Texas Reply

8/2/2019 Texas Reply

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

STATE OF TEXAS Case No. 1:12-cv-00128

RMC-DST-RLW

Plaintiff,

vs.

ERIC H. HOLDER, JR.,

Attorney General of the United States

Defendant.

Introduction

When a litigant asserts that a state law was enacted with a racially

discriminatory purpose, he cannot compel testimony from state legislators absent

extraordinary instances. See Village of Arlington Heights v. Metropolitan

Development Corp., 429 U.S. 252, 268 (1977). Because judicial inquiries into

legislative or executive motivation represent a substantial intrusion into the

workings of other branches of government, a decision to plac[e] a decisionmaker

on the stand is usually to be avoided. Id. at 268 n. 18 (citations and internal

quotation marks omitted). Even when an extraordinary instance[] allows a court

to compel testimony from state legislators, their testimony frequently will be

barred by privilege. Id. at 268.

Case 1:12-cv-00128-RMC-DST-RLW Document 79 Filed 04/13/12 Page 1 of 43


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Arlington Heights reflects the longstanding unwillingness of federal and state

courts to inquire into the motivations and thought processes of individual

legislatorseven when legislative purpose is directly at issue. Courts may discern

legislative purpose from publicly available evidence, records of legislative

proceedings, and common sense. But forcing individual legislators to testify under

oath and submit to cross-examination is a line that should seldom if ever be crossed,

as it offends the dignity and autonomy of legislative bodies and rarely if ever leads

to useful evidence. Federal and state courts have consistently and emphatically

affirmed this principle for more than a century. Soon Hing v. Crowley, 113 U.S.

703, 710 (1885) ([T]he rule is general with reference to the enactments of all

legislative bodies that the courts cannot inquire into the motives of the legislators in

passing them, except as they may be disclosed on the face of the acts, or infer[able]

from their operation, considered with reference to the condition of the country and

existing legislation.); Flemming v. Nestor, 363 U.S. 603, 617 (1960) (Judicial

inquiries into Congressional motives are at best a hazardous matter, and when that

inquiry seeks to go behind objective manifestations it becomes a dubious affair

indeed.); Goldstein v. Pataki, 516 F.3d 50, 62 (2d Cir. 2008) (forbidding plaintiffs in

an eminent-domain dispute to depose pertinent government officials and discover

their emails, confidential communications, and other pre-decisional documents

because this would represent an unprecedented level of intrusion.); People ex rel.

Wood v. Draper, 15 N.Y. 532, 545 (1857) (The courts cannot impute to the

legislature any other than public motives for their acts.); Stahm v. Klein, 179 Cal.



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App. 2d 512, 518 (Dist. Ct. App. 1960) (Any attempt . . . by the judiciary to define

the personal thoughts of the legislator in voting for the passage of a law involves

such delicate and frustrating problems that it has always been frowned upon. It is

only when the law on its face or in its results shows an improper purpose, motive or

intent, and thereby unfairly and improperly damages a person, that the courts may

interfere.).1

Arlington Heights presents two discrete issues for this Court to resolve. The

first is whether this case presents the extraordinary instances needed to compel

depositions of state legislators. This inquiry is distinct from the question of

legislative privilege, and asks whether individual legislators can be targets of

discovery requests. The second issue is whether legislative privilege bars discovery

of legislators confidential communications. The scope of the privilege must be

resolved even if DOJ can demonstrate the extraordinary instances needed for

discovery from individual legislators. Arlington Heights is clear that legislator

testimony frequently will be barred by privilegeeven when a litigant satisfies

the extraordinary showing needed to take a legislators deposition.

DOJs submission fails to establish the extraordinary instances needed to

take discovery from individual legislators. First, DOJ contends that courts should

1See alsoWhitney v. Morrow, 112 U.S. 693, 696 (1885) (No impeachment can be had of the motives

of the legislature . . .); McGowan v. Maryland, 366 U.S. 420, 453 (1961) (rejecting Establishment

Clause challenge to Sunday-closing law, but noting that the Court would invalidate legislation if it

can be demonstrated that its purposeevidenced either on the face of the legislation, in conjunction

with its legislative history, or in its operative effectis to use the States coercive power to aid

religion); Stevenson v. Colgan, 27 P. 1089, 1090 (Cal. 1891) ([I]n passing upon the constitutionality

of a statute, the court must confine itself to a consideration of those matters which appear upon the

face of the law, and those facts of which it can take judicial notice.).



