Full opinion text
OPINION NELVA GONZALES RAMOS, District Judge. The right to vote: It defines our nation as a democracy. It is the key to what Abraham Lincoln so famously extolled as a “government of the people, by the people, [and] for the people.” The Supreme Court of the United States, placing the power of the right to vote in context, explained: “Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.” In this lawsuit, the Court consolidated four actions challenging Texas Senate Bill 14 (SB 14), which was signed into law on May 27, 2011. The Plaintiffs and Interve-nors (collectively “Plaintiffs”) claim that SB 14, which requires voters to display one of a very limited number of qualified photo identifications (IDs) to vote, creates a substantial burden on the fundamental right to vote, has a discriminatory effect and purpose, and constitutes a poll tax. Defendants contend that SB 14 is an appropriate measure to combat voter fraud, and that it does not burden the right to vote, but rather improves public confidence in elections and, consequently, increases participation. This case proceeded to a bench trial, which concluded on September 22, 2014. Pursuant to Fed.R.Civ.P. 52(a), after hearing and carefully considering all the evidence, the Court issues this Opinion as its findings of fact and conclusions of law. The Court holds that SB 14 creates an unconstitutional burden on the right to vote, has an impermissible discriminatory effect against Hispanics and African-Americans, and was imposed with an unconstitutional discriminatory purpose. The Court further holds that SB 14 constitutes an unconstitutional poll tax. I. TEXAS’S HISTORY WITH RESPECT TO RACIAL DISPARITY IN VOTING RIGHTS The careful and meticulous scrutiny of alleged infringement of the right to vote, which this Court is legally required to conduct, includes understanding the history of impairments that have plagued the right to vote in Texas, the racially discriminatory motivations and effects of burdensome qualifications on the right to vote, and their undeniable legacy with respect to the State’s minority population. This un-controverted and shameful history was perhaps summed up best by Reverend Peter Johnson, who has been an active force in the civil rights movement since the 1960s. “They had no civil rights towns or cities in the State of Texas because of the brutal, violent intimidation and terrorism that still exists in the State of Texas; not as overt as it was yesterday. But east Texas is Mississippi 40 years ago.” State Senator Rodney Ellis testified about the horrific hate crime in the east Texas town of Jasper in the late 1990s in •which James Byrd, an African-American man targeted for his race, was dragged down the street until he died. A few years later, two African-American city council members spearheaded the effort to name a highly-qualified African-American as police chief in Jasper. Thereafter, those city council members were removed from their district council seats through “a strange quirk in the law” that allowed an at-large recall election. A. Access to the Polls This anecdote demonstrating Texas’s racially charged communities, the power of the polls, and the use of election devices to defeat the interests of the minority population is, unfortunately,, no aberration. Dr. O. Vernon Burton has focused much of his career in American History on the issue of race relations. Dr. Burton testified about the use in Texas of various election devices to suppress minority voting from the early days of Texas through today. Other experts, including Dr. Chandler Davidson, a professor emeritus of sociology and political science at Rice University, and George Korbel, an attorney with an expertise in voting rights, corroborated Dr. Burton’s findings. This history is summed up as follows: • 1895-1944: All-White Primary Elections • On the heels of Reconstruction, freed slaves and other minority men were just gaining access to the right to vote. The white primary method denied minority' participation in primaries which effectively . disenfranchised minority voters because Texas was dominated by a single political party (the Democratic Party) such that the primary election was the only election that mattered. The state law that mandated white primaries was found unconstitutional by the Supreme Court in 1927. • In response, the Texas Legislature passed a facially neutral law allowing the political parties to determine who was qualified to vote in their primaries, resulting in the parties banning minority participation. This law was held unconstitutional in 1944. • 1905-1970: Literacy and “Secret Ballot” Restrictions • The Terrell Election Law, which also enabled white primaries, prohibited voters from taking people with them to the polls to assist them in reading and interpreting the ballot. Only white Democratic election judges were permitted to assist these voters who could not verify that their votes were cast as intended. Because minority voters had not been taught to read while enslaved or were subject to post-Civil War limited and segregated educational opportunities, and could not use their own language interpreter, these restrictions were struck down in 1970 as rendering voting an empty ritual. • 1902-1966: Poll Taxes • The Texas Constitution included the requirement that voters pay a $1.50 poll tax as a prerequisite for voting. While race-neutral on its face, this was intended to, and had the effect of, suppressing the African-American vote. In 1964, the practice was eliminated as to federal elections when the 24th Amendment to the United States Constitution was adopted. • However, Texas retained the poll tax for elections involving only state issues and campaigns. This practice was ruled unconstitutional as disenfranchising African-Americans in 1966. • 1966-1976: Voter Re-Registration and Purging • Having lost the poll tax, the Texas Legislature passed a re-registration requirement by which voters had to re-register annually in order to vote. It was characterized as a “poll tax without the tax.” Because of its substantial disenfranchising effect, it was ruled unconstitutional in 1971. • In response, Texas enacted a purge law requiring re-registration of the entire electorate. Because Texas was, by then, subject to the Voting Rights Act (VRA) preclearance requirements, the United States Department of Justice (DOJ) objected to the change in the law and it was ultimately enjoined by a federal court in 1982. • 1971-2008: Waller County Students • In 1971, after the 26th Amendment extended the vote to those 18 years old and older, Waller County which was home to Prairie View A & M University (PVAMU), a historically Black university, became troubled with race issues. Waller County’s tax assessor and voter registrar prohibited students from voting unless they or their families owned property in the county. This practice was ended by a three judge court in 1979. • In 1992, a county prosecutor indicted PVAMU students for illegally voting, but dropped the charges after receiving a protest from the DOJ. • In 2003, a PVAMU student ran for the commissioner’s court. The local district attorney and county attorney threatened to prosecute students for voter fraud- — -for not meeting the old domicile test. These threatened prosecutions were enjoined, but Waller County then reduced early voting hours, which was particularly harmful to students because the election day was during