Case: 20-40428 Document: 00516002643 Page: 1 Date Filed: 09/03/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 3, 2021
No. 20-40428 Lyle W. Cayce
Clerk
Marc Veasey; Jane Hamilton; Sergio DeLeon; Floyd
Carrier; Anna Burns; Michael Montez; Penny Pope;
Oscar Ortiz; Koby Ozias; League of United Latin
American Citizens; John Mellor-Crumley; Gordon
Benjamin; Ken Gandy; Evelyn Brickner,
Plaintiffs—Appellees,
versus
Greg Abbott, in his Official Capacity as Governor of Texas; State of
Texas; Ruth R. Hughs, in her Official Capacity as Texas Secretary of
State,
Defendants—Appellants,
__________________________________________________
United States of America,
Plaintiff—Appellee,
Texas League of Young Voters Education Fund, Imani
Clark,
Intervenors Plaintiffs—Appellees,
versus
State of Texas,
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No. 20-40428
Defendant—Appellant,
__________________________________________________
Texas State Conference of NAACP Branches; Mexican
American Legislative Caucus, Texas House of
Representatives,
Plaintiffs—Appellees,
versus
Greg Abbott, in his Official Capacity as Governor of Texas; Ruth R.
Hughs, in her Official Capacity as Texas Secretary of State; State of
Texas,
Defendants—Appellants,
__________________________________________________
Eulalio Mendez, Jr.; Lionel Estrada; Estela Garcia
Espinosa; Maximina Martinez Lara; La Union Del
Pueblo Entero, Incorporated,
Plaintiffs—Appellees,
versus
State of Texas; Ruth R. Hughs, in her Official Capacity as Texas
Secretary of State,
Defendants—Appellants.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:13-CV-193
USDC No. 2:13-CV-263
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No. 20-40428
USDC No. 2:13-CV-291
USDC No. 2:13-CV-348
Before King, Dennis, and Ho, Circuit Judges.
James C. Ho, Circuit Judge:
By a sharply divided vote and over multiple spirited dissents, our en
banc court held unlawful a Texas statute requiring voters to present photo ID
in order to vote. See Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016) (en banc).
We are of course bound by that decision. The only question in this appeal is
whether Plaintiffs are “prevailing parties” and thereby entitled to recover
attorneys’ fees under 42 U.S.C. § 1988(b) and 52 U.S.C. § 10310(e).
It seems obvious that they are. Plaintiffs successfully challenged the
Texas photo ID requirement before our en banc court, and used that victory
to secure a court order permanently preventing its enforcement during the
elections in 2016 and 2017. That court order substituted the photo ID
requirement with a mere option—which of course defeats the whole purpose
of a mandate. And those elections are now well in the past. The State of
Texas obviously cannot go back in time and re-run the 2016 and 2017
elections under a photo ID requirement. Cf. Stringer v. Whitley, 942 F.3d 715,
726 (5th Cir. 2019) (Ho, J., concurring) (“Plaintiffs have indeed endured an
injury in the past. They were unable to exercise their right to vote in past
election cycles. And it is a right they will never be able to recover.”).
Not surprisingly, then, the State readily admits that any suggestion
that Plaintiffs did not prevail in these proceedings would be
“counterintuitive,” to say the least. We agree and accordingly affirm.
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I.
Texas enacted Senate Bill 14 (SB 14) in 2011 and began enforcing it in
2013. Act of May 16, 2011 82nd Leg., R.S., ch. 123, 2011 Tex. Gen. Laws.
619. SB 14 required voters in Texas to present one of six forms of
government-issued photo identification at the polls in order to vote. See
Veasey, 830 F.3d at 225 (listing the acceptable forms of photo identification).
Plaintiffs sued to enjoin the enforcement of SB 14, alleging, inter alia,
that the photo identification requirement violated the Fourteenth and
Fifteenth Amendments of the Constitution and § 2 of the Voting Rights Act.
The district court concluded that SB 14 had an impermissible discriminatory
effect on certain minority voters in Texas and permanently enjoined the
enforcement of SB 14 accordingly. See Veasey v. Perry, 71 F. Supp. 3d 627,
633, 707–08 (S.D. Tex. 2014).
This court sitting en banc affirmed the district court’s discriminatory
effect finding, while reversing and remanding on other aspects of the district
court’s decision, such as the finding that SB 14 was enacted with a
discriminatory purpose. Veasey, 830 F.3d at 264, 272. We directed the
district court to enter an “interim remedy for SB 14’s discriminatory effect
that disrupts voter identification rules for the 2016 election season as little as
possible, yet eliminates the Section 2 discriminatory effect violation.” Id. at
272. The court’s “primary concern” was to “ensure that SB 14’s
discriminatory effect [was] ameliorated as Section 2 requires in time for the
November 2016 election.” Id. at 242–43.
On remand in August 2016, the district court entered an order, agreed
to by all parties, for an interim remedy for that November’s elections. Under
the order,
voters who lacked an SB 14 ID could cast a regular ballot upon
completing a Declaration of Reasonable Impediment (“DRI”)
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and presenting a specified form of identification. The seven
possible impediments were: (1) lack of transportation, (2) lack
of documents necessary to obtain acceptable ID, (3) work
schedule, (4) lost or stolen ID, (5) disability or illness, (6)
family responsibility, and (7) ID applied for but not yet
received.
The DRI also offered an “other” box, allowing voters to write
anything in the blank space to be able to vote. The declaration
further provided that the reasonableness of the voter’s
impediment or difficulty could not be questioned by election
officials, and the voter signed the declaration “upon penalty of
perjury.” The specified forms of ID a voter was required to
present in order to take advantage of the reasonable
impediment declaration were the same documents required to
vote under pre-SB 14 law: a valid voter-registration certificate,
a certified birth certificate, a copy or original of a current utility
bill, bank statement, government check, paycheck, or other
government document showing the voter’s name and address.
Veasey v. Abbott, 888 F.3d 792, 796 (5th Cir. 2018). The order also expanded
the range of acceptable photo IDs from those effective within sixty days of
the election to those effective within four years of the election. The interim
remedy would govern the November 2016 general election and remain in
effect pending further order of the district court.