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allow legislator discovery whenever circumstantial evidence . . . could support a

finding of discriminatory intent. But this approach will make legislator

depositions routine (rather than extraordinary) whenever litigants bring

discriminatory-purpose claims. Almost every litigant who claims that a law was

enacted with an unlawful or discriminatory purpose will be able to point to

circumstantial evidence that could support a finding of discriminatory intent

otherwise his complaint would fail the plausibility standard required by Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), andAshcroft v. Iqbal, 556 U.S. 662

(2009). And DOJ refuses to acknowledge or define a category of cases in which

compelled legislative testimony will be precluded underArlington Heights. If DOJs

argument is accepted, legislator depositions will become the norm rather than the

exception not only in contested preclearance litigation, but in any other case

involving allegations of discriminatory or unlawful legislative purposes.

Second, even if DOJ were correct to assert that mere circumstantial

evidence of discriminatory intent suffices to warrant legislator discovery, it has

failed to present any evidence that SB 14 was enacted out of racially discriminatory

motives. DOJs account of SB 14s passage is riddled with factual errors and half-

truths, and offers only baseless accusations of racial motive trumped up by the

outvoted opponents of the law.

Third, section five assigns the burden of proof to the State of Texas in this

litigation; the State is responsible for establishing the absence of discriminatory

purpose under section 5. Texas should therefore retain the prerogative to choose



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the state-legislator witnesses (if any) that it wants to testify in support of its

request for judicial preclearance (assuming that those legislators are willing to

waive their privilege). If this Court concludes that Texas has failed to carry its

burden on account of insufficient legislator testimony, then it can simply deny

preclearance. But see Reno v. Bossier Parish School Bd., 528 U.S. 320, 336 (2000)

(Bossier Parish II) (suggesting that a regime that requires a State to prove the

absence of racially discriminatory purpose as a condition of preclearance may raise

serious constitutional questions). There is no reason to compel depositions from

supporters of SB 14 when the supporters of SB 14 bear the burden of proof in this

litigationand there is certainly no extraordinary reason that can overcome

Arlington Heightss strong presumption against compelled legislator testimony.

I. DOJHAS FAILED TO ESTABLISH THE EXTRAORDINARY INSTANCES

NEEDED TO COMPEL LEGISLATOR DISCOVERY UNDERARLINGTONHEIGHTS.

A. DOJs Claim That Every Contested Declaratory-Judgment

Action Brought Under Section 5 Constitutes ExtraordinaryInstances Cannot Be Reconciled WithArlington Heights.

DOJ remains unwilling to concede any limitation on its ability to depose state

legislators in section 5 proceedings. DOJs opening salvo repeats its earlier claim

that every section 5 preclearance proceeding qualifies as an extraordinary

instance[] underArlington Heights. See DOJ Statement at 2; see also DOJ Br. at 6

(asserting that any contested preclearance actions is per se an extraordinary

circumstance[] in which legislators may be called to the stand.) (citation and

internal quotation marks omitted). But this time DOJ presents a new argument to

support this claim: Every judicial preclearance proceeding is extraordinary



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(according to DOJ) because the vast majority of new voting procedures in section 5

jurisdictions are precleared by the U.S. Attorney General without the need for

litigation. See DOJ Filing at 2. In other words, DOJ thinks the relevant

denominator should include every change in voting law enacted by a section 5

jurisdiction, regardless of whether those changes wind up in litigation. From that

premise DOJ asserts that the mere existence of contested preclearance litigation is

the extraordinary circumstance[] needed to trigger compelled testimony from

legislators.

Litigants often try to avoid doctrinal obstacles by re-defining the relevant

denominator so that the ordinary seems extraordinary (or vice versa). See

generally Ernest A. Young, Foreign Law and the Denominator Problem, 119 HARV.

L.REV.148 (2005). But this Court must approach the denominator question in a

manner that is most faithful to the Supreme Courts opinion in Arlington Heights.