their spring break. After the NAACP filed suit, Waller County reversed the changes to early voting and the student narrowly won the election. • In 2007-08, during then Senator Barack Obama’s campaign for president, Waller County made a number of voting changes without seeking preclearance. The county rejected “incomplete” voter registrations and required volunteer deputy registrars (VDRs) to personally find and notify the voters of the rejection. The county also limited the number of new registrations any VDR could submit, thus limiting the success of voter registration drives. These practices were eventually prohibited by a consent decree. • 1970-2014: Redistricting • In every redistricting cycle since 1970, Texas has been found to have . violated the VRÁ with racially gerrymandered districts. This history describes not only a penchant for discrimination in Texas with respect to voting, but it exhibits a recalcitrance that has persisted over generations despite the repeated intervention of the federal government and its courts on behalf of minority citizens. In each instance, the Texas Legislature relied on the justification that its discriminatory measures were necessary to combat voter fraud. In some instances, there were admissions that the legislature did not want minorities voting. In other instances, the laws that the courts deemed discriminatory appeared neutral on their face. There has been a clear and disturbing pattern of discrimination in the name of combatting voter fraud in Texas. In this case, the Texas Legislature’s primary justification for passing SB 14 was to combat voter fraud. The only voter fraud addressed by SB 14 is voter impersonation fraud, which the evidence demonstrates is very rare (discussed below). This history of discrimination has permeated all aspects of life in Texas. Dr. Burton detailed the racial disparities in education, employment, housing, and transportation, which are the natural result of long and systematic racial discrimination. As a result, Hispanies and African-Americans make up a disproportionate number of people living in poverty, and thus have little real choice when it comes to spending money on anything that is not a necessity. Minorities continue to have to overcome fear and intimidation when they vote. Reverend Johnson testified that there are still Anglos at the polls who demand that minority voters identify themselves, telling them that if they ♦'have ever gone to jail, they will go to prison if they vote. Additionally, there are poll watchers who dress in law enforcement-style clothing for an intimidating effect. State Representative Ana Hernandez-Luna testified that a city in her district, Pasadena, recently made two city council seats into at-large seats in order to dilute the Hispanic vote and representation. And even where specific discriminatory practices end, their effects persist. It takes time for those who have suffered discrimination to slowly assert their power. Because of past discrimination and intimidation, there is a general pattern by African-Americans of not having the power to fully participate. Other than to assert that today is a different time, Defendants made no effort to dispute the accuracy of the expert historians’ analyses and other witnesses’ accounts of racial discrimination in Texas voting laws — its length, its severity, its effects, or even its obstinacy. B. Racially Polarized Voting Another relevant aspect in the analysis of Texas’s election history is the existence of racially polarized voting throughout the state. Racially polarized voting exists when the race or ethnicity of a voter eorre-lates with the voter’s candidate preference. In other words, and in the context of Texas’s political landscape, Anglos vote for Republican candidates at a significantly higher rate relative to African-Americans and Hispanics. Dr. Barry C. Burden, a political science professor at the University of Wisconsin-Madison, testified regarding racially polarized voting in Texas. Dr. Burden explained that the gap between Anglo and Latino Republican support is generally 30-40 percentage points. The rate of racially polarized voting between Anglo and African-American voters is even larger. These racial differences were much greater than those among other sociodemographic groups — including differences between those of low and high income, between men and women, between the least and most educated, between the young and the old, and between those living in big cities and small towns. Many courts, including the United States Supreme Court, have confirmed that Texas suffers from racially polarized voting. And Mr. Korbel testified without contradiction that, in the current redistricting litigation pending in the Western District of Texas, San Antonio Division, Texas admitted that there is racially polarized voting in 252 of its 254 counties. Mr. Korbel opined that racially polarized voting extends to the remaining two counties as well. Defendants offered no evidence to the contrary on this issue. C. Extent to Which Texans Have Elected African-Americans and Hispanics to Public Office Texas’s long history of racial discrimination may explain why African-Americans as well as Hispanics remain underrepresented within the ranks of publicly elected officials relative to their citizen population size. According to Dr. Burden’s findings, as of 2013, African-Americans held 11.1% of seats in the Texas Legislature although they were 13.3% of the population in Texas as estimated by the 2012 U.S. Census. Hispanics fared worse. In 2013, Hispanics held 21.1% of seats in the state legislature even though they were 30.3% of the Texas citizen population the year before. African-American and Hispanic under-representation did not improve when reviewing elected seats beyond the legislature. The most recent data available indicates that, as of 2000, only 1.7% of all Texas elected officials were African-American. A similar analysis from 2003 found that approximately 7.1% of all Texas elected officials were Hispanic. Defendants did not challenge these findings or offer any controverting evidence. Thus, this Court adopts Dr. Burden’s conclusion that African-Americans and Hispanics remain woefully underrepresented among Texas’s elected officials. D. Overt or Subtle Racial Appeals Another aspect of Texas’s electoral history is the use of subtle and sometimes overt racial appeals by political campaigns. As Dr. Burton explained in his report, “[t]hrough the twentieth century, racial appeals^ — once more explicit — have become increasingly subtle.” He noted that, words like “welfare queen,” “lazy,” and “immigration” have been used by campaigns to activate racial thinking in the minds of voters. Instances of campaigns relying on racial messages persist in Texas. For example, in a 2008 Texas House of Representatives race, an Anglo candidate sent a mailer featuring a manipulated picture of his Anglo opponent. The opponent’s skin was darkened, a Mexican flag button was superimposed on his shirt, and an oversized Chinese flag was positioned directly behind him — all while questioning his commitment against illegal immigration. Another example is a campaign mailer sent by an Austin-based political action committee against an Anglo candidate running for a Texas House of Representatives seat. The mailer, titled “Birds of a Feather Flock Together,” featured black birds and the Anglo candidate surrounded by various