Case 3:15-cv HEH-RCY Document 214 Filed 04/06/16 Page 1 of 18 PageID# 5661

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1 Case 3:15-cv HEH-RCY Document 214 Filed 04/06/16 Page 1 of 18 PageID# 5661 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION BARBARA LEE, et al., Plaintiffs, v. No. 3:15CV357 HEH VIRGINIA STATE BOARD OF ELECTIONS, et al., Defendants. DEFENDANTS POST-TRIAL REBUTTAL BRIEF ARENT FOX, LLP Mark F. (Thor) Hearne, II (admitted pro hac vice) Stephen S. Davis (admitted pro hac vice) 112 S. Hanley Road, Suite 200 Clayton, MO Tel: Fax: thornet@ix.netcom.com stephen.davis@arentfox.com Dana J. Finberg (VSB No ) Sara T. Schneider (admitted pro hac vice) 55 Second Street, 21st Floor San Francisco, CA Tel: dana.finberg@arentfox.com sara.schneider@arentfox.com Kirsten Hart (admitted pro hac vice) 555 West Fifth Street, 48th Floor Los Angeles, CA Tel: kirsten.hart@arentfox.com Attorneys for Defendants

2 Case 3:15-cv HEH-RCY Document 214 Filed 04/06/16 Page 2 of 18 PageID# 5662 TABLE OF CONTENTS Page INTRODUCTION...1 ARGUMENT...3 A. No eligible Virginia voter has been, or will be, denied opportunity to vote nor is any Virginia voter unreasonably burdened by the 2013 law...3 B. Almost every Virginia voter already possesses the ID needed to vote and the 2013 law does not prevent any eligible Virginia voter from participating in Virginia elections....3 C. Virginia s 2013 voter ID law does not impermissibly burden any Virginia voter...6 D. Virginia did not adopt its 2013 voter ID law to deny racial minorities an equal opportunity to participate in Virginia elections....8 E. Virginia s 2013 voter ID law does not violate Section 2 of the Voting Rights Act...11 F. Plaintiffs theory that the 2013 voter ID law was motivated by partisan interest does not, even if true, invalidate the law CONCLUSION...15 i

3 Case 3:15-cv HEH-RCY Document 214 Filed 04/06/16 Page 3 of 18 PageID# 5663 INTRODUCTION Plaintiffs ask this Court to declare Virginia s 2013 voter ID law unconstitutional and to find that it violates Section 2 of the Voting Rights Act. Importantly, plaintiffs do not challenge Virginia s 2012 voter ID law which Attorney General Holder precleared under Section 5 of the Voting Rights Act. Plaintiffs challenge is to only those voter identification requirements adopted in the 2013 law. 1 Plaintiffs acknowledge Virginia s 2013 law is evaluated under the Anderson- Burdick rational basis standard. 2 See Plfs Post-trial Br., D.I. 211, pp Since 1996, Virginia has required a person to provide identification before casting a ballot. Under the 1996 law Virginia allowed a person without the requisite ID to cast a regular ballot if they signed an affidavit affirming their identity. In 2012 Virginia adopted a voter ID law (the 2012 law) that eliminated the self-authenticating affidavit and required all persons voting in-person to provide one of several forms of acceptable identification documents. In 2013 Virginia passed a law that expanded the list of permissible photo IDs by providing a free photo ID. (The prior 2012 law made no provision for free photo ID.) Virginia s 2013 law allows voters to use student IDs issued by private colleges and private employer-issued photo ID to vote. 3 After adopting the 2013 law, Virginia increased access to the ballot by adopting electronic voter registration. Virginia also allows mail-in absentee voting by which a person may cast a ballot 1 Thus, for example, Virginia s elimination of a self-authenticating affidavit accomplished in the 2012 law is not challenged. It is only the changes wrought by the 2013 law that are at issue. 2 Anderson v. Calebrezze, 460 U.S. 80 (1983); Burdick v. Takushi, 504 U.S. 428 (1992). In Crawford v. Marion Cty Election Bd., 553 U.S. 181, (2008), the Court confirmed the general rule that evenhanded restrictions that protect the integrity and reliability of the electoral process itself are not invidious and satisfy the standard set forth in Harper v. Virginia Bd. Of Elections, 383 U.S. 663, 788, n.9 (1966). 3 To be sure, the 2013 law eliminated certain forms of non-photo ID - principally a non-photo voter registration card and non-photo concealed-carry gun permit. 1