When Arlington Heights said that legislators may be called to testify only in

extraordinary instances, it was not referring to events that seem extraordinary

in relation to the thousands of mundane voting-law changes that section 5

jurisdictions submit for administrative preclearance every year.2 Rather,Arlington

Heights presupposes the existence of litigation in which someone claims that a law

or administrative decision was adopted with an unlawful or discriminatory purpose.

In those cases, a litigant must show something extraordinary before he can compel

state legislators to testify. The mere existence of discriminatory-purpose litigation

cannot qualify as an extraordinary instance[], and it cannot be defined as

2Arlington Heights was not a section 5 case.



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extraordinary by expanding the denominator to include all civil litigation. Nor

can this Court accept DOJs invitation to define every contested judicial

preclearance as extraordinaryan approach that preserves Arlington Heightss

limitations on legislator testimony only by arbitrarily privileging DOJ over litigants

who allege purposeful racial discrimination in other areas of government

decisionmaking.

B. DOJs Alternative Argument for Legislator Depositions Would Make

Compelled Legislator Testimony The Norm Rather Than The

Exception In Cases Involving Discriminatory-Purpose Claims.

Arlington Heights doesnt provide much guidance on what counts as an

extraordinary instance that triggers the need for compelled legislator testimony.

But it does require courts to reject any theory of extraordinary instances that

would allow compelled legislator testimony to become routine in discriminatory-

purpose litigation. At the very least,Arlington Heights means that a litigants bare

desire to uncover evidence of an unlawful legislative purpose cannot be enough to

compel testimony from state legislators. If it were, then testimony from state

legislators could be compelled in every case in which a litigant alleges a

discriminatory legislative purpose. DOJ is unwilling to concede this point, but it

must be acknowledged by anyone who wants to remain faithful to the language in

Arlington Heights. Courts cannot compel state legislators to sit for depositions

whenever a litigant wants to embark on a fishing expedition into legislative

purpose.



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ButArlington Heights extends well beyond this baseline restriction on fishing

expeditions. Legislator depositions are to be the exception, not the norm; this

requires a theory that distinguishes the extraordinary cases (in which legislators

may be compelled to testify about their motives for supporting a law) from the

ordinary cases (in which they may not). DOJ does not offer an adequate theory to

distinguish this case from the run-of-the-mill case in which a litigant asserts that

state legislation was enacted with an unlawful purpose. DOJs initial claim that

every contested judicial preclearance proceeding should open the door to legislator

depositions is not a genuine theory of extraordinary instances; it is a naked

assertion that litigants in section 5 preclearance should be allowed to depose state

legislators as a matter of course while litigants who allege discriminatory legislative

purpose in other contexts are held to a more restrictive standard.

In the alternative, DOJ asserts that legislator depositions should be allowed

whenever the record contains significant circumstantial evidence that could

support a finding of discriminatory intent. See DOJ Brief at 2; see also id. at 2-16.

But DOJ never explains why this can be deemed an extraordinary instance[]

underArlington Heights. It is commonplace for litigants to present circumstantial

evidence of unlawful legislative purpose from publicly available sources; many

decisions of the Supreme Court have relied on this type of evidence in nixing state

laws as unconstitutional. See, e.g., Loving v. Virginia, 388 U.S. 1, 11 (1967)

(invalidating a states anti-miscegenation statute after noting that it was passed

during the period of extreme nativism which followed the end of the First World



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War and characterizing the act as a measure[] designed to maintain White

Supremacy.); Hunter v. Underwood, 471 U.S. 222 (1985) (invalidating provision of

state constitution that disenfranchised those convicted of crimes involving moral

turpitude because records from the state constitutional convention showed that it

had been enacted with the intent of disenfranchising blacks); Weinberger v.

Wiesenfeld, 420 U.S. 636 (1975) (invalidating a provision of the Social Security Act

government payment of Mothers insurance benefits after concluding from the

legislative history that its purpose was to permit women to elect not to work and

devote themselves to care of their children); Church of Lukumi Babalu Aye v. City of

Hialeah, 508 U.S. 520, 534 (1993) (striking down local ordinance forbidding animal

sacrifice because [t]he record in this case compels the conclusion that suppression

of the central element of the Santeria worship service was the object of the

ordinances); Larson v. Valente, 456 U.S. 228, 25455 (1982) (invalidating provision

of a states charitable-solicitation act under the establishment clause because the

legislative history demonstrated that it was drafted with the explicit intention of

including particular religious denominations and excluding others); Edwards v.