minority elected officials — the late Texas State Senator Mario Gallegos, Congresswoman Sheila Jackson Lee, and President Barack Obama — with the caption “Bad Company Corrupts Good Character.” Dr. Burton offered another example of a 2008 campaign mailer aimed at dissuading African-Americans from voting. The mailer, sent to African-Americans in Dallas, Texas, warned that a group suspected of voter fraud was trying to get people to the polls and that “[p]olice and other law enforcement agencies [would] be at the voting locations.” The mailer further stated that a victim of voter fraud could serve jail time. This Court finds that racial appeals remain a tactic relied on by Texas’s political campaigns. Defendants offered no controverting evidence on this issue. II. THE STATUS QUO BEFORE SB 14 WAS ENACTED In-person voter impersonation in Texas is rare. Before SB 14 went into effect, the only document required for a registered voter to cast a ballot in Texas was his or her voter registration certificate. Absent the certificate, the voter could use a driver’s license or any number of other documents such as a utility bill that would, as a practical matter, identify the person as the registered voter. Major Forrest Mitchell works in the Texas Attorney General’s law enforcement division. He testified regarding the Special Investigations Unit which handles all claims of election violations brought to the Attorney General. In the ten years preceding SB 14, only two cases of in-person voter impersonation fraud were prosecuted to a conviction — a period of time in which 20 million votes were cast. In the first case, Lorenzo Almanza, Jr., appeared at the polls with his brother Orlando’s voter registration certificate and represented himself to be Orlando, who was incarcerated at the time. The poll worker knew the brothers and alerted the election judge. Because Lorenzo had Orlando’s valid voter registration certificate, the elections department permitted him to vote. Lorenzo was convicted, along with his mother, who accompanied him to the polls and fraudulently vouched that Lorenzo was, in fact, Orlando. In the other case, Jack Crowder, III voted as his deceased father. According to Major Mitchell, since the implementation of SB 14’s photo ID requirements over three elections, there has been no apparent change in the rate of voter fraud referrals and no higher rate of convictions. This is not surprising, considering the testimony of several experts who are abundantly familiar with the nature of in-person voter impersonation fraud and election history, and who testified convincingly that such fraud is difficult to perpetrate, has a high risk/low benefit ratio, and does not occur in significant numbers. While there have always been allegations of in-person voter impersonation fraud, the reality is that the allegations are seldom substantiated. According to Randall Buck Wood, an attorney who was formerly the Director of Elections for the Texas Secretary of State (SOS) and whose specialty is election law, in over 44 years of investigating and litigating election issues, including allegations of rampant voter impersonation fraud, he has never found a single instance of successful voter impersonation in an election contest. Dr. Lorraine Minnite, a tenured Associate Professor of Public Policy at Rutgers University, has done extensive work since 2000 studying voter fraud in American contemporary elections. She produced a report specific to Texas, which was consistent with other states’ history of very little in-person voter impersonation fraud. Dr. Minnite found fewer than ten cases of in-person voter impersonation fraud in the United States between 2000 and 2010. Two of those were in Texas, with one involving a woman with a falsified driver’s license bearing her actual photo, so it is questionable whether SB 14 would have had any effect on that case. Two occurred after SB 14 was passed. Dr. Minnite’s research found that sloppy journalism regarding voter iraud and officials repeatedly suggesting that voter fraud has occurred have instilled a misconception in the public. Press releases making allegations of voter fraud were often repeated in news stories without having been verified, feeding a baseless skepticism about election integrity. Looking at the pre-SB 14 procedures in place and the rarity of in-person voter impersonation fraud, she concluded: “So SB 14 doesn’t add anything, in my opinion, to what we already have in place.” U.S. Representative Marc Veasey previously served as a state representative in Texas. He served on the House Elections Committee over several sessions and did not see any evidence of widespread in-person voter fraud. Instead, it was always just innuendo. Defendants claim that voter impersonation fraud is difficult to detect and could potentially be more widespread than the two incidents actually shown would indicate. They further claim that the voter rolls are bloated with deceased voters, which creates an opportunity to commit in-person fraud. However, they failed to present evidence that the deceased are voting, which they could have done by comparing the deceased voter list against the list of those who have voted. As Mr. Wood and Dr. Minnite made clear, in-person voter impersonation fraud is difficult to perpetrate with success. The perpetrator would have to: (1) know of an existing registered voter; (2) gain possession of that person’s voter registration certificate or some other documentation of name and residence; (3) precede that person to the polls; (4) elude recognition as either who they actually are or as not being who they pretend to be; and (5) hope that the actual voter does not appear at the polls later to cast his or her own ballot. In State Representative Todd Smith’s terms, such a person would have to be a fool to take such risks, with significant criminal penalties, in order to cast a single additional ballot in that election. The cases addressing voter photo ID laws hold that the states have a legitimate' interest in preventing in-person voter impersonation fraud despite minimal evidence that it exists as a real threat to any election, and Defendants here have offered very little evidence that such fraud is occurring. This Court finds that instances of in-person voter impersonation fraud in Texas are negligible. In contrast, there appears to be agreement that voter fraud actually takes place in abundance in connection with absentee balloting. Mr. Wood testified that some campaign assistants befriend the elderly and raid their mailboxes when mail-in ballots arrive from the county. SB 14 does nothing to combat fraud in absentee ballots and, ironically, appears to relegate voters who are over 65 and do not have qualified SB 14 ID to voting by absentee ballot. Justifiably, many of the registered voters who testified in this case stated that they need to vote in person because they do not trust that their vote will be properly counted if they have to vote by absentee ballot. III. THE TEXAS PHOTO IDENTIFICATION LAW A. The Challenged Provisions of SB 14 Effective January 1, 2012, Texas registered voters are required to present a specified type of photo ID when voting at the polls in person. SB 14, § 26 (effective date). The law has a number of provisions placed in issue in this case, described generally as follows. The only acceptable forms of photo ID are: (1) a driver’s license, personal ID card, and license to carry a