4 Case 3:15-cv HEH-RCY Document 214 Filed 04/06/16 Page 4 of 18 PageID# 5664 without providing any ID. 4 Unlike other states that require photo ID, Virginia does not require a person to provide any underlying documents -- such as a birth certificate -- to validate their identity to obtain a free voter ID. The decision to provide free photo ID without requiring any supporting documentation was intended to make it easier for Virginia residents to obtain free ID. 5 In Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008), and Frank v. Walker, 768 F.3d 744 (7th Cir. 2014), the Supreme Court and Seventh Circuit upheld voter ID laws that are stricter than Virginia s law. Thus, to prevail, plaintiffs must prove Virginia s law is substantively different from (and more burdensome than) Indiana s and Wisconsin s voter ID laws upheld in Crawford and Frank. Plaintiffs fail to meet this burden. The evidence demonstrates Virginia s 2013 voter ID law is more lenient and presents less of a burden than the voter ID laws upheld in Indiana and Wisconsin. Wisconsin and Indiana require a person to provide a copy of their birth certificate (and pay a fee for the birth certificate) to obtain a free ID to vote. Not so in Virginia. Virginia provides a free photo ID to any resident who requests an ID and provides their name, address and the last four digits of their Social Security number. See PX155 at PX The evidence proves that Virginia s voter ID law does not deny any eligible voter the opportunity to vote. 4 The Help America Vote Act (HAVA) requires first-time registrants to provide one of the forms of HAVA photo ID or non-photo ID with the voter s name and address before casting a ballot. 5 See Tr. 1500:11-18, 1446:4-9, 1447:2-8. 2

5 Case 3:15-cv HEH-RCY Document 214 Filed 04/06/16 Page 5 of 18 PageID# 5665 ARGUMENT A. No eligible Virginia voter has been, or will be, denied opportunity to vote nor is any Virginia voter unreasonably burdened by the 2013 law. The Equal Protection Clause prohibits a State from deny[ing] to any person within its jurisdiction the equal protection of the laws. Amend. XIV 1. Virginia s 2013 law voter ID law is a racially-neutral law of general application. No eligible Virginia voter has been or will be denied opportunity to participate in Virginia elections because of the 2013 law. B. Almost every Virginia voter already possesses the ID needed to vote and the 2013 law does not prevent any eligible Virginia voter from participating in Virginia elections. Plaintiffs make the remarkable claim that hundreds of thousands of Virginians likely do not possess a form of ID that can be used for voting. Plfs Br., D.I. 211, p. 2. Even more remarkably, plaintiffs claim the 2013 law will disenfranchise all voters. Id. Plaintiffs claim between 230,000 6 and 300,000 eligible Virginia voters lack the requisite identification documents. Id. at 3. These amazing claims rest on Dr. Rodden s analysis. But Rodden did not consider the many other forms of acceptable ID such as student IDs issued by public and private colleges and IDs issued by federal or state governments. To the extent he considered military IDs, Rodden underestimates the number of Virginians possessing military ID by 75 percent and further fails to consider the military ID possessed by military family members. Tr. 1728:12-21; 1730:8-16;. See Defs Post-trial Br., D.I. 212, IV(B)(2)(ii), pp Likewise, he failed to accurately account for student IDs. Id. 6 Dr. Rodden s report does not calculate the number of voters lacking ID. Rather, he testified that it was 230,000 or something like that Tr. 506:6-8; PX209 at This is not a reliable source. 3