After the district court on remand again concluded that SB 14 was
enacted with a discriminatory purpose, Veasey v. Abbott, 249 F. Supp. 3d 868,
876 (S.D. Tex. 2017), a motions panel of this court stayed the district court’s
order pending appeal and instructed that the “Interim Order and its
reasonable impediment procedures will remain in effect for elections in
2017.” Veasey v. Abbott, 870 F.3d 387, 391–92 (5th Cir. 2017).
Then, in May 2017, Texas enacted Senate Bill 5 (SB 5) “as a legislative
remedy to cure and replace SB 14.” Veasey, 888 F.3d at 797.
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Texas modeled SB 5 after the interim order. In particular, it codified
the reasonable impediment procedure for voters who could not obtain the
photo identification required under SB 14. Id. SB 5 also “(1) . . . extend[ed]
the period within which an expired form of identification [would] be accepted
for voting, (2) . . . expand[ed] the list of acceptable forms of identification, (3)
. . . require[d] the implementation of mobile locations for obtaining election
identification certificates, and (4) . . . remove[d] the ‘other’ option offered in
the interim remedy.” Id.
Following the enactment of SB 5, Defendants moved for
reconsideration of the district court’s discriminatory purpose finding. The
district court denied the motion, granted Plaintiffs declaratory relief that SB
14 violates § 2 of the VRA and the Fourteenth and Fifteenth Amendments,
permanently enjoined enforcement of SB 14 and SB 5, vacated the interim
remedy, and reinstated the pre-SB 14 law that did not require voters to
present photo identification at the polls. Veasey v. Abbott, 265 F. Supp. 3d
684, 698, 700 (S.D. Tex. 2017). Defendants appealed.
We reversed and rendered the district court’s permanent injunction
and order for potential further relief. Veasey, 888 F.3d at 804. We observed
that SB 5 “affords a generous, tailored remedy for the actual violations
found,” id. at 801, “was designed to remedy every defect claimed” by the
Plaintiffs, id. at 802, and “constitutes an effective remedy for the only
deficiencies testified to in SB 14,” id. at 804. We added that SB 5 “essentially
mirrors an agreed interim order for the same purpose” and that “the State
has acted promptly following this court’s mandate.” Id. Plaintiffs neither
sought en banc review nor petitioned for certiorari.
On September 17, 2018, the district court entered a final judgment
stating that, “[f]or the reasons set forth by the Fifth Circuit . . . , the Court
enters final judgment dismissing this case.” Neither side filed an appeal.
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Plaintiffs moved for attorneys’ fees under 42 U.S.C. § 1988(b) and
52 U.S.C. § 10310(e), seeking $8,856,376.71. They argued that they qualified
as prevailing parties because they “successfully obtained a finding of liability
in their favor that led to the . . . interim remedial order”; the “interim relief
was implemented during the 2016 general election and subsequent
elections”; they “successfully opposed Defendants’ petition for certiorari”;
and “the interim relief remained in place until [Texas] implemented an ID
law . . . that incorporated aspects of the interim remedial relief.”
The district court granted the motion and ordered Defendants to pay
Plaintiffs $6,790,333.31 in attorneys’ fees and expenses. It held that Plaintiffs
obtained judicially sanctioned relief in the form of the interim order that
followed this court’s affirmance of the district court’s discriminatory effect
ruling, which was never disturbed. It concluded that “Plaintiffs have met all
of the requirements [for prevailing-party status] on the basis of the judicial
issuance of the [interim order] in their favor.”
Defendants timely appealed the district court’s conclusion that
Plaintiffs are prevailing parties. They do not challenge the reasonableness of
the amount awarded by the district court.
A district court’s award of attorneys’ fees is reviewed for abuse of
discretion. Petteway v. Henry, 738 F.3d 132, 137 (5th Cir. 2013). Whether a
party is a “prevailing party” for the purposes of attorneys’ fees is a legal
question that is reviewed de novo. Id.
II.
Under the “American Rule,” litigants pay for their own attorneys’
fees, and the prevailing party is not entitled to collect attorneys’ fees from
the loser. Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247
(1975). However, Congress has created statutory exceptions to this general
rule. One such exception is 42 U.S.C. § 1988(b), which provides that “the
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court, in its discretion, may allow the prevailing party, other than the United
States, a reasonable attorney’s fee as part of the costs” for private actions
brought under 42 U.S.C. § 1983 and other civil rights statutes. Similarly,
52 U.S.C. § 10310(e) provides that “[i]n any action or proceeding to enforce
the voting guarantees of the fourteenth and fifteenth amendment, the court,
in its discretion, may allow the prevailing party, other than the United States,
a reasonable attorney’s fee.” These provisions are “identically construed”
because they share similar “language and purpose.” Davis v. Abbott,
781 F.3d 207, 213 n.6 (5th Cir. 2015).
Plaintiffs contend that they are “prevailing parties” entitled to an
award of attorneys’ fees under these statutes. They argue that each of the
following events alone is enough to confer status as a prevailing party: the
district court’s interim order relieving Plaintiffs from complying with SB 14
during the November 2016 elections, the district court’s declaratory
judgment as to the § 2 violation, and this court’s approval of SB 5 as a
legislative remedy. See Veasey, 888 F.3d at 804 (noting that “SB 5 constitutes
an effective remedy for the only deficiencies testified to in SB 14”). The
district court determined that Plaintiffs are prevailing parties based on the
interim order alone. We agree and accordingly need not examine Plaintiffs’
alternative theories of relief.
A.
The fee-shifting statutes do not define “prevailing party.” But the
Supreme Court set forth the requirements for earning status as a prevailing
party in Buckhannon Board and Care Home, Inc. v. West Virginia Department
of Health and Human Resources, 532 U.S. 598, 604 (2001). There the Court
held that a prevailing party “must achieve some judicially sanctioned relief
that either creates or materially alters a legal relationship between the
parties.” Petteway, 738 F.3d at 137 (citing Buckhannon, 532 U.S. at 604).