concealed handgun, all issued by the Department of Public Safety (DPS); (2) a United States military ID card containing a photo; (3) a United States citizenship certificate containing a photo; and (4) a United States passport. Id., § 14. All of these forms of photo ID must be current or, if expired, they must not have expired earlier than sixty days before the date of presentation at the polls. Id. If a voter does not have such photo ID, that voter may obtain an election identification certificate (EIC), which is issued by DPS upon presentation of proof of identity. Id., § 20. Persons with a verifiable disability may obtain an exemption from the photo ID requirement, but must provide required documentation of the disability to the voter registrar. Id., § 1. The sources of that documentation are limited to the United States Social Security Administration and United States Department of Veterans Affairs. Id. When the voter appears at the polling place, the law requires that the voter’s registered name and name on the photo ID be exactly the same or “substantially similar.” Id., § 9(c). If they are exactly the same, the voter may cast a ballot without further complication. If they are not exactly alike, but are deemed by the poll workers to be “substantially similar” under the SOS’s guidelines, the voter is permitted to vote, but must first sign an affidavit that the actual voter and the registered voter are one and the same. Id. If the registered name and the name on the photo ID are not deemed by the poll workers to be “substantially similar,” or if the voter does not have any of the necessary photo ID, the voter may cast a provisional ballot, which will be counted only if the voter, within six days of the election, goes to the voter registrar with additional documentation to verify his or her identity. Id., §§ 15, 17, 18. Those who have a religious objection to being photographed or who lost their photo ID in a natural disaster may also cast a provisional ballot subject to later proof of identity within six days of any election in which that person votes. Id., § 17. The law requires each county voter registrar to provide notice of the photo ID law when issuing original or renewal registration certificates. Id., § 3. The registrar must post a notice in a prominent location at the county clerk’s office and include notice in any website maintained by that registrar. Id., § 5. The SOS is required to include the notice of this law on the SOS website and must conduct a statewide effort to educate voters regarding the new requirements. Id., § 5. The SOS must also issue training standards for poll workers regarding accepting and handling the photo IDs. Id., § 6. The county clerks are directed to provide training pursuant to the SOS’s standards for their respective poll workers. Id., § 7. B. The Texas Law is Comparatively the Strictest Law in the Country States began considering voter photo ID laws in the late 1990s. As of 2014, eleven states, including Texas, have enacted laws described as “Strict Photo ID” by the National Conference of State Legislatures, with two of those states delaying implementation. There are several features of photo ID laws to evaluate when determining how strict they are, including soft roll-outs (which Texas did not adopt), educational campaigns (which are woefully lacking in Texas), the time frame during which an expired ID will be accepted (a matter on which Texas is relatively strict), the time frame in which provisional ballots may be cured (a matter on which Texas is arguably in the middle ground), and terms on which provisional ballots may be cured (where Texas’s requirements that the voter still produce a qualified photo ID make it strict). Comparing the acceptable forms of photo IDs of the strict states, it is clear that SB 14 provides the fewest opportunities to cast a regular ballot, as demonstrated in the following table. STRICT State Compaeison This table demonstrates that there are at least 16 forms of ID that some of the other strict states permit, but that Texas does not, and there are three classes of persons, including the elderly and indigent, who are excused in whole or in part from the photo ID requirement in many states, but not in Texas. According to the evidence, the costs to obtain the respective forms of photo IDs permitted in -Texas, if the voter does not already have an accurate original or certified.copy of his or her birth certificate, are as follows: _Texas EIC_ Issued by DPS Application Fee_$0.00 Issued by EIC-only Birth Certificate if the application is tendered in $2.00-3.00 person (not by mail or online) and only if already registered and accurate_ DSHS or Full-purpose Birth Certificate (the only type issued by mail, $22.00-23.00 even if for EIC purposes) ___ County Search Fee to find Birth Certificate plus statutory $22.00 surcharge Registrar Delayed Birth Certificate — Search fee plus certified copy $47.00 Application to Amend Birth Certificate plus certified copy $37.00 Other State or Territory Out-of-State Birth Certificate $5.00-34.00 Total Fees Required To Be Paid To Obtain EIC $2.00-47.00 Texas Driver’s License Issued by DPS ' Application Fee $9.00-25.00 Replacement Fee $11.00 Birth Certificate (see above) $22.00-47.00 Total Fees Required To Be Paid To Obtain Driver’s $31.00-72.00 License Texas Personal Identification Card Issued by DPS Application Fee 3.00-16.00 Replacement Fee $11.00 Birth Certificate (see above) $22.00-47.00 Total Fees Required To Be Paid To Obtain Personal ID $28.00-63.00 Card Texas Concealed Handgun License Issued by DPS Application Fee-new $70.00-140,00 Application Fee-renewed $70.00 Issued by DPS Texas Driver’s License or Personal Identification Card_$9.00-63.00 Private Vendor Classroom Training_Varies Total Fees Required To Be Paid To Obtain Handgun Over $79.00 _License_ Passport Issued by US Application Fee — New $55-135 Application Fee — Renewed $30.00-110.00 Private Vendor Photo Varies Total Fees Required To Be Paid To Obtain Passport Over $30.00 Citizenship Certificate with Photo Issued by US Original Naturalization Certificate $680.00 Original Certificate of Citizenship $600.00 Copy of Naturalization Certificate $345.00 Total Fees Required To Be Paid To Obtain Citizenship $345-680 Cert. Military ID with Photo Not Quantifiable Thus, unless the voter already has an official copy of his or her birth certificate, the minimum fee to obtain an SB 14-qualified ID to vote will be $2.00 and, according to the individual Plaintiffs’ testimony, will likely be much more because of prevalent problems with the accurate registration of births of minorities. IV. THE METHOD AND RESULT OF PASSING SB 14 A. The Texas Legislature’s Approach to the Consideration of SB 14 Was Extraordinary SB 14 was the Texas Legislature’s fourth attempt to enact a voter photo ID law. Over time, the provisions became increasingly strict and the procedural mechanisms engaged to 'ensure passage became more aggressive. • HB 1706 (2005) • In addition to the ID permitted under SB 14, the provisions included: (1) driver’s licenses and personal ID cards issued by a DPS-equivalent of any state, further accepting those IDs even if they were expired for two years; (2) employer IDs issued in the ordinary course of business; (3) student photo IDs is-. sued by a public or private institution of higher education; (4) a state agency ID card; and (5) a photo ID issued by an elections administrator or