6 Case 3:15-cv HEH-RCY Document 214 Filed 04/06/16 Page 6 of 18 PageID# 5666 Rodden admits that many of the individuals he categorizes as lacking ID in fact possess passports, employer-issued ID, federal government-issued ID, a veterans Affairs ID or a tribal ID. Tr. 577: Rodden does not include these acceptable forms of ID in his analysis. Tr. 1726: : 2. Rodden admits his methodology characterizes individuals who actually possess acceptable ID as not having ID. For example, the so-called affected voters Karen Stalling s father, Megan Cotten, Jack Etheredge and Abe Barranca all possessed the requisite ID but, under Rodden s methodology, these individuals were categorized as having no ID. 7 These problems affect all three of Dr. Rodden s analyses, since all three involve improper estimates of the student and military populations, and ignore all of the other forms of identification. But there are specific problems with the initial two approaches as well. His homogeneity analysis, his first approach, ignores the majority of registered voters. Tr. 1753:2-7. Moreover, there is a danger that his analysis is not representative, because homogeneity analysis tends to look at smaller census blocks, which could be different than more heavily populated census blocks. Tr. 1753: Dr. Rodden s ecological inference analysis is likewise flawed. Ecological inference is nothing more than an estimate, and more importantly, it tends to be more accurate for homogenous blocks, but less accurate where blocks are heterogeneous. Tr. 1755: :9; 1758: In other words, it adds little to his first approach, as it suffers from the same weaknesses. Furthermore, Rodden s conclusions are contrary to the admitted reality that fewer than 5,000 Virginia voters requested free photo IDs and that fewer than 1,200 non-id provisional ballots were cast in both the 2014 and 2015 elections, 8 and of these no-id provisional ballots, one- 7 See Tr. 578:1-25 (Stallings); Tr. 128:23-129:1; Tr. 579: :7 (Cotten), Tr. 580: 8-17 (Etheredge) and Tr. 580: :10 (Barranca). 8 DX301 at DX ; PX162 at PX

7 Case 3:15-cv HEH-RCY Document 214 Filed 04/06/16 Page 7 of 18 PageID# 5667 half were cured by the voter providing the necessary ID before the Friday following Election Day. 9 The evidence simply does not support plaintiffs contention that thousands of Virginia residents are entirely disenfranchised in the 2016 presidential election because they lack the requisite ID. Plfs Br. p. 1. In fact, the testimony from multiple plaintiffs witnesses demonstrated that voters possessing the requisite photo ID failed to cure their provisional ballots for reasons completely irrelevant to the photo-id requirement. See, e.g., Tr. 420:13-25; 422:23-423:18; 423:24-424:2 (Barranca failing to cure because he forgot to a photo of his employer-issued ID to the registrar); 144:11-13, 146:2-4, 147:7-22, 150:1-5 (Smith failing to cure because he did not feel his vote was needed). Indeed, if thousands of Virginia residents were really entirely disenfranchised, plaintiffs could have found at least one eligible voter to testify to this fact. But plaintiffs did not. Plaintiffs argument is remarkably similar to the argument the court rejected in Crawford: [The district court] found that petitioners had not introduced evidence of a single, individual Indiana resident who will be unable to vote as a result of [Indiana s voter ID law] or who will have his or her right to vote unduly burdened by its requirements. [And the district court] rejected as utterly incredible and unreliable an expert's report that up to 989,000 registered voters in Indiana did not possess either a driver's license or other acceptable photo identification. [The district court] estimated that as of 2005, when the statute was enacted around 43,000 Indiana residents lacked a stated-issued driver s license or identification card. Crawford, 553 U.S. at (internal citations omitted). The Supreme Court observed in Crawford that given the availability of free photo identification and greater public awareness of the new statutory requirement, presumably that percentage has increased since [Indiana s photo ID law] was enacted and will continue to increase in the future. 553 U.S. at n.6. The evidence in this case is even more unfavorable to plaintiffs. 9 Id.; see also Tr. 1496: :17. 5