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Following Buckhannon, we established three requirements that must
be satisfied for a plaintiff to demonstrate prevailing party status: “(1) the
plaintiff must achieve judicially-sanctioned relief, (2) the relief must
materially alter the legal relationship between the parties, and (3) the relief
must modify the defendant’s behavior in a way that directly benefits the
plaintiff at the time the relief is entered.” Id. (citing Dearmore v. City of
Garland, 519 F.3d 517, 521 (5th Cir. 2008)). A prevailing party is “one who
has been awarded . . . at least some relief on the merits,” and there must be
“judicial imprimatur on the change” in the legal relationship between the
parties. Buckhannon, 532 U.S. at 603, 605.
A plaintiff can satisfy these three requirements without “receiv[ing] a
final judgment in its favor,” as long as the plaintiff’s “success on a claim is
[not] purely technical or de minimis.” Petteway, 738 F.3d at 137. And “[a]
plaintiff’s success . . . need not address the central claim of the case; instead,
a party may attain prevailing status by succeeding on ‘any significant issue in
litigation which achieves some of the benefit the parties sought in bringing
suit.’” Id. (quoting Tex. State Tchrs. Ass’n v. Garland Indep. Sch. Dist., 489
U.S. 782, 789 (1989)). The relief need not be awarded at the conclusion of
the case—a prevailing party is simply “one who has succeeded on any
significant claim affording it some of the relief sought, either pendente lite or
at the conclusion of the litigation.” Davis v. Abbott, 781 F.3d 207, 214 (5th
Cir. 2015) (quoting Tex. State Tchrs. Ass’n, 489 U.S. at 791).
The interim order governing the 2016 and 2017 election cycles
demonstrably satisfies this three-part test. Indeed, the State of Texas
acknowledged during oral argument that Plaintiffs have satisfied Buckhannon.
We agree.
First, the order is indisputably a form of judicially sanctioned relief.
The parties ultimately agreed to the order, but only after the en banc court
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affirmed the district court’s finding of discriminatory effect, over the State’s
vigorous opposition and multiple dissents. See Veasey, 830 F.3d at 272; id. at
303–17 (Jones, J., concurring in part and dissenting in part) (dissenting from
the en banc majority’s affirmance of the district court’s discriminatory effect
finding); id. at 326–28 (Elrod, J., concurring in part and dissenting in part)
(same). The order enjoined enforcement of the Texas photo ID requirement
during the November 2016 elections. And as Defendants acknowledged at
oral argument, they “[ha]ve never disputed that it was a decision on the
merits.” See Buckhannon, 532 U.S. at 603 (a prevailing party is “one who has
been awarded . . . at least some relief on the merits”).
Second, the order materially altered the legal relationship between the
parties—the “touchstone of the prevailing party inquiry.” Davis, 781 F.3d
at 214 (quoting Sole v. Wyner, 551 U.S. 74, 82 (2007)). After all, without the
order, Plaintiffs seeking to vote in the November 2016 elections would have
been required to present photo ID under SB 14. Defendants’ counsel
admitted as much at oral argument, stating that “we would have enforced
SB 14 but for the interim relief.” Because the order relieved Plaintiffs from
the burdens of SB 14 for the November 2016 elections, it materially altered
the relationship between the parties.
Third, the order benefited Plaintiffs in a manner that was neither
“purely technical” nor “de minimis.” Petteway, 738 F.3d at 137. Defendants
do not dispute that the order meaningfully altered the force and effect of
Texas law. Nor can Defendants dispute that this change benefitted Plaintiffs
during the November 2016 elections, as well as additional elections in 2017.
Under SB 14, voters in Texas were required to present one of six forms of
government-issued photo identification at the polls to vote. See Veasey,
830 F.3d at 225 (listing the acceptable forms of photo identification). By
contrast, the interim order permitted voters to cast their ballots without
complying with SB 14—they could simply complete a Declaration of
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Reasonable Impediment and present identification in accordance with
preexisting Texas law. Veasey, 888 F.3d at 796. Voters could either choose
from among seven possible enumerated impediments, or write in their own
explanation—and election officials were bound to accept the voter’s
declaration, no questions asked. Id.
Accordingly, we agree with the district court that the interim order
alone is enough to confer prevailing party status on Plaintiffs. The interim
order was judicially sanctioned relief, ordered by the district court at the
directive of this court, that materially altered the legal relationship between
the parties and directly benefited Plaintiffs during the November 2016
elections. That cannot be undone—the November 2016 elections have come
and gone—and the merits ruling on Plaintiffs’ discriminatory effects claim
has not been disturbed. Cf. Stringer, 942 F.3d at 726 (Ho, J., concurring).
The interim order prohibited the State from enforcing SB 14 and permitted
Plaintiffs to vote without the photo identification required by that law.
Plaintiffs are accordingly prevailing parties under Buckhannon.
B.
Defendants contend that, although Plaintiffs satisfy the three-part test
under Buckhannon, their claim is ultimately foreclosed by Sole v. Wyner, 551
U.S. 74 (2007). In Sole, the Court considered whether “[p]revailing party
status . . . attend[s] achievement of a preliminary injunction that is reversed,
dissolved, or otherwise undone by the final decision in the same case.” Id. at
83. The Court concluded that it does not. It held that “a final decision on
the merits denying permanent injunctive relief ordinarily determines who
prevails in the action for purposes of [42 U.S.C.] § 1988(b).” Id. at 78, 83.
Sole involved the display of Wyner’s artwork—nude individuals
assembled into a peace sign—on a Florida state beach. That display ran afoul
of the state’s “Bathing Suit Rule.” Id. at 78. But Wyner claimed that the
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rule violated the First Amendment. She won a preliminary injunction that
permitted her display behind a barrier that would shield other beachgoers
from viewing it. Id. at 79–80. But the court ultimately denied permanent
injunctive relief and granted summary judgment to the state. Id. at 80.