Aguillard, 482 U.S. 578 (1987) (invalidating a state law requiring balanced

treatment for creation science and evolution science in public schools after

consulting the statutes legislative history and concluding that the law was enacted

with the purpose of promoting religion); McCreary County v. ACLU of Kentucky, 545

U.S. 844 (2005) (affirming a preliminary injunction against a display of the Ten

Commandments at county courthouses, after concluding from publicly available



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evidence that the counties purposes were to promote the Commandments religious

message).

Yet in none of these cases did the Supreme Court authorize the litigants to

compel testimony from lawmakers who enacted or supported the challenged

provisions, nor did the Supreme Court suggest that such testimony would have been

necessary or even relevant in determining legislative motive. Under the approach

urged by DOJ, however, litigants would have been entitled to compel testimony

from lawmakers in all of these cases (with the possible exception of Weisenfeld),3

merely because the record contained circumstantial evidence of a forbidden

legislative motive. That is surely not whatArlington Heights means when it limits

legislator testimony to cases presenting extraordinary circumstances, and it

cannot be reconciled with the federal and state courts longstanding disapproval of

forcing legislators to testify about their motives or purposes for supporting a law.

Much more than circumstantial evidence of forbidden motive is needed before

litigants can compel legislative testimony underArlington Heights.

1. Litigants Can Compel Testimony From Individual Legislators

Only When There Is No Evidence ofAny Legislative Purpose

Available In the Publicly Available Legislative Records.

While circumstantial evidence of forbidden motive is necessary, it is not

sufficient to compel legislator testimony. The mere existence of such evidence does

not by itself constitute exceptional instances because it is all too common for

litigants to trot out the very type of circumstantial evidence that DOJ offers in its

3 Because Weisenfeld involved a federal statute, it is possible that DOJ would admit that members of

Congress could assert a testimonial privilege under the Constitutions Speech and Debate Clause,

which would be unavailable to state legislators.



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submission: disparate impact on racial minorities (few laws have perfectly

symmetrical impact), rejected amendments from the laws opponents, and

complaints from outvoted lawmakers about perceived unfairness in the legislative

process. Indeed, the opponents of a particular legislative initiative can simply

challenge the resulting law in court, allege that it has an impact on members of

racial minoritieswhether purposeful or notand allege purposeful discrimination

by the bills authors. DOJs approach would empower litigants challenging these

laws to compel testimony from individual legislators who supported these laws, and

force them to explain their thought processes and justify their votes under oath.

Compelled legislator testimony, however, must be reserved for truly extraordinary

cases.

An extraordinary instance will arise only when there is both circumstantial

evidence of discriminatory purpose (from the racial impact and the historical

background of the law) and when the publicly available legislative history presents

no evidence whatsoeverwhether meaningful or suspectof the legislatures

motivations or intentions. Consider redistricting. Many times the boundaries of a

legislative district will be drawn in private setting; the public debates will concern

only whether to approve or reject a proposed map that was drawn outside the public

eye. If these privately drawn districts adversely affect the interests of discrete

racial groups, then it may be appropriate to depose legislators to discover their

purpose for drawing the boundaries in that particular manner. Without these

depositions, reviewing courts would be left at sea in deciding whether the district



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lines are the product of permissible motives (such as partisan considerations) or

impermissible motives (such as racial gerrymandering). One can also imagine

scenarios in which a legislature takes the extraordinary step of debating a law in

secret, or failing to maintain any publicly available records of the process

surrounding its enactment. If a law produced by a secretive process presents a

circumstantial case of invidious legislative purpose, then this may provide

grounds for compelled legislator testimony under the extraordinary instances

caveat of Arlington Heightsbecause there is no other publically available

information to explain why it was enacted. But litigants cannot take legislator

testimony for the purpose of undermining or questioning the legislative purposes

expressed in the statute or in the publicly available floor debates, as DOJ is

attempting to do.