8 Case 3:15-cv HEH-RCY Document 214 Filed 04/06/16 Page 8 of 18 PageID# 5668 Every one of the aggrieved voters who testified against the 2013 law admitted they actually possessed the requisite ID or could have easily obtained the free ID allowing their ballot to be counted. Furthermore, the extensive efforts by Virginia election officials to educate voters about the ID requirements and provide free ID support the Supreme Court s conclusion that persons lacking a required ID will decrease with each successive election. See Defs Post-trial Br., D.I. 212, 3(D), pp Again, every person plaintiffs called to testify admitted they now possess the ID necessary to cast a regular ballot in the 2016 election. C. Virginia s 2013 voter ID law does not impermissibly burden any Virginia voter. Plaintiffs offer an adjective-ridden post-trial brief describing Virginia s 2013 law as creating a profound burden, a severe burden or a heavy burden. But the burden plaintiffs claim the law imposes is that a person must travel to either a DMV service center or a registrar s office to obtain an ID. Plfs Br. at Plaintiffs claim this task may take an hour and some voters may have to use public transportation to travel to the registrar s office. Id. at 3-4. Aggrieved voters testified the 2013 law inconvenienced them when they forgot their ID and had to cast a provisional ballot that would later be counted if they submitted a copy of their ID Plaintiffs cite to alleged inconveniencies in obtaining a DMV-issued ID. Plfs Br. at 3-5. This is a red herring. Virginia voters need not incur the fees, produce any documentation, or even travel to the DMV to obtain a valid ID. Per statute and regulation, neither a fee nor documentation is required to obtain a voter ID from the registrars office. 1VAC ; Va. Code Moreover, regardless of the voter ID requirement, Cotten, Okiakpe, and Hilt all drove in Virginia, and thus, had an obligation to obtain a Virginia drivers license within sixty days of establishing residency. See Tr. 49:1-4 (Okiakpe); 69:4-5 (Cotten); 128:8-15 (Hilt); Va. Code See, e.g., Tr. 113:12-13, 115:9-11, 115:23-25, 116:1-5 (Lamb); 124:20-125:12, 126:16-127:1, 128:3-15, 129:9-11, 129:23-130:1 (Hilt); 159:9-18, 160:7-16, 161:11-21, 162:15-17 (Etheredge); 420:13-25, 422:23-423:18, 423:24-424:2 (Barranca). 6

9 Case 3:15-cv HEH-RCY Document 214 Filed 04/06/16 Page 9 of 18 PageID# 5669 The Supreme Court explained that such inconveniences do not raise any question about the constitutionality of a voter ID law: A photo identification requirement imposes some burdens on voters that other methods of identification do not share. For example, a voter may lose his photo identification, may have his wallet stolen on the way to the polls, or may not resemble the photo in the identification because he recently grew a beard. Burdens of that sort arising from life's vagaries, however, are neither so serious nor so frequent as to raise any question about the constitutionality of [a photo ID law]; the availability of the right to cast a provisional ballot provides an adequate remedy for problems of that character. For most voters who need them, the inconvenience of making a trip to the BMV, gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting. The severity of that burden is, of course, mitigated by the fact that, if eligible, voters without photo identification may cast provisional ballots that will ultimately be counted. To do so, however, they must travel to the circuit court clerk's office within 10 days to execute the required affidavit. It is unlikely that such a requirement would pose a constitutional problem unless it is wholly unjustified. And even assuming that the burden may not be justified as to a few voters, that conclusion is by no means sufficient to establish petitioners' right to the relief they seek in this litigation. Crawford, 553 U.S. at , The Supreme Court reached the foregoing holding in response to a similar challenge to Indiana s voter ID law. Indiana is much stricter than Virginia. Indiana requires voters to provide proof of identity such as a birth certificate to obtain a free photo ID. Virginia provides a much more lenient list of acceptable ID than does Indiana. Furthermore, unlike Indiana, Virginia provides free ID not only at DMV offices but also at each of the 133 local registrar offices and all satellite offices as well as mobile units that travel the community providing free photo ID. And Virginia voters can obtain a free ID by providing their name, birthdate, address, and the last four digits of their Social Security number. Plaintiffs never answer the obvious question: if the Supreme Court upheld Indiana s voter ID law, how can this Court find Virginia s more lenient law unconstitutional? 7