county clerk. Non-photo ID, such as utility bills, bank statements, and paychecks that were permitted under existing law continued to be acceptable. A personal identification certificate would have been available free of charge upon execution of an affidavit, with no underlying documentation specified. It further provided that it would not take effect unless it passed YRA scrutiny. • The bill, after being reported out of the Elections Committee, passed the House but died in the Senate Committee on State Affairs. • HB 218 (2007) • The provisions, as the bill was reported out of the Senate State Affairs Committee, included (in addition to the ID permitted under SB 14): (1) a DPS driver’s license or personal ID card even if it was expired for two years (leaving out those IDs issued .by other states); (2) employer IDs issued in the ordinary course of business; (3) student photo IDs issued by a public or private institution of higher education (now requiring that the school be' located in Texas); (4) an ID issued, by an agency or institution of the federal government (added); and (5) an ID issued by an agency, institution, or political sub- • division of the State of Texas. This bill still permitted the use of non-photo ID. The free election identification certificate provision left out the requirement of an affidavit or any other proof, of identity. There was no requirement that it pass VRA scrutiny. • The bill was reported out of the House Elections Committee and several House amendments were adopted. In the Senate, it was reported out of the State Affairs Committee. While the rules were initially suspended to take it up out of order for second reading, the vote was reconsidered and the measure failed. The rules were not suspended, at which point the bill died. • SB 362 (2009) . • As it emerged from the House Elections Committee, the provisions included (in addition to ID permitted by SB 14): (1) a driver’s license or personal ID card issued by DPS, which has not been expired for more than two years; (2) an ID issued by an agency or institution of the federal government; and (3) an ID issued by an agency, institution, or political subdivision of the State of Texas. Employer and student IDs were omitted. Nonphoto ID was still permitted. This bill repeated the free election identification certificate with no underlying documentation requirement. • The bill started in the Senate this time. The Senate adopted a rules change just for voter ID legislation, allowing it to be set as “special order” upon majority vote, which vote was obtained. It was referred to the Committee of the Whole Senate, from which it was reported favorably with no amendments. Upon second reading, two , amendments offered by a primary author, Senator Troy Fraser, were adopted. A point of order complaining of the lack of a fiscal note, evidenced by the Finance Committee’s contingency rider authorizing $2 million for voter education from the general revenue fund, was overruled. It passed the Senate and went to the House Elections Committee. It was reported out of committee, but died on the calendar, due to drubbing. Based on this experience, the proponents of voter ID legislation knew that additional procedural changes would be required to get the legislation passed. With the 2010 elections giving Republicans a majority in both the House and the Senate, they had the votes to pass a law as long as they could eliminate any two-thirds vote requirement in the Senate and keep the bill at the front of the line in both houses. 1. New Uncompromising Sponsorship In 2011, SB 14 appeared with nineteen authors and was described by some of the Texas legislators as having questionable authorship because the authors and sponsors seemed to not have full command of the text of the bill, and it was presented as “pre-packaged,” already “baked,” or a “done deal.” Sponsors exhibited an aggressive attitude and were reluctant to answer questions, appearing evasive or disinterested in any consideration of opponents’ substantive concerns. When Senator Ellis asked primary author Senator Fraser questions about SB 14, the response was, “I am not advised.” This attitude, which Ellis testified was out of character for sponsors of major bills, was explained when Senator Fraser indicated that he had “drawn the straw.” The attitude in the 2011 session was dramatically different from that of 2009 in that SB 14 proponents were not willing to negotiate in their shared interests. 2. Speed Through the Texas Senate Special Priority and the Need for Speed. According to Senator Ellis, Texas legislation is a “game for the swift” and SB 14 was “on a spaceship. I mean, it— was trying to rocket this bill out of there.” It was pre-filed on November 8, 2010, and had a bill number of SB 178. So on January 12, 2011, the sponsors obtained the permission of Lieutenant Governor David Dewhurst to re-file the bill under one of the low numbers reserved for his priorities, thus giving it the number “SB 14.” That number telegraphs to the Senate a priority for the Lieutenant Governor. Emergency Designation. Governor Rick Perry designated “Legislation that requires a voter to present proof of identification when voting” as an “emergency matter for immediate consideration” by both houses of the Texas Legislature. According to Senator Wendy Davis, no one could explain what the emergency was. The effect of this was to permit the legislature to process SB 14 during the first sixty (60) days of the legislative session. Without that designation, it would have .taken a four-fifths vote of the Senate to take up the legislation that early in the session. With the emergency designation and the ability to proceed during the first two months of the session when the calendar was clear, other techniques for slowing down the process were eliminated. For instance, there were no “blocker bills” in the way. Two-Thirds Rule Change. At the beginning of the 2011 legislative session, the Senate adopted the governing rules of the prior session. Under Senate Rule 5.11(a), a two-thirds majority vote is required to make a bill or resolution a “special order.” When designated as a “special order,” the bill is considered prior to other business of the Senate. The Senate of the 2009 Texas Legislature had adopted a significant rules change to Rule 5.11 providing that a bill relating to voter ID requirements that was reported favorably from the Committee of the Whole Senate could be set as a special order at least 24 hours after a motion to set it was adopted by a majority of the members of the Senate. That rules change, made solely for voter ID legislation, followed the 2007 session when the two-thirds rule blocked predecessor HB 218 from being taken up out of the ordinary order of business and the rule remained in place for the 2011 Texas Senate. Senators Davis, Ellis, and Carlos Uresti all testified that the suspension of the two-thirds rule was an extraordinary measure. While the rule may not be enforced for insignificant matters, and has been suspended by agreement for politically sensitive votes, it is unprecedented to suspend that rule for contentious legislation as important as SB 14. Senator Uresti testified that the rule had been in place at least five decades and he had never seen it waived for any other major legislation, and Senator Ellis considered it a 100-year honored tradition. Even Lieutenant Governor Dewhurst admitted that he was not aware of any