discriminatory application of a test. Mem. of Op. at 21, ECF No. 22. Section 201 also expressly defines a test or device to include any prerequisite for voting that requires any citizen to prove his [or her] qualifications by the voucher of registered voters or members of any other class. 52 U.S.C (b)(4). Under the Secretary s interpretation of the Positively Identify Provision, it acts as a forbidden test or device because it requires those citizens without HB 19 ID to prove [their] qualifications by the voucher of two poll officials. Id. As such, 201, by its plain terms, reaches the Provision, even if as this Court has previously stated it functions as a peripheral method of voting that affects only people without HB 19 ID or might nominally increase the number of eligible voters. Indeed, most of the notorious tests or devices prohibited by 201 of the VRA similarly only affected some voters and had the effect of increasing the number of eligible voters. Summary judgment on this claim is therefore appropriate. 19

27 Case 2:15-cv LSC Document 234 Filed 09/29/17 Page 27 of 39 A. It is Undisputed that Tens of Thousands of Disproportionately Black and Hispanic Alabama Voters Must Use the Positively Identify Provision to Vote Under HB 19, a voter who does not have valid photo identification may vote a regular ballot only if the individual is positively identified by two election officials. Ala. Code (e). The phrase positively identify is undefined in the Photo ID Law, but the Secretary interprets it to mean that a person who lacks HB 19 must prove her identity by the voucher, i.e., personal acquaintance and attestation, of two poll officials. SOF 9. Shortly after Plaintiffs Complaint was filed and before the start of discovery or the development of the relevant facts, Plaintiffs filed a motion for a preliminary injunction on their 201 claim. This Court ruled against Plaintiffs and held, among other things, that there was insufficient evidence as to the number of voters without a photo ID who might rely on the positively identify provision. ECF No. 22 at 13. Now, however, discovery and the undisputed facts demonstrate that there are tens of thousands of disproportionately Black and Hispanic voters who lack HB 19 ID and must use the Provision to vote. 62 SOF 2-6, 21; see also supra at pp-pp Moreover, although proof of discrimination is unnecessary to resolve this claim in Plaintiffs favor, ECF No. 22 at 21, the undisputed facts also show that, as applied, the voucher test imposes a heavier burden on voters of color, United States v. Logue, 344 F.2d 290, 292 (5th Cir. 1965), who are less likely to possess HB 19 ID and are less likely to know their poll officials than whites. SOF 3-6, 12. Because 57% of whites without the most common HB 19 ID know their poll officials, but few such Black voters do, SOF 12, the Provision enhances HB 19 s discriminatory impact. There is also no dispute that thousands of people, a disproportionate number of whom are Black, have had their provisional ballots rejected for lack of HB 19 ID and that hundreds of those people voted in-person and could not use the Provision. Id. 18. Further, while Black voters were 20

28 Case 2:15-cv LSC Document 234 Filed 09/29/17 Page 28 of 39 B. The Positively Identify Provision is Covered by Section 201 of the Voting Rights Act This Court previously stated that it thought that the Provision is not a requirement or a prerequisite to voting, ECF No. 22 at 23, but merely a peripheral method of proving a voter s identity that supplements the objective requirement of producing a photo ID. Id. at 22; but see ECF No. 165 at 10. Plaintiffs respectfully submit that this Court s reasoning cannot be reconciled with the plain terms of the VRA s ban on tests or devices, Congress s objectives in passing it, and the judicial and administrative decisions construing its scope. 1. The definition of prerequisites for voting in 201 of the VRA covers every aspect of the voting process Section 201 states that [n]o citizen shall be denied, because of his failure to comply with any test or device, the right to vote, 52 U.S.C (a) (emphasis added), and it defines test or device as a prerequisite for voting. United States v. Bd. of Comm rs of Sheffield, 435 U.S. 110, 120 (1978) (emphasis in original). 63 overrepresented among those without HB 19 ID, id. 3-6, they were underrepresented (only 23%) of the voters who actually used the Provision to vote in November 2016, id The Supreme Court in Sheffield and other courts in several other cases cited herein are construing 4 of the VRA, not 201; but 201 is the means whereby Congress... extended the ban in 4(a) on tests and devices nationwide, Shelby Cty. v. Holder, 133 S. Ct. 2612, 2620 (2013), and the sections are essentially identical. Compare, 4(a) (52 U.S.C (a)(1)) ( [N]o citizen shall be denied the right to vote in any Federal, State, or local election because of his failure to comply with any test or device.... ), with 201(a) (52 U.S.C (a)) ( No citizen shall be denied, because of his failure to comply with any test or device, the right to vote in any Federal, State, or local election.... ); compare 4(c) (52 U.S.C (c)) ( The phrase test or device shall mean any requirement that a person as a prerequisite for voting.... ), with 201(b) (52 U.S.C (b)) ( As used in this section, the term test or device means any requirement that a person as a prerequisite for voting.... ). 21