Wyner sought attorneys’ fees on the ground that she qualified as a
prevailing party because she obtained a preliminary injunction. Id. at 81. But
the Supreme Court rejected her claim. The Court reasoned that “the
preliminary injunction hearing was necessarily hasty and abbreviated,” and
“the provisional relief granted terminated only the parties’ opening
engagement.” Id. at 84. “Of controlling importance to [the] decision, the
eventual ruling on the merits for defendants . . . superseded the preliminary
ruling. Wyner’s temporary success rested on a premise the District Court
ultimately rejected.” Id. at 84–85 (emphasis added). “The final decision . . .
rejected the same claim [Wyner] advanced in her preliminary injunction
motion,” and Florida’s Bathing Suit Rule “remained intact” at the end of
the litigation, resulting in “no enduring ‘chang[e] [in] the legal
relationship’” between the parties. Id. at 86 (quoting Tex. State Tchrs. Ass’n,
489 U.S. at 792) (emphasis added and remaining alterations in original).
Sole is distinguishable from this case for multiple reasons. Unlike the
preliminary relief in Sole, which was granted after a “hasty and abbreviated”
hearing, the order here was granted after a nine-day trial, a ruling on the
merits, and an en banc decision affirming Plaintiffs’ win on their
discriminatory effects claim. 551 U.S. at 84. Whereas the preliminary relief
in Sole was based on the plaintiff’s “likelihood of success on the merits,”
Wyner v. Struhs, 254 F. Supp. 2d 1297, 1303 (S.D. Fla. 2003) (emphasis
added), the district court here ordered relief based on Plaintiffs’ actual
success on the merits.
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And most notably, in Sole, the denial of the plaintiff’s request for a
permanent injunction “superseded the preliminary ruling,” and the
plaintiff’s “temporary success rested on a premise the District Court
ultimately rejected.” 551 U.S. at 84–85 (emphasis added). As the Court there
emphasized: “The final decision [denying permanent injunctive relief]
rejected the same claim [plaintiff] advanced in her preliminary injunction
motion . . . . At the end of the fray, [the challenged law] remained intact.” Id.
at 86. Here, by contrast, the premise of the interim order—Plaintiffs’
discriminatory effect claim—was never rejected by either the district court or
this court. SB 14 was not implemented during the November 2016 elections,
and it has since been discarded.
Defendants’ reliance on Sole is unavailing.
C.
Finally, Defendants argue that, because the district court’s final
judgment dismissed Plaintiffs’ claims and awarded no additional relief, any
claim for attorneys’ fees fails under Dearmore v. City of Garland, 519 F.3d 517
(5th Cir. 2008).
In Dearmore, we examined whether a plaintiff is a prevailing party
when it wins a preliminary injunction based on a finding of probable success
on the merits, and the defendant subsequently moots the case in direct
response to the preliminary injunction. Id. at 521. We set out a three-prong
test for determining prevailing party status “[u]nder these facts”: “the
plaintiff (1) must win a preliminary injunction, (2) based on an unambiguous
indication of probable success on the merits of the plaintiff’s claims as
opposed to a mere balancing of the equities in favor of the plaintiffs, (3) that
causes the defendant to moot the action,” thereby preventing the plaintiff
from obtaining final relief on the merits. Id. at 524. Notably, we made clear
that this test is “only applicable in [these] limited factual circumstances . . . .
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[I]t only applies when a plaintiff obtains a preliminary injunction based on an
unambiguous indication of probable success on the merits, which causes the
defendant to moot the action.” Id. at 526 n.4. See also Davis, 781 F.3d at 217
(recognizing that this test “is only applicable in [Dearmore’s] limited factual
circumstances”).
Veasey never became moot. Defendants contend that Dearmore
forecloses an award of attorneys’ fees for that reason. But their Dearmore
theory suffers the same defect as their Sole theory: Whereas Dearmore (like
Sole) involved a preliminary injunction based on probable success on the
merits, the district court here ordered relief based on Plaintiffs’ actual
success on the merits. The court effected permanent relief that governed the
administration of the November 2016 elections, following confirmation on
appeal of Plaintiffs’ successful discriminatory effect claim. And that relief
cannot be undone, as Defendants acknowledge—nothing can change the fact
that Plaintiffs were not required to comply with SB 14 during the November
2016 elections. Cf. Stringer, 942 F.3d at 726 (Ho, J., concurring). So
Dearmore does not bar the award of attorneys’ fees challenged here.
***
Far from leaving the courthouse empty-handed, Plaintiffs won on a
“significant issue in [the] litigation which achieve[d] some of the benefit
[they] sought in bringing suit.” Petteway, 738 F.3d at 137 (citation omitted).
The district court therefore correctly held that Plaintiffs are prevailing
parties under Buckhannon and awarded attorneys’ fees. We affirm.
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James C. Ho, Circuit Judge, concurring:
I concur because, under the en banc decision in this case, the plaintiffs
plainly prevailed. I write separately to explain why they shouldn’t have.
The plaintiffs convinced the en banc court to enjoin the Texas photo
ID requirement under Section 2 of the Voting Rights Act. See Veasey v.
Abbott, 830 F.3d 216 (5th Cir. 2016) (en banc) (Veasey I). Under that
decision, Texas voters can completely ignore the photo ID law any time they
want to. Just come up with any excuse, no matter how baseless—and election
officials have no choice but to count your ballot. See Veasey v. Abbott,
888 F.3d 792, 796 (5th Cir. 2018) (Veasey II).
And that’s exactly what happened during the 2016 election cycle.
Voters were able to avoid presenting photo ID simply by asserting such flimsy
explanations as “because I didn’t bring it,” “[I] procrastinated,” “it’s
unconstitutional,” “protest of voter ID law,” “do not agree with law,” “did
not want to ‘pander’ to government requirement,” and “lack of trust that
this law is valid.” See, e.g., id. at 797 n.1.
So the plaintiffs effectively emasculated the Texas photo ID law.
What Texas law once required, the en banc court made merely voluntary.
This was a substantial win for the plaintiffs—and a substantial loss for
the State of Texas. As Texas acknowledged during oral argument, it would
be “counterintuitive” to deny that the plaintiffs were “prevailing parties” in
this suit. So we have no choice but to concur in the award of attorneys’ fees
to the plaintiffs.