similar rule change for any other bill. Committee Bypass. Pursuant to Senate rules, no action may be taken on a bill until it has been reported on by a committee. Immediately after the emergency designation was made, the Texas Senate passed a resolution to convene the Committee of the Whole Senate that same day, on January 24, 2011, to consider only SB 14 According to Representative Trey Martinez-Fischer, use of the Committee of the Whole is unusual, with no useful purpose in this instance other than to eliminate the natural delay attendant to the ordinary committee process. The first reading in the Senate was on January 24, 2011, at which time SB 14 was referred to the Committee of the Whole, with Senator Robert Duncan presiding. The next day, January 25, 2011, at 9:20 p.m., Senator Duncan reported SB 14 out of committee and to the Senate with the recommendation that it be passed. Immediately, Senator Fraser moved that it be set as a special order for 9:20 p.m. Wednesday, January 26, 2011, and the motion passed by majority vote. Questionable Fiscal Notes. Ordinarily, fiscal notes signed by the Director of the Legislative Budget Board (and kept current as legislation changed) were required to accompany any legislation. This requirement was particularly important in 2011 because the legislative session was confronting a $27 billion budget shortfall. Lieutenant Governor Dewhurst, presiding over the Senate, and Speaker Straus, presiding over the House, instructed both chambers that they were not to advance any bill with a fiscal note in the 2011 session because no additional costs could be added to the state’s budget. However, the $2 million fiscal note that had accompanied the prior legislature’s voter ID bill was eventually continued with SB 14, unchanged. Senator Davis explained that a one-time expenditure of $2 million would never be enough to accurately reflect the cost of SB 14. A quarter of that amount was earmarked for research just to determine what type of voter education was needed. The remainder was grossly insufficient for any media campaign. The failure to fund SB 14 was clear at trial — no real educational campaign was initiated, and the individuals such a campaign needed to reach knew little, if anything, about the change in the law, including which photo IDs were allowed and the availability of EICs. Defendants failed to adduce any evidence to controvert Senator Davis’ assertion that it would take far more than $2 million of publicity to reach registered voters who would need to be educated effectively and in a timely manner on this significant change in the ability to vote. And it is clear from the testimony of registered voters in this case, that many heard about the change in the law only after they appeared at the polls to cast their vote. For many, six days to cure a provisional ballot with a qualified photo ID was an unreasonable expectation because they did not understand the procedure, they needed time to save money (if they could) and obtain underlying documents (if they could), and it would take a significant effort to get to the proper office to apply for and get the necessary photo ID, which might take weeks or months to arrive. Passed from Senate Without Meaningful Debate. As set out below, the proponents allowed no real debate on SB 14’s strict requirements, tabling most amendments and thus preventing discussion. There was evidence that Senator Tommy Williams requested that the DPS ID databases be compared to the SOS registered voter database to get an idea of how many voters would not have the required photo ID. That database match was performed by the SOS, but the results showing 504,000 to 844,000 voters being without Texas photo ID were not released to the legislature. As scheduled, on January 26, 2011, SB 14 was passed having spent three days before the Senate prior to being passed on to the House of Representatives. 3. Committee Process, Evidence, and Debate in the Texas House Special Committee. While there was slightly greater lag time in the House, compared to the three days it took to get SB 14 through the Senate, the bill did not get any more meaningful debate there. As in the Senate, House rules require that all bills be referred to a committee and be reported from that committee before consideration by the House. On February 11, 2011, SB 14 was assigned to a Select Committee on Voter Identification and Voter Fraud, instead of the standing committee on elections which generally considered election matters. Using the Select Committee allowed the Speaker of the House to assign representatives to the committee. Representative Veasey, who was on both the Elections Committee and the Select Committee, felt that the Select Committee’s membership was not a fair representation of the House and his appointment as vice-chair was only for appearances. Representative Martinez-Fiseher commented that seniority was not honored on a select committee, and Representative Anchia noted that the select committee device was highly unusual, particularly to consider a single bill. Fiscal Note, Impact Study, and Emergency. As noted, there is some question whether SB 14 was accompanied by an appropriate fiscal note. Representative Martinez-Fischer testified that there had been no impact study submitted to the legislature. Under the House rules, bills are required to be accompanied by an impact statement when they create or impact a state tax or fee. Furthermore, Representative Anchia’s questions about racial impact went unanswered. On March 21, 2011, SB 14 was placed on the emergency calendar of the House. However, due to a point of order related to a misleading bill analysis, it was returned to the Select Committee and re-emerged on March 23, 2011, to again be placed on the emergency calendar, and the proposed amendments were immediately reviewed. The following day, SB 14 passed the House, bearing only a few amendments. 4. The Amendments that Were Considered While a total of 104 amendments were proposed in the two houses of the legislature, those that would have ameliorated the harsh effects of SB 14 were largely tabled. Representatives Veasey and Hernandez-Luna testified that there was an attitude that amendments were simply not going to be accepted. The amendments proposed terms that, in some cases, were similar to those adopted by other states — even those that have passed strict photo ID laws. Some sought provisions that had been included in prior Texas photo ID bills. But the amendments in Texas, when tabled, were effectively eliminated from any debate or consideration. A motion to lay on the table, if carried, shall have the effect of killing the bill, resolution, amendment, or other immediate proposition to which it was applied. Such a motion shall not be debatable, but the mover of the proposition to be tabled, or the member reporting it from committee, shall be allowed to close the debate after the motion to table is made and before it is put to a vote. Appended to this Opinion is a table outlining the proposals that would have accommodated the voters. They included the use of additional forms of ID, allowing the use of IDs that were not exact matches or that had expired for a longer period than SB 14 allows, making it easier to register to vote and obtain photo ID, requiring voter education, requiring SOS reporting of data relevant to the implementation of SB 14, and funding. Senator Davis attempted to communicate