Numerous decisions of the Supreme Court require this approach. First, the

Court has held many times that reviewing courts must accept the objectives

articulated by the legislature as the actual purposes of the statute absent

irrefutable evidence to the contrary. See, e.g., Minnesota v. Clover Leaf Creamery

Co., 449 U.S. 456, 471 n.15 (1981) (In equal protection analysis, this Court will

assume that the objectives articulated by the legislature are actual purposes of the

statute, unless an examination of the circumstances forces us to conclude that they

could not have been a goal of the legislation.) (citation and internal quotation

marks omitted); Flemming v. Nestor, 363 U.S. 603, 617 (1960) ([O]nly the clearest

proof could suffice to establish the unconstitutionality of a statute on [the] ground of



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[improper legislative motive].); Kansas v. Hendricks, 521 U.S. 346, 361 (1997)

([W]e ordinarily defer to the legislatures stated intent.); see also Cleveland Area

Bd. of Realtors v. City of Euclid, 88 F.3d 382, 387-88 (6th Cir. 1996) (reversing a

district courts total rejection of the Citys stated aesthetics rationale for an

ordinance regulating signs in residential neighborhoods as clear error when

considered in light of the limited inquiry that case law permits when reviewing

legislative motive.).

Clover Leaf Creamery is especially problematic for DOJ because the plaintiffs

in that case sought to undermine the publicly proclaimed legislative purpose of a

statute in the same manner that DOJ is trying to undermine that stated legislative

purposes of SB 14. The statute in Clover Leaf Creamery banned retail sales of milk

in plastic containers while allowing milk to be sold in paperboard milk cartons. The

plaintiffs attacked the law as reflecting a legislative purpose to discriminate against

out-of-state milk producers, claiming that the legislatures efforts to characterize it

as an environmental law were a sham. See Respondents Brief at 30 (The

legislative debates show that the Act is couched in laudable terms but founded in

discrimination against out-of-state interests.). They even cited passages from the

legislative history where members of the legislators expressed their disdain for out-

of-state businesses competing with in-state producers. See id. at 30-31 (quoting

Senator Ulland, a supporter of the bill, who said: I dont think there is anything

the matter with supporting the timber industry which is our third largest employer

in the state. I think in fact that is one of our responsibilities to keep a healthy



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economy in the state rather than importing petrochemicals and importing plastic

bottles from Chicago or wherever they are manufactured certainly the natural

resources arent from here.). This led the trial court to find that the Acts actual

bases were to isolate from interstate competition the interests of certain segments

of the local dairy and pulpwood industries. Minnesota v. Clover Leaf Creamery Co.,

449 U.S. 456 (1981).

But the Supreme Court would have none of it. The Justices rebuked the trial

court for failing to assume that the objectives articulated by the legislature are

actual purposes of the statute, unless an examination of the circumstances forces us

to conclude that they could not have been a goal of the legislation. Id. at 462 n. 7.

They noted that the legislative history supports the conclusion that the principal

purposes of the Act were to promote conservation and ease solid waste disposal

problems, and would not allow the plaintiffs to undermine this stated legislative

purposeeven though the plaintiffs produced credible evidence that some

legislators acted out of protectionist (and therefore unconstitutional) motives.

Wrote the Court: We will not invalidate a state statute under the Equal Protection

Clause merely because some legislators sought to obtain votes for the measure on

the basis of its beneficial side effects on state industry. Id. The principal

purposes from the statutes legislative history were deemed controlling and could

not be impeached by efforts to uncover the subjective motivations of individual

legislators. See also Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S.

582, 595, 598 (1961) (concluding that Pennsylvanias Sunday-closing law had not



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been enacted with the purpose of promoting religion, and basing this conclusion on

its analysis of publicly available legislative history without taking any testimony

from legislators); id. (noting that [the] legislators who favored the bill specifically

disavowed any religious purpose, and characterizing this legislative history as

particularly relevant to the decision to uphold thestatute).

Second, courts have repeatedly recognized that an individual legislators

impure motives are not to be attributed to the legislature as a whole. See Fletcher

v. Peck, 10 U.S. (6 Cranch) 87, 131 (1810) (noting a court of law cannot sustain a

suit brought by one individual against another founded on the allegation that the

act is a nullity, in consequence of the impure motives which influenced certain

members of the legislature which passed the law.); United States v. OBrien, 391

U.S. 367, 383-84 (1968) (What motivates one legislator to make a speech about a

statute is not necessarily what motivates scores of others to enact it.); Rosenstiel v.