29 Case 2:15-cv LSC Document 234 Filed 09/29/17 Page 29 of 39 Importantly then, the VRA expansively defines vote and voting to include all action necessary to make a vote effective... including, but not limited to... action required by law prerequisite to voting, casting a ballot, and having such ballot counted properly U.S.C (c)(1) (emphasis added). This definition encompasses every step in the process: It includes steps in the voting process before entering the ballot box, registration, and it includes steps in the voting process after leaving the ballot box, having such ballot counted properly. OCA-Greater Houston v. Texas, 867 F.3d 604, 615 (5th Cir. 2017). For that reason, the Supreme Court has stated that the reach of the ban on tests and devices is to be broadly construed in light of the fact that a test or device may be employed by any official with control over any aspect of an election. Sheffield, 435 U.S. at 120 (emphasis added). Thus, under the VRA s comprehensive definition of prerequisites for voting, the Provision is plainly a prohibited test or device within the meaning of Congress passed the VRA with the intent to prohibit tests from serving even as alternate methods of voting Congress enacted the VRA for the broad remedial purpose of ridding the country of racial discrimination in voting. Chisom, 501 U.S. at 403 (internal citation and quotation marks omitted). For that reason, the VRA is to be interpreted in a manner that provides the broadest possible scope in combating racial discrimination. Id; see also Sheffield, 435 U.S. at (examining congressional objectives in enacting prohibition on tests or devices to decide its scope). 22

30 Case 2:15-cv LSC Document 234 Filed 09/29/17 Page 30 of 39 In passing the VRA, Congress prohibited any use of a test (including voucher tests), without regard to whether such tests or devices were the only way by which a voter could qualify to vote. Indeed, Congress knew that tests were often adopted as exemptions to other requirements or as one amongst many alternate methods of voting. Far from making such tests more palatable, Congress recognized that the rationales behind such alternative provisions was to assure that illiterate whites were not disenfranchised. S. Rep. No , pt. 3, at 4-5 (1965) (hereinafter the Senate Report ) (Pltfs Ex. K); 64 see also South Carolina v. Katzenbach, 383 U.S. 301, (1966) (listing the alternate tests); Katzenbach v. Morgan, 384 U.S. 641, 644, 654, 647 n.2 (1966) (listing a literacy test s many exemptions ). More specifically, voucher tests historically did not apply to all voters and often existed as exemptions to stricter, more objective primary requirements, like the literacy test, poll tax, or even voter ID requirements. See, e.g., Senate Report, at 43 n.19 (App x B) (identifying La. Rev. Stat. 18:31(5)), 65 which exempted a person who was disabled or did not speak English from the literacy test if he could bring[ 64 S. Rep. No (1965), as reprinted in 1965 U.S.C.C.A.N (Pltfs Ex. K). 65 La. Rev. Stat. Ann. 18:31 (1967) (Pltfs Ex. AA). In addition, a person who was illiterate could register to vote if he gave a reasonable interpretation of the Constitution when read to him and the registrar attested to, i.e. vouched for, his application. Id. 18:36. Prior to 1960, these voucher test exemptions to the literacy test, id. 18:31(5) and 18:36, let tens of thousands of illiterate white and Black voters register. United States v. Louisiana, 224 F. Supp. 353, 386 & n.82 (E.D. La. 1963), aff d 380 U.S. 145 (1965). While Congress specifically identified these exemptions as prohibited tests, Senate Report at 42 nn.16 & 19 (Pltfs Ex. K), under this Court s prior ruling, the VRA would not reach them since they were not strict requirements for everyone and resulted in more Black voters being registered. 23

31 Case 2:15-cv LSC Document 234 Filed 09/29/17 Page 31 of 39 ] with him two qualified electors... to sign written affidavits, as a prohibited voucher provision). Indeed, while the Senate Report lists many cases in which voucher tests were improperly used to effect discrimination, in all but one of those cases, the test was not a strict requirement for every single person. Id. at (citing Logue, 344 F.2d 290 (5th Cir. 1965); 66 United States v. Clement, 231 F. Supp. 913, 916 (W.D. La. 1964); United States v. Hines, 9 Race Rel. L. Rep (N.D. Ala. 1964); United States v. Ward, 222 F. Supp. 617, (W.D. La. 1963); United States v. Manning, 205 F. Supp. 172, 173 (W.D. La. 1962); United States v. Ass n of Citizen Councils, 196 F. Supp. 908, 911 (W.D. La. 1961)). 67 Thus, Congress was fully aware that the tests and devices it was prohibiting through the VRA were being used as peripheral or alternate methods of voting. If the VRA did not reach such alternate methods, the States, which in the past had been so ingenious in their defiance of the spirit of federal law, could have easily 66 The exception was Logue, but, even there, registrars would vouch for, and effectively waive such requirements, for white voters. 344 F.2d at 292. Furthermore, the Fifth Circuit expressly rejected any alleged distinction between those voucher tests that had been strictly applied to all voters versus tests that had been selectively applied only to some. Id. 67 The Senate Report, at 47 (App x H) (Pltfs Ex. K), also identifies United States v. Lucky, 239 F. Supp. 233 (W.D. La. 1965) as a case involving a voucher test. There, the court held that the individual defendants who challenged the registration status of [4,047 of the 4,518] Negro [registered] voters... engaged in acts... which were racially discriminatory. Id. at 239. State law required challenged voters to appear before the Registrar within 10 days and prove their right to remain on the registration rolls by an affidavit signed by three registered voters. Id. at 235. Congress identified the process used in Lucky as a voucher test even though it was not a strict requirement i.e., 10% of Black voters did not need vouchers to remain registered because they had met the objective requirement of completing their registration application without error or omission. Id. at Further, the availability of the voucher test had increased the number of eligible voters by allowing 917 Black and 21 white challenged voters to remain registered. Id. 24