That said, I write separately to explain why none of this should have
happened in the first place—why we should have upheld Texas law and put
an end to this litigation five years ago.
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I.
The right to vote is “fundamental to our constitutional democracy.”
Tex. Democratic Party v. Abbott, 961 F.3d 389, 413 (5th Cir. 2020) (Ho, J.,
concurring). But “it means nothing if your vote doesn’t count.” Id. “And
it won’t count if it’s cancelled by a fraudulent vote—as the Supreme Court
has made clear in case after case.” Id. “Every voter’s vote is entitled to be
counted,” and that means that every vote must be “protected from the
diluting effect of illegal ballots.” Gray v. Sanders, 372 U.S. 368, 380 (1963).
“[P]rotection of the integrity of the ballot box is surely a legitimate state
concern.” O’Brien v. Skinner, 414 U.S. 524, 534 (1974) (Marshall, J.,
concurring). There should be “no question about the legitimacy or
importance of the State’s interest in counting only the votes of eligible
voters.” Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 196 (2008)
(plurality op. of Stevens, J.).
Not surprisingly, then, there is broad support for requiring voters to
present photo identification to ensure the integrity of the ballot box—and
broad consensus that the absence of such measures creates the perception, if
not also the reality, of secure and uncorrupted elections. As former President
Jimmy Carter and former Secretary of State James Baker observed,
“Americans are losing confidence in the fairness of elections.” Comm’n
on Fed. Election Reform, Building Confidence in U.S.
Elections ii (2005). “Our Commission on Federal Election Reform was
formed to recommend ways to raise confidence in the electoral system.” Id.
And in the signed letter that opens the Commission’s official report,
President Carter and Secretary Baker specifically “recommend[ed] a photo
ID system for voters” to restore voter confidence in our election system. Id.
See also id. at iii (preface by the executive director) (same). Requiring photo
ID was also one of the “five pillars” recommended in the Carter–Baker
Commission’s official report to “[b]uild[] confidence in U.S. elections”
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“[a]t a time when there is growing skepticism with our electoral system.” Id.
at iv. See also id. at 6 (same).
As the report explained, “election officials . . . need to make sure that
the person arriving at a polling site is the same one that is named on the
registration list.” Id. at 18. “In the old days and in small towns where
everyone knows each other, voters did not need to identify themselves. But
in the United States, where 40 million people move each year, and in urban
areas where some people do not even know the people living in their own
apartment building let alone their precinct, some form of identification is
needed.” Id.
Accordingly, “[t]he electoral system cannot inspire public confidence
if no safeguards exist to deter or detect fraud or to confirm the identity of
voters.” Id. “[W]e believe that citizens should identify themselves as the
correct person on the registration list when they vote.” Id.
Notably, the Commission specifically rejected claims that “the
evidence of multiple voting is thin” or that “ID requirements . . . are ‘a
solution in search of a problem.’” Id.
To begin with, the Commission determined that “there is no doubt”
that voting fraud not only “occur[s]” but “could affect the outcome of a
close election.” Id. “In close or disputed elections, and there are many, a
small amount of fraud could make the margin of difference.” Id.
And for good reason. As Justice Stevens observed, “flagrant examples
of such fraud in other parts of the country have been documented throughout
this Nation’s history by respected historians and journalists.” Crawford, 553
U.S. at 195 (plurality op. of Stevens, J.). He noted various historical examples
that “demonstrate that not only is the risk of voter fraud real but that it could
affect the outcome of a close election.” Id. at 196. See id. at 195–96 & nn. 11–
13 (noting examples in New York, California, Washington, Maryland,
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Wisconsin, Georgia, Illinois, Pennsylvania, Missouri, Florida, and Indiana).
See also John Fund, Stealing Elections: How Voter Fraud
Threatens Our Democracy 87–88, 137–38 (2004) (noting examples
in South Dakota and Louisiana).
Moreover, even setting aside concerns about actual voter fraud, “the
perception of possible fraud contributes to low confidence in the system.”
Building Confidence, supra, at 18. “A good ID system could deter,
detect, or eliminate several potential avenues of fraud—such as multiple
voting or voting by individuals using the identities of others or those who are
deceased—and thus it can enhance confidence.” Id. at 18–19.
The Commission addressed concerns that voter ID requirements
“could disenfranchise eligible voters” or “have an adverse effect on
minorities.” Id. at 19. It concluded that such concerns weigh in favor of
implementing a fair photo ID requirement—not eliminating photo ID
requirements altogether. It observed that “[v]oters in nearly 100
democracies use a photo identification card without fear of infringement of
on their rights.” Id. at 5. See also id. at 20 (“most advanced democracies
have fraud-proof voting or national ID cards, and their democracies remain
strong”); Stealing Elections, supra, at 4–5 (discussing photo ID
requirements in Mexico and many other countries).
After all, photo ID requirements are ubiquitous in our daily lives. You
need a photo ID to travel, to enter public buildings, to cash a check, to make
credit card purchases of everyday goods and services, to consume alcohol,
and to purchase a firearm. Yet we do not accuse merchants of customer
suppression if they insist on photo ID as a condition of using a credit card.
We do not charge airports with traveler suppression when they require photo
ID as a condition of clearing security. We do not claim that bars and
restaurants are racist just because they ask for photo ID to ensure one’s
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eligibility to drink. And we certainly do not criticize our own court security
officials for requiring photo ID to enter the John Minor Wisdom Building.
Nor is there cause to condemn the Carter–Baker Commission for
engaging in voter suppression, just because it would require photo ID as a
condition of voting. As the Commission put it, “[p]hoto IDs currently are
needed to board a plane, enter federal buildings, and cash a check. Voting is
equally important.” Building Confidence, supra, at 18.
Surely no one who believes in democracy would support any measure
that unduly burdens the exercise of the franchise for any citizen. As the
Carter–Baker Commission put it, “[t]he vigor of American democracy rests
on the vote of each citizen. Only when citizens can freely and privately
exercise their right to vote and have their vote recorded correctly can they
hold their leaders accountable.” Id. at 1.