to her colleagues that the terms of SB 14 created a Catch-22 for voters who did not have the necessary underlying documents to obtain photo ID. She created a detailed and informative diagram of the burden involved. In essence, for the most common documentation, Senator Davis showed that a DPS ID was required in order to request a certified copy of a voter’s birth certificate and a certified copy of a birth certificate was required to get a DPS ID. And obtaining both required payment of fees. So if the registered voter had neither, he or she could get neither— without going to extraordinary lengths and, in some cases, significant expense. Many of the legislative amendments offered and tabled sought the loosening of the ID requirements and/or elimination of fees for a DPS personal ID card (if a registered voter had the underlying documentation to get one.) Knowing that all amendments were bé-ing tabled, Senator Davis withdrew her proposed amendment which would allow indigents to vote a provisional ballot that could be cured by affidavit, and prevailed upon Senator Duncan, the Republican who had been placed in charge of SB 14, to include the indigent-friendly terms with his amendment which included similar terms for those with religious objections to having their photo taken. Senator Duncan’s amendment, containing the indigent provision, passed the Senate. However, the House stripped the indigent provision and added in the natural disaster provision, which is how SB 14 emerged from the conference committee. 5. Refusal of Amendments and Going “Outside the Bounds” A few ameliorative amendments passed the House and remained in the enrolled version of SB 14, such as a contingency plan (provisional balloting) for voters whose photo IDs were stolen or lost in a natural disaster. However, the House passed a few more, leading the Senate to refuse to concur in the House amendments. Of particular note are the following amendments: (1) including as a qualified ID an ID card that contains the person’s photograph and is issued or approved by the State of Texas (H 20; Alonzo); (2) including as a qualified ID a valid ID card that contains the person’s photograph and is issued by a tribal organization (H 30; Gonzalez, N.); and (3) preventing DPS from collecting a fee for a duplicate personal identification certificate from a person who seeks a voter ID (H 45; Anchia). To resolve matters regarding SB 14, the two bodies formed a conference committee. Rather than accept the amendment to make duplicate DPS IDs free, the conference committee sought approval to go outside the bounds of both the Senate and House versions of the bill. Ordinarily, Senate Rule 12.03 (2011) prescribed the bounds within which the conference committee was to work: conference committees are not to “add text on any matter which is not included in either the House or Senate version of the bill or resolution.” A similar rule governs the jurisdiction conferred on the conference committee by the House. Resolutions permitting the conference committee to go outside the bounds were passed in both houses and the resulting language of SB 14 included the invention of the election identification certificate (EIC). The EIC additions were apparently offered to resolve concerns that registered voters needed access to a photo ID without the necessity of paying a fee. However, Representative Anchia testified that it was very unusual to go outside the bounds in this manner and include an entirely new provision that had not been properly vetted by either the Senate or the House. And as illustrated by. the voters testifying in this case, an EIC does not resolve the substantial issues that had been identified with respect to voters obtaining the underlying documents that are needed in order to apply for an EIC (just as they are needed for Texas driver’s licenses and Texas personal ID cards). A conference committee report was passed, and SB 14 was sent to Governor Perry, who signed it into law on May 27, 2011. SB 14, as signed into law, did not include photo IDs issued by Texas state agencies or departments (other than the original IDs issued by DPS) and did not include tribal IDs. 6. Shifting Rationales As the Texas Legislature pushed the voter photo ID laws over the years, the justifications shifted, starting with com-batting voter fraud mixed with prohibiting non-citizens from voting, and then to improving election integrity and voter turnout. Although, these rationales are important legislative purposes, there is a significant factual disconnect between these goals and the new voter restrictions. As Mr. Wood put it, the 2011 Texas Legislature did not really try to determine if photo ID was necessary, nor did it try to determine whether SB 14 would have a positive effect. Plaintiffs argued that it was a solution looking for a problem, a. Preventing Voter Fraud As demonstrated above, the Texas Legislature had little evidence of in-person voter impersonation fraud. While there is general agreement that voting fraud exists with respect to mail-in ballots, the same was not demonstrated to be a real concern with in-person voting. And it was generally agreed that in-person voting fraud is the only type of voting fraud that would be addressed by a photo ID. law. Even with respect to policing in-person voting, Representative Anchia testified that DPS officers had shown a collection of photo IDs to legislators and they could not tell which ones were fake, leading him to conclude that poll workers would be no better at evaluating what IDs were authentic, a matter not addressed by the terms of SB 14. Over time, proponents of the photo ID bill began to conflate voter fraud with concern over illegal immigration. The 2010 U.S. Census had revealed a large increase in the Hispanic population in Texas. In 2011, bill proponents were pointing to illegal immigration in relation to voter ID while the legislature also addressed redistricting, the elimination of sanctuary cities, an English-only bill, and rollbacks of the Affordable Care Act. There was a lot of anti-Hispanie sentiment. Representative Martinez-Fiseher testified, From a Legislative perspective, I think it takes a census to sort of wake people’s eyes up, and so in the context of 2011 that we evaluated their ID and other proposals, it came on the heels of a census release that showed that the State of Texas grew by over 4 million people in the course of a decade; 89 percent of that minority; 65 percent of that Hispanic, 23 million children 95 percent Hispanic. It marked the first time in the history of the State of Texas that our public education system became majority Hispanic. These were astronomical metrics of demographic growth. As Dr. Burton testified, voter restrictions tend to arise in a predictable pattern when ■the party in power perceives a threat of minority voter increases. But Representative Hernandez-Luna testified convincingly that illegal immigrants are not likely to try to vote. “They are living in the shadows. They don’t want any contact with the government for fear of being deported because that — I mean, my family was afraid to even go grocery shopping much less attempt to illegally vote.” Instead, the issue of non-citizen voting appears related to citizens who have confused the voter registration records because, when they are summoned for jury duty, they deny their citizenship in order to be exempt from service. So that “non-citizen” report