10 Case 3:15-cv HEH-RCY Document 214 Filed 04/06/16 Page 10 of 18 PageID# 5670 D. Virginia did not adopt its 2013 voter ID law to deny racial minorities an equal opportunity to participate in Virginia elections. Plaintiffs ask this Court to declare Virginia s 2013 law unconstitutional because past generations of Virginia legislators enacted poll taxes and literacy tests with the intent of denying blacks the opportunity to vote. The post-reconstruction history of formerly-confederate States attempting to disenfranchise blacks is a lamentable and shameful period in our nation s history. 12 But as established by the testimony of Dr. Palazzolo, the racist views of Harry Byrd and Carter Glass and their dominance in Virginia politics is generations past. There is no connection between the racist policies of Carter Glass and Harry Byrd (both Democrats) and the members of the mostly-republican General Assembly that adopted Virginia s voter ID law in See testimony of Dr. Palazzolo, Tr. 1842: :02, 1844:1-5, 1844:06-13, 1844:14-18 ( as a scholar, I tend to look at the conditions that uphold some of the policy and implementation. And I came to the conclusion that the conditions today are very different than they were during that pre-1965 era. ). In Shelby County, Ala. v. Holder, the Supreme Court struck down 4 of the Voting Rights Act because it was based upon an antiquated historical premise. 133 S.Ct. 2612, 2634 (2013) ( in assessing the overall effects of the VRA in 2006, Congress found that [s]ignificant progress has been made in eliminating first generation barriers experienced by minority voters, including increased numbers of registered minority voters, minority voter turnout, and minority representation in Congress, State legislatures, and local elected offices. ). 13 Past discrimination 12 See Tr. 181:8-182:18 (quoting Virginia Democratic Senator Carter Glass and debates on Virginia s constitutional convention.) 13 During oral argument in Shelby County, Chief Justice Roberts questioned the Solicitor General as follows: The Chief Justice: Which State has the greatest disparity in registration between white and African American? 8

11 Case 3:15-cv HEH-RCY Document 214 Filed 04/06/16 Page 11 of 18 PageID# 5671 cannot, in the manner of original sin, condemn governmental action that is not in itself unlawful. North Carolina State Conference of NAACP v. McCrory, 997 F. Supp.2d 322, 349 (M.D.N.C. 2014) (quoting Shelby County, 133 S.Ct. at 2628 (quoting City of Mobil Ala., v. Bolden, 446 U.S. 55, 74 ((1980)) Thus, it is not possible to indict Virginia s 2013 voter ID law with racial attitudes long-dead Virginia politicians held during the pre-civil rights era. Furthermore, modern events demonstrate Virginia has changed and Virginia politics are no longer informed by the Carter Glass era of racial animus. For example, Virginia was the first state to elect an African-American governor when Virginia voters elected Governor Wilder in Tr. 1852:4-13. Finally, the circumstances surrounding the adoption of Virginia s 2013 law demonstrate it was not enacted to achieve a racially discriminatory purpose. For example, Governor McDonnell met with the Virginia Black Caucus when the prior voter ID law was being debated and specifically addressed and considered their concerns and included provisions in the final version of the law addressing these concerns. Tr. 374:2-375:8 (testimony of Del. McClellan). Further the implementation of the 2013 voter ID law demonstrated extraordinary effort by Virginia election The Solicitor General: I do not know that. The Chief Justice: Massachusetts. Third is Mississippi, where again African American registration rate is higher than the white registration rate. Argument transcript available at: < 14 See also, McCleskey v. Kemp, 481 U.S. 279, 298, n.20 (1987) (holding that unless historical evidence is reasonably contemporaneous with the challenged decision, it has little probative value ); Veasey v. Abbott, 796 F.3d 487, 500 (5th Cir. 2015) ( We recognize that history provides context and that historical discrimination (for example, in education) can have effects for many years. But, given the case law we describe above and the specific issue in this case, we conclude that the district court s heavy reliance on long-ago history was error. ); Parson v. Alcorn, 3:16CV13, 2016 WL , at *5 (E.D. Va. Jan. 15, 2016) (holding that sweeping allegations about historical discrimination African Americans have experienced when voting in Virginia do not provide an evidentiary basis as to any current discriminatory practices ). 15 Affirmed in part, reversed in part by League of Women Voters of North Carolina v. North Carolina, 769 F.3d 224 (4th Cir. 2014). 9