But it is not asking too much of voters to undertake the modest duty
of securing photo ID in order to help ensure the integrity of the ballot box.
Indeed, in any free society, we ask citizens to accept certain modest
obligations to secure our liberties and the effective operation of democratic
governance. We demand that our citizenry be educated. We impose taxes to
support essential government services. We compel citizens to serve on
juries. We require registration with the selective service in case of a military
draft.
Requiring citizens to present photo ID to vote is not an unreasonable
burden. If anything, it is less burdensome than other basic obligations of
citizenship that everyone accepts and no one questions. Indeed, it is not
meaningfully greater than the burden of going to the polls to vote in the first
place. To quote Justice Stevens: “For most voters who need them, the
inconvenience of making a trip to the [Bureau of Motor Vehicles], gathering
the required documents, and posing for a photograph surely does not qualify
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as a substantial burden on the right to vote, or even represent a significant
increase over the usual burdens of voting.” Crawford, 553 U.S. at 198
(plurality op. of Stevens, J.). And even if “we assume” that “a somewhat
heavier burden may be placed on a limited number of persons,” “[t]he
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.” Id. at 199. See also Veasey I, 830 F.3d at 226 (“If a
voter is unable to provide SB 14 ID at the poll, the voter can cast a provisional
ballot”).
So it’s no surprise that the Carter–Baker Commission endorsed photo
ID requirements—or that the Supreme Court quoted the Commission report
extensively in affirming the necessity and validity of photo ID laws against
constitutional challenge. See Crawford, 553 U.S. at 193–94, 197 (plurality op.
of Stevens, J.) (quoting Building Confidence, supra, at 18).
II.
The Commission report also featured prominently when the Seventh
Circuit addressed—and rejected—a challenge to Wisconsin’s photo ID law
under Section 2 of the Voting Rights Act. See Frank v. Walker, 768 F.3d 744,
745 (7th Cir. 2014) (citing Building Confidence, supra, at 18). We
should have followed the Seventh Circuit’s lead and upheld the Texas photo
ID requirement as well.
A.
The Seventh Circuit began its analysis by first acknowledging that the
record evidence in that case “document[ed] a disparate outcome” based on
race. Id. at 753. In Wisconsin, much like in Texas, “white registered voters
are more likely to possess qualifying photo IDs, or the documents necessary
to get them.” Id. at 752. See also Veasey I, 830 F.3d at 264 (endorsing district
court findings that “Texans living in poverty . . . are less likely to possess
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qualified photo ID” and that “a disproportionate number of Texans living in
poverty are African–Americans and Hispanics”).
This evidence is notable, the court acknowledged, because disparate
impact can be actionable under Section 2, even in the absence of clear
evidence of discriminatory intent. As the Supreme Court has stated,
“certain practices and procedures that result in the denial or abridgment of
the right to vote are forbidden even though the absence of proof of
discriminatory intent protects them from constitutional challenge.” Chisom
v. Roemer, 501 U.S. 380, 383–84 (1991). Section 2 “proscribes practices with
discriminatory effect whether or not intentional.” Id. at 406 (Scalia, J.,
dissenting).
But as the Supreme Court has also repeatedly warned, disparate
impact alone cannot be enough to establish liability. To the contrary,
“[s]erious constitutional questions . . . might arise” if “liability were imposed
based solely on a showing of a statistical disparity.” Tex. Dep’t of Hous. &
Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 576 U.S. 519, 540 (2015). See also
Ricci v. DeStefano, 557 U.S. 557, 594–96 (2009) (Scalia, J., concurring)
(same).
After all, “the Fourteenth Amendment guarantees equal laws, not
equal results.” Personnel Adm’r of Massachusetts v. Feeney, 442 U.S. 256, 273
(1979) (describing this principle as the “settled rule” under our
Constitution). And the same is true under the Fifteenth Amendment.
“‘[A]ction by a State that is racially neutral on its face violates the Fifteenth
Amendment only if motivated by a discriminatory purpose.’” Reno v. Bossier
Parish Sch. Bd., 520 U.S. 471, 481 (1997) (quoting City of Mobile v. Bolden, 446
U.S. 55, 62 (1980) (plurality op.)).
So when Congress takes action to enforce the promise of equality of
opportunity guaranteed by the Fourteenth and Fifteenth Amendments, it
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must be careful to enact laws that are “congruent and proportional” to that
promise. City of Boerne v. Flores, 521 U.S. 507, 520 (1997). Indeed, if
disparate impact alone were enough to violate Section 2, that would
“dismantle every state’s voting apparatus.” Frank, 768 F.3d at 754. And
that is precisely the kind of “serious federalism cost[]” that Justice
O’Connor has specifically cautioned courts to avoid in Section 2 cases. Reno
v. Bossier Parish Sch. Bd., 520 U.S. 471, 480 (1997).
Not surprisingly, then, “[s]everal courts of appeal have rejected § 2
challenges based purely on a showing of some relevant statistical disparity
between minorities and whites.” Smith v. Salt River Project Agricultural
Improvement and Power District, 109 F.3d 586, 595 (9th Cir. 1997). “[A] bare
statistical showing of disproportionate impact on a racial minority does not
satisfy the § 2 ‘results’ inquiry.” Gonzalez v. Arizona, 677 F.3d 383, 407 (9th
Cir. 2012) (en banc) (quoting Salt River, 109 F.3d at 595). As the Seventh
Circuit put it, Ҥ 2(a) does not condemn a voting practice just because it has
a disparate effect on minorities.” Frank, 768 F.3d at 753.
B.
So if discriminatory intent is not required—but evidence of disparate
impact is insufficient—then what is the standard that courts should apply in
Section 2 cases, consistent with both Section 2 and the Constitution?
In other contexts, the Supreme Court has noted that disparate impact
theory can help “uncover[] discriminatory intent” and “counteract
unconscious prejudices and disguised animus” or “covert and illicit
stereotyping” that “escape easy classification as disparate treatment.”