filters into voter records despite the fact that it is false. Representative Todd Smith admitted that he had no facts to support his concerns about non-citizen voting, but was reacting to allegations. Furthermore, non-citizens (legal permanent residents and visa holders) can legally obtain a valid Texas driver’s license and a concealed handgun license, making the use of those IDs to prevent non-citizen voting rather illusory. Only one instance of a non-citizen voter was revealed at trial. In that case, a Norwegian citizen, who had truthfully filled out his form to reflect that he was not a citizen, was mailed a voter registration card anyway. So he thought he had the right to vote. Clearly, he was not trying to improperly influence an election. Representatives Anchia, Hernandez-Luna, and Martinez-Fiseher and Senator Uresti indicated that the repeated references to illegal-aliens and non-citizens voting generated anti-Hispanie feelings. Representative Hernandez-Luna even testified that lawmakers were equating Hispanic immigration with risks of leprosy in a very tense atmosphere. Senator Davis added that there was unfounded concern about non-citizen students. b. Increasing Public Confidence and Voter Turnout Proponents of-the voter ID law argued that such laws fostered public confidence in election integrity and increased voter turnout. However, there was no credible evidence to support (a) that voter turnout was low because of any lack of confidence in the elections, (b) that a photo ID law would increase confidence, or (c) that increased confidence would translate to increased turnout. Senators Fraser and Dan Patrick were unaware of anyone not voting out of concern for voter fraud. Ann McGeehan, who was the Director of the Elections Division at SOS, said the same. She further admitted that implementing the provisional ballot process might even cause voters to lose confidence. The public confidence argument was, for the most part, premised on the United States Supreme Court’s approval of the Indiana photo ID law and implementation of similar laws in other states, along with the increase in voter turnout in the 2008 general election. Representative Anchia noted that the 2008 increase in voter turnout was nationwide (not just in photo ID law states) and was in response to Barack Obama’s presidential campaign rather than any photo ID law. Defendants’ expert, Dr. M.Y. (Trey) Hood, testified that he linked the 2008 increased voter turnout to the unprecedented Obama campaign. His study of the voter turnout in Georgia in the 2012 election reflected an across-the-board suppression of turnout, which he concluded was caused by implementation of that state’s photo ID law. He did not do a study of Texas for this case. Dr. Burden testified that SB 14 would decrease voter turnout because it increases the cost associated with voting. Because the poor are more sensitive to cost issues, he concluded that’ SB 14’s terms raising the cost of voting would almost certainly decrease voter turnout, particularly among minorities. Dr. Hood admitted that it was. a firmly established political science principle that increased costs of voting are related to decreased turnout, which could be expected with respect to the cost of obtaining an EIC unless some other factor outweighed it for the voters. Defendants presented evidence that public .opinion polls showed that voters overwhelmingly approved of a photo ID requirement. Polls showed approval ratings as high as 86% for Anglos, 83% for Hispanics, and 82% for African-Americans in 2010. In similar polls conducted in 2011 and 2012, those numbers dropped, but were still over 50%. As Senators Davis and Ellis and Representative Anchia pointed out, Defendants have not shown that those voters were informed of (1) the low rate of in-person voter impersonation fraud, (2) the limited universe of documents that were considered to be qualified photo ID under SB 14, or (3) the plight of many qualified and registered Texas voters who did not have and could not get such ID without overcoming substantial burdens. So while the Court is aware that legislators should be responsive to their constituents, the particular polls were not formulated to obtain informed opinions from constituents and, more importantly, polls cannot justify actions by the legislature which have the effect of infringing the right to vote in violation of the United States Constitution or the VRA. Defense counsel’s questioning noted that there have been few voter complaints since SB 14 was implemented in November 2013, indicating, they argue, that the electorate is not unhappy with SB 14 as implemented. However, the demographics of those likely to be burdened by SB 14 — the poor, minorities, disabled, and elderly — are persons unlikely to have the wherewithal to register a complaint in any officially meaningful way. The evidence does not support the proponents’ assertions that SB 14 was intended to increase public confidence or increase voter turnout. While those justifications are appropriate concerns of a state, the Court finds that the justifications do not line up with the content of SB 14. c. Racial Discrimination Senators Davis, Ellis, and Uresti and Representatives Anchia and Veasey testified that SB 14 had nothing to do with voter fraud, but instead had to do with racial discrimination. The legislature had been working on the voter ID issue for six years and Representative Martinez-Fischer had done quite a bit of fact-checking and had found that there was nó substance to the claims of in-person voter impersonation fraud, non-citizen voting, or improving election integrity related to the terms of the photo ID bills. Representative Anchia had served on a number of voter ID-related committees and was Chair of the Subcommittee to Study Mail-In Ballot Fraud and Incidence of Non-citizen Voting. He testified that they had done quite a bit of work in interim sessions and issued a report in 2008 showing that the incidence of non-citizen voting was very low. Other issues were also investigated in committee hearings, with testimony from state agencies, state officials, advocacy groups, and the Attorney General’s office. It was clear that in-person voter impersonations were almost non-existent. It was also clear that a photo ID law would hurt minorities. In our subcommittee, gosh, we went down to Brownsville and we took testimony on the very issue that you heard from Mr. Lara earlier, which was people — a lot of people, especially, in rural areas or along the border who were birthed by midwives or were born on farms, didn’t have the requisite birth certificates and were in limbo. We took a ton of testimony at UT Brownsville on that, and that was an issue of concern. Contrasting the legislature’s, willingness to barrel-through a voter ID law despite the lack of need and countervailing evidence, Representative Anchia noted that critically important issues such as the $27 billion budget shortfall and transportation funding did not get a select committee or an exemption from the two-thirds rule. He .stated, “I have not seen a bill other than this one get that kind of procedural runway.” •Senator Uresti complained that he had made it clear that SB 14 would hurt minorities and the legislators knew that when they passed it. He testified that he knew his district’s racial and ethnic makeup (many of his constituents live in coloni-as), and he knew the impact that SB 14 would