12 Case 3:15-cv HEH-RCY Document 214 Filed 04/06/16 Page 12 of 18 PageID# 5672 officials to both inform voters in minority communities of the ID requirements and to provide free ID to any eligible voter lacking an ID. See Defs Post-trial Br., D.I. 212, 3(D), pp Plaintiffs bear a heavy burden raising a facial challenge to Virginia s 2013 law. Facial invalidation is, manifestly, strong medicine that has been employed by the Court sparingly and only as a last resort. Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 580 (1998) (citing Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973); see also FW/PBS, Inc. v. Dallas, 493 U.S. 215, 223, (1990) (noting that facial challenges to legislation are generally disfavored )). As the Court noted in United States v. Salerno, 481 U.S. 739, 745 (1987), a facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid. Should plaintiffs challenge to Virginia s 2013 law be considered an as-applied challenge the question becomes, as applied to whom? The two individual named plaintiffs admit they have not been denied opportunity to participate in Virginia elections by reason of the 2013 law indeed Lee and Aida both possess the requisite ID and have cast normal ballots in past elections. Tr. 731:19-21 (Aida); 443:6-14 (Lee). The aggrieved voters who plaintiffs called to testify were likewise not denied opportunity to participate in Virginia elections. Every person who testified in this case possesses a form of ID necessary to cast a normal ballot in the 2016 presidential election. See Defs Post-trial Br., D.I. 212, 4(A), pp , and Table 2. As noted in our pre-trial brief, the Democratic Party of Virginia lacks standing. The Democratic Party: (a) is not a traditional membership organization; (b) does not possess any of 10

13 Case 3:15-cv HEH-RCY Document 214 Filed 04/06/16 Page 13 of 18 PageID# 5673 the indicia of a traditional membership organization; and, therefore, (c) does not have standing to bring claims on behalf of its alleged membership. 16 E. Virginia s 2013 voter ID law does not violate Section 2 of the Voting Rights Act. Section 2 of the Voting Rights Act does not invalidate racially-neutral election administration rules of general applicability. Section 2 is an equal-treatment requirement, not an equal-outcome command. See Frank, 768 F.3d at 754 ( it would be implausible to read 2 as sweeping away almost all registration and voting rules. It is better to understand 2(b) as an equaltreatment requirement (which is how it reads) than as an equal-outcome command. ). Most Section 2 litigation involves vote dilution challenges to redistricting plans. 17 Such is not the case here. This is a vote denial claim in which plaintiffs allege Virginia s 2013 law denies (or impermissibly burdens) Virginians opportunity to participate in the political process. To prevail, the plaintiffs must prove the challenged standard, practice or procedure [the 2013 law] imposes a discriminatory burden on members of a protected class, meaning that members of the protected class have less opportunity that other members of the electorate to participate in the political process and to elect representatives of their choice. Frank, 768 F.3d at (quoting Husted v. NAACP, 768 F.3d 534, 553 (6th Cir. 2014). Plaintiffs challenge Virginia s requirement that every person provide one of the many designated forms of ID when voting. If any individual does not possess the requisite form of ID, they may obtain one for free. And Virginia provides any eligible voter an ID without any fee and 16 Our prior briefing more fully discusses plaintiffs lack of standing. See Defs Proposed Findings of Fact and Conclusions of Law, D.I. 172, 1; Defs Memorandum in Support of their Motion to Dismiss, D.I. 49, 2; see generally Defs Motion for Partial Summary Judgment, D.I See Defs Memorandum in Support of their Motion to Dismiss, D.I. 49, I(A)(2), pp