Inclusive Cmtys., 576 U.S. at 521, 540. It can serve as “an evidentiary tool . . .
to identify genuine, intentional discrimination—to ‘smoke out[]’ . . .
disparate treatment.” Ricci, 557 U.S. at 595 (2009) (Scalia, J., concurring).
See also Rollerson v. Brazos River Harbor, 6 F.4th 633, 648 (5th Cir. 2021) (Ho,
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J., concurring in part and concurring in the judgment) (disparate impact
theory may operate as “a legal presumption that evidence of racial imbalance
is evidence of racial discrimination—at least until the defendant can prove
otherwise”).
This same logic could presumably apply in Section 2 cases as well.
See, e.g., Chisom, 501 U.S. at 406 (Scalia, J., dissenting) (“This new ‘results’
criterion [under Section 2] provides a powerful, albeit sometimes blunt,
weapon with which to attack even the most subtle forms of discrimination.”);
Hayden v. Pataki, 449 F.3d 305, 333 (2nd Cir. 2006) (Walker, C.J.,
concurring) (Voting Rights Act “can serve to invalidate measures with
disparate racial impact only if there is evidence in the congressional record
that those measures are part of a history and practice of unconstitutional
intentional discrimination”).
This appears to be the approach taken by the en banc majority in our
court. The en banc majority opinion essentially concluded that Texas
policymakers enacted a photo ID requirement to suppress racial minorities,
not to strengthen ballot security. See, e.g., 830 F.3d at 250–65.
But it is not clear how one can condemn the State of Texas for
engaging in voter suppression, without also condemning the Carter–Baker
Commission for the very same thing. The en banc majority is no help—it
does not even mention the Commission, despite its prominence in Supreme
Court and circuit precedent upholding photo ID laws in other states against
legal challenge. See, e.g., Crawford, 553 U.S. at 193–94, 197 (plurality op. of
Stevens, J.) (quoting Building Confidence, supra, at 18); id. at 237–38
(Breyer, J., dissenting) (“Like Justice STEVENS, I give weight to the fact
that a national commission, chaired by former President Jimmy Carter and
former Secretary of State James Baker, studied the issue and recommended
that States should require voter photo IDs.”); id. at 241 (“[the
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Commission’s] findings are highly relevant to both legislative and judicial
determinations of the reasonableness of a photo ID requirement”); Frank,
768 F.3d at 745 (citing Building Confidence, supra, at 18). But the
logic employed by the en banc majority would indicate that the Carter-Baker
Commission’s work is racially discriminatory as well.
The en banc majority condemned Texas for adopting “the strictest
law in the country” because it would have accepted only six forms of photo
ID in order to vote—fewer than in Wisconsin and other states. See 830 F.3d
at 247 n.37, 248 n.38 (cleaned up); see also id. at 225 (describing the six forms
of photo ID permitted under SB 14). Moreover, the en banc majority
repeatedly called out Texas for refusing to expand the number of acceptable
forms of photo ID. It concluded that the State’s unwillingness to enact such
“ameliorative amendments” ultimately supported the finding of a Section 2
violation. See, e.g., id. at 237 (“proponents of SB 14 voted to table numerous
amendments meant to expand the types of accepted IDs”); id. at 261 (“the
Legislature’s response to ameliorative amendments[] demonstrated a lack of
responsiveness to minority needs by elected officials”); id. at 263 (“the
Legislature rejected many ameliorative amendments that would have
brought SB 14 in line with those states’ voter ID laws”).
But the Carter–Baker Commission recommended an even stricter
photo ID requirement than Texas law. It unapologetically advocated for “a
single, uniform ID” to vote. Building Confidence, supra, at iv
(emphasis added). As President Carter and Secretary Baker explained, “we
recommended a standard for the entire country, the Real ID card, the
standardized driver’s licenses mandated by federal law last May. With that
law, a driver’s license can double as a voting card.” Jimmy Carter and James
A. Baker III, Voting Reform Is in the Cards, N.Y. Times (Sept. 23, 2005),
available at https://www.nytimes.com/2005/09/23/opinion/voting-
reform-is-in-the-cards.html. See also Building Confidence, supra, at
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19 (“the Commission recommends that states use ‘REAL ID’ cards for
voting purposes”); id. (“our Commission recommends that states use the
REAL ID and/or an [Election Assistance Commission] template for voting,
which would be a REAL ID card without reference to a driver’s license”).
The Commission even suggested that “[t]here is likely to be less
discrimination against minorities if there is a single, uniform ID, than if poll
workers can apply multiple standards.” Id. at iv. See also Voting Reform, supra
(“Our concern was that the differing requirements from state-to-state could
be a source of discrimination.”).
So if the State of Texas is guilty of suppressing the votes of racial
minorities because it repeatedly rejected proposals to allow more than six
forms of photo ID, then a fortiori President Carter and Secretary Baker are
guilty of suppressing the votes of racial minorities because they would have
allowed only “a single, uniform ID.” Building Confidence, supra, at
iv (emphasis added).
C.
There is, of course, another way to go. The Seventh Circuit solved
the quandary of holding disparate impact insufficient, yet discriminatory
intent unnecessary, by starting where we always should—with the governing
legal text.
Under Section 2(a), “[n]o voting qualification or prerequisite to
voting or standard, practice, or procedure shall be 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.” 52 U.S.C. § 10301(a) (emphasis added). Invoking that
language, the Seventh Circuit concluded that evidence of disparate impact
alone “do[es] not show a ‘denial’ of anything by Wisconsin, as § 2(a)
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requires.” Frank, 768 F.3d at 753. “[U]nless Wisconsin makes it needlessly
hard to get photo ID, it has not denied anything to any voter.” Id.
The Seventh Circuit also examined the text of Section 2(b). It states
that “‘[a] violation of subsection (a) is established if, based on the totality of
circumstances, it is shown that the political processes . . . 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.’” 768 F.3d at 753 (quoting 52 U.S.C.
§ 10301(b)).
Under that text, the Wisconsin photo ID law is lawful because it “does
not draw any line by race.” Id. “[T]he district judge did not find that blacks
or Latinos have less ‘opportunity’ than whites to get photo IDs.” Id.
“Instead the judge found that, because they have lower income, these groups
are less likely to use that opportunity. And that does not violate § 2.” Id.
The Seventh Circuit illustrated this point by noting the contrast
between racially gerrymandered districts that effectively deprive voters of
one race of an equal opportunity to elect officials of their choice—giving rise
to claims of vote dilution, on the one hand—and voting laws that apply in the
same manner to all voters, such as photo ID requirements, on the other hand.
“In voting-dilution cases, citizens lumped into a district can’t extricate
themselves except by moving, so clever district-line drawing can
disadvantage minorities.” Id. The Wisconsin photo ID law, by contrast,
“extends to every citizen an equal opportunity to get a photo ID.” Id. “[I]n
Wisconsin everyone has the same opportunity to get a qualifying photo ID.”
Id. at 755.
The Ninth Circuit applied the same logic, rejecting a Section 2
challenge to Arizona’s photo ID law because there was “no evidence that
Latinos’ ability or inability to obtain or possess identification for voting
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purposes (whether or not interacting with the history of discrimination and
racially polarized voting) resulted in Latinos having less opportunity to
participate in the political process and to elect representatives of their
choice.” Gonzalez, 677 F.3d at 407 (emphasis added).
Our en banc court should have reached the same conclusion. We
should have followed the principles articulated in Crawford, Frank, and
Gonzalez, and upheld the Texas photo ID requirement accordingly.
D.
What’s more, these same principles were recently reinforced by the
Supreme Court in Brnovich v. Democratic National Committee, 141 S. Ct. 2321
(2021).
In Brnovich, just as in Crawford, the Court heeded the Carter-Baker
Commission’s warnings about election fraud. Id. at 2347–48. It
acknowledged the state’s “indisputably . . . compelling interest in preserving
the integrity of its election process.” Id. at 2347 (quotations omitted). And
it found that interest compelling, and sufficient to defeat a claim under
Section 2, “[e]ven if the plaintiffs had shown a disparate burden.” Id.
The Court reaffirmed that Section 2 does not impose a “freewheeling
disparate-impact regime.” Id. at 2341. To the contrary, Section 2(b)
“directs us to consider ‘the totality of circumstances’” that “have a bearing
on whether a State makes voting ‘equally open’ to all and gives everyone an
equal ‘opportunity’ to vote”—and not “the totality of just one
circumstance,” namely, “disparate impact.” Id.
So that means taking into account common-sense observations about
our electoral system, such as the fact that “voting necessarily requires some
effort”—it “takes time and, for almost everyone, some travel”—and it
“requires compliance with certain rules.” Id. at 2338. It means
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acknowledging that voters “must tolerate the ‘usual burdens of voting’”—
and that having to endure such burdens does not mean that our electoral
system is no longer “‘equally open’” or fails to “furnish[] an equal
‘opportunity’ to cast a ballot.” Id. Put simply, “[m]ere inconvenience
cannot be enough to demonstrate a violation of § 2.” Id.
These principles confirm that our en banc court erred in enjoining the
Texas photo ID requirement.
III.
My concern with our en banc decision in Veasey is not just limited to
the fact that it wrongly blocks an important tool for strengthening voter
confidence in our democracy. I also fear that it undermines our Nation’s
commitment to civil rights, by dividing us over a cause that should powerfully
unite us.
Nearly seven decades ago, before he joined the Court, Justice
Thurgood Marshall proclaimed it his “dedicated belief” “[t]hat the
Constitution is color blind.” Brief for Appellants in Nos. 1, 2 and 4 and for
Respondents in No. 10 on Reargument, at 65, Brown v. Board of Education,
347 U.S. 483 (1954). He called on the Court to embrace the vision that
“‘[o]ur Constitution . . . is color-blind, and neither knows nor tolerates
classes among citizens.’” Id. at 41 (quoting Plessy v. Ferguson, 163 U.S. 537,
559 (1896) (Harlan, J., dissenting)). See also University of California v. Bakke,
438 U.S. 265, 416–18 (1978) (Stevens, J., concurring in part and dissenting in
part) (authors of 1964 Civil Rights Act intended to codify their understanding
of the Constitution as “colorblind”).
We disserve that vision when we treat race neutrality, rather than
racism, as the enemy. See, e.g., Ibram X. Kendi, How to Be an Anti-
Racist 20 (2019) (“The most threatening racist movement is not the alt
right’s unlikely drive for a White ethnostate but the regular American’s drive
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for a ‘race-neutral’ one.”). We discredit the cause when we ignore the
fundamental difference “between securing equality of opportunity regardless
of race and guaranteeing equality of outcome based on race”—“between
color blindness and critical race theory.” Rollerson, 6 F.4th at 648 (Ho, J.,
concurring in part and concurring in the judgment). We dishonor our
commitment to civil rights when we disparage everyone and everything in
America as racist.
Photo ID requirements are ubiquitous. They’re widely accepted in
countless areas outside voting. And they’re race neutral. Disparaging voter
ID laws as irredeemably racist does nothing to bolster voter confidence in our
democracy. It may even exacerbate voter suspicion about the sincerity of our
efforts to ensure the integrity of our democracy—not to mention our
commitment to racial equality. “Citizens are understandably skeptical when
government officials claim that they’re just here to help—but then declare
that up is down, left is right, race consciousness is good, and race neutrality
is bad.” Id. at 650 (Ho, J., concurring in part and concurring in the
judgment).
***
We should all agree about the importance of protecting our democracy
against those who would threaten to overturn the results of an election. So
we shall see whether courts in the future will respect or overturn the will of
the voters when it comes to their support for photo ID requirements and
other ballot security policies that are designed to “build[] confidence in U.S.
elections.” Building Confidence, supra, at 69.
Until then, we are bound by our previous en banc decision in this case.
That decision resulted in a court order that essentially gutted the Texas
photo ID law during the 2016 election cycle. Today our court concludes that
that was obviously a significant win for the plaintiffs. I concur.
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