14 Case 3:15-cv HEH-RCY Document 214 Filed 04/06/16 Page 14 of 18 PageID# 5674 without any requirement the person provide supporting documents such as a birth certificate. As such, every Virginia resident no matter their race or ethnicity has equal opportunity to obtain a qualifying photo ID and participate in Virginia elections. Virginia s 2013 law must be evaluated under the totality of circumstances considering all of Virginia s election administration procedures. Section 2(b) provides, A violation of subsection (a) is established if, based upon the totality of circumstances, it is shown that the political process leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process. Frank, 768 F.3d at 753 (emphasis supplied). In Frank the Seventh Circuit directed, we must look not at [the voter ID law] in isolation but to the entire voting and registration system. Id. The totality of circumstances of Virginia s entire voting and registration system includes not only the availability of mail-in absentee voting (which does not require any photo ID) but also the 2013 law s provision of a free photo ID available without any cost and without any supporting identification documents. The totality of circumstances also requires we consider the ability of a person without any ID to still cast a provisional ballot and to have the provisional ballot counted by submitting a copy of the requisite ID by mail, fax, or in-person before Friday following the election. Plaintiffs provided no credible evidence that Virginia s 2013 law has a disparate impact upon minorities opportunity to participate in Virginia elections. But, even assuming the 2013 law had a disparate impact upon minorities, that fact is not sufficient to invalidate the 2013 law. 12

15 Case 3:15-cv HEH-RCY Document 214 Filed 04/06/16 Page 15 of 18 PageID# 5675 The Seventh Circuit explained, Section 2(a) forbids discrimination by race or color but does not require states to overcome societal effects of private discrimination that affect the income or wealth of potential voters. Frank, 768 F.3d at 753. Plaintiffs expert Lichtman testified that the 2013 law s requirement of an ID was not itself a disparate effect upon minorities. Rather, Lichtman testified that the disparate effect (assuming such a disparate effect even existed) was due to socioeconomic factors such as fewer minorities owning cars and, thus, fewer minorities possess DMV-issued driver licenses. Tr. 1148: Plaintiffs acknowledge their theory of racial discrimination is premised upon significant racial disparities in socioeconomic indicators such as employment, income, education levels, health, vehicle ownership, and ID possession. Plfs Br., D.I. 211, p. 31. This is an admission that, to the extent the 2013 law s ID requirements have any disparate impact, the impact is not due to the law 2013 voter ID per se, but is, at most, due to socioeconomic factors (such as vehicle ownership) having nothing to do with the 2013 law. Finally, plaintiffs provide no evidence the 2013 law actually suppresses or reduces minority participation in Virginia elections. Indeed, to the contrary, plaintiffs expert Minnite testified that her study with co-author Erickson found it was not possible to find any correlation between voter ID laws and voter turnout. DX ( the existing science regarding vote suppression [is] incomplete and inconclusive ). A similar study by Bullock and Hood found Georgia s stricter voter ID law did not result in any reduction in minority participation. Tr. 1941: :17, 2009:8-16. F. Plaintiffs theory that the 2013 voter ID law was motivated by partisan interest does not, even if true, invalidate the law. Plaintiffs claim Virginia s 2013 photo ID law was enacted by Republican members of the General Assembly to gain a partisan advantage through the disproportionate suppression of the 13

16 Case 3:15-cv HEH-RCY Document 214 Filed 04/06/16 Page 16 of 18 PageID# 5676 votes of core Democratic constituencies, including African-Americans, Latinos, and young voters. Plfs Br., D.I. 211, p. 32. Plaintiffs present no evidence supporting their contention the 2013 law was intended to gain a partisan advantage for Republicans. The 2013 law was passed with bi-partisan support. Tr. 1615:8-13 (testimony of Donald Palmer). And the legislative record demonstrates the 2013 law was enacted to accomplish a number of non-partisan non-racial objectives, including restoring confidence in Virginia s election administration, eliminating confusion with regard to HAVA ID compliance, and prevention of voter fraud. The voter ID law was likewise supported by majorities of white, black, Republican, and Democrat voters. See DX278; Tr. 1922: :7, 15-23; DX277; Tr. 1924:7-10, 1925:5-17, 1926:1-19. But, even if we assume the General Assembly intended to gain a partisan advantage for Republicans, that supposition is not a basis upon which this Court may invalidate Virginia s law. The Supreme Court explained, if a nondiscriminatory law is supported by valid neutral justifications, those justifications should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators. The state interests identified as justifications for [the voter ID law] are both neutral and sufficiently strong to require us to reject petitioners' facial attack on the statute. The application of the statute to the vast majority of Indiana voters is amply justified by the valid interest in protecting the integrity and reliability of the electoral process. Crawford, 553 U.S. at 204. In our earlier briefing we discuss the Supreme Court s holding that partisan gerrymandering claims such as the plaintiffs make here are not justiciable. See Defs Reply in Support of their Motion to Dismiss, D.I. 66, 2, pp In Crawford the district court observed, This litigation is the result of a partisan legislative disagreement that has spilled out of the state house into the courts. Indiana Democratic Party v. Rokita, 458 F. Supp.2d 775, 783 (S.D. Ind. 2006). Plaintiffs challenge here is even less meritorious 14

17 Case 3:15-cv HEH-RCY Document 214 Filed 04/06/16 Page 17 of 18 PageID# 5677 than those brought and rejected in Crawford and Frank. As we explain above Virginia s voter ID requirement is even more lenient than these other states. And, being more lenient and not requiring a birth certificate to obtain a free ID, Virginia s 2013 law is one Justice Breyer would have supported even though dissenting in Crawford. 18 CONCLUSION Virginia justified its 2013 voter ID law for reasons that are both neutral and sufficiently strong to require us to reject [plaintiffs ] facial attack on the statute. Further, the application of this racially-neutral and non-partisan statute which applies uniformly to every Virginia voter is amply justified by valid interest in protecting the integrity and reliability of the electoral process. Crawford 553 U.S. at 203. Accordingly, this Court should hold plaintiffs challenge to Virginia s 2013 voter ID law is without merit. Respectfully submitted, ARENT FOX, LLP Mark F. (Thor) Hearne, II (admitted pro hac vice) Stephen S. Davis (admitted pro hac vice) 112 S. Hanley Road, Suite 200 Clayton, MO Tel: Fax: thornet@ix.netcom.com stephen.davis@arentfox.com 18 In Crawford, Justice Breyer stated that the Carter-Baker Commission s: findings are highly relevant to both legislative and judicial determinations of the reasonableness of a photo ID requirement; to the related necessity of ensuring that all those eligible to vote possess the requisite IDs; and to the presence of alternative methods of ensuring that possession, methods that are superior to those that Indiana s statute sets forth. 553 U.S. at 241 (Breyer, J., dissenting) (emphasis added). 15

18 Case 3:15-cv HEH-RCY Document 214 Filed 04/06/16 Page 18 of 18 PageID# 5678 Dana J. Finberg (VSB No ) Sara T. Schneider (admitted pro hac vice) 55 Second Street, 21st Floor San Francisco, CA Tel: Kirsten Hart (admitted pro hac vice) 555 West Fifth Street, 48th Floor Los Angeles, CA Tel: Attorneys for Defendants CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was served via the Court s CM/ECF system on April 6, 2016, to the following: Marc E. Elias Bruce V. Spiva Elisabeth C. Frost Aria C. Branch Perkins Coie LLP th Street, NW, Suite 600 Washington, DC Joshua L. Kaul Perkins Coie LLP 1 East Main Street, Suite 201 Madison, WI /s/ Dana J. Finberg DANA J. FINBERG Arent Fox LLP Counsel for Defendants 16