Rodriguez, 101 F.3d 1544, 1552 (8th Cir. 1996) ([A]n isolated statement by an

individual legislator is not a sufficient basis from which to infer the intent of that

entire legislative body.); Hispanic Coalition on Reapportionment v. Legislative

Reapportionment Comm., 536 F. Supp. 578, 586 (D. Pa. 1982) (holding that

discriminatory statements made by the chairman of a city redistricting committee

were insufficient to prove discriminatory intent absent a showing that the state

legislative body adopted the chairmans views). DOJ does not assert (and cannot

possibly believe) that, even if a single legislator had a nefarious motive, the

legislator could unilaterally taint the entire legislature. Otherwise Texas would be



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unable to prove the absence of discriminatory purpose unless every legislator who

voted for SB 14 testified in open court regarding their reasons for supporting the

law. The purpose of SB 14 is not to be determined by the subjective motivations of

individual legislators, but by the public evidence of the statutes goals. Only when

this public evidence is absentand when there are valid reasons to suspect that

impermissible motivations may be afootmay litigants search for legislative

purpose by deposing individual legislators.

Throughout the public debate over SB 14, supporters repeatedly proclaimed

that its purposes were to detect and deter election fraud as well as promote public

confidence in the electoral system.4 And legislators specifically invoked the

Supreme Courts Crawford decision as a basis for their belief that SB 14 would help

deter and detect election fraud. Indeed, the Supreme Court has recognized that

photo-identifications requirements serve these goals. See Crawford v. Marion

County Election Bd., 553 U.S. 181 (2008). Crawford regards photo-identification

laws as legitimate fraud prevention devices even when enacted in States with no

4 For instance, Representative Aliseda closed out debate on SB 14 with the following statement:

Protecting the integrity of the ballot box was forefront in the minds of voters in

House District 35 and was one of my core campaign issues. Im honored that I was

able to play a role in helping it pass the Texas House. As a former county attorney

who prosecuted voter fraud, I know this bill will be a giant step forward in returning

confidence to the public and strengthening the security of our election process.

* * *

In 1990, as a young Democrat county attorney, I investigated and I prosecuted voter

fraud cases. I actually got convictions. I did not do that just to bring the perpetrators

to justice. I did it, primarily, because my citizens needed to believe that they had

clean and fair elections, and that someone was fighting for that. That is exactly why I

strongly support this bill.

Aman Batheja, Texas House Passes Voter ID Bill, FORT WORTH STAR-TELEGRAM, Mar. 24,

2011.



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documented cases of in-person voter impersonation; it suffices that photo-

identification reduces the risk of voter fraud that might occur in the future. See

Crawford, 553 U.S. at 194 (opinion of Stevens, J.) (upholding Indianas photo-

identification requirement even though [t]he record contains no evidence of [in-

person voter impersonation] actually occurring in Indiana at any time in its

history, because flagrant examples of such fraud in other parts of the country . . .

demonstrate that not only is the risk of voter fraud real but that it could affect the

outcome of a close election.). Whats more, Crawford endorsed these legislative

purposes without requiring any legislators to testify that these were their true

motives for supporting photo-identification requirements, even though the

opponents of the Indiana law attacked the fraud-prevention rationale as a sham.

For DOJ to suggest that the legislatures stated goal of preventing voter fraud may

be pretextual given the apparent dearth of evidence of actual voter fraud in Texas

reflects a refusal to accept the Supreme Courts binding pronouncement in

CrawfordAnd perhaps worse, it reflects a material omission of salient facts

because DOJ cites long outdated newspaper articles with stale election-fraud

prosecution statistics. See DOJs Brief at 11. And this Court cannot allow DOJ to

compel testimony from state legislators in the hope of undermining the publicly

evident purposes of SB 14 without contradicting the deference to publicly stated

legislative purposes that the Supreme Court established in Clover Leaf Creamery.

II. THE DEPARTMENT OF JUSTICE HAS FAILED TO PRESENT SUBSTANTIAL

CIRCUMSTANTIAL EVIDENCE OF DISCRIMINATORY PURPOSE.



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When asked to provide its best argument for compelling legislator

testimony in the teeth ofArlington Heights, DOJ proclaimed it had collected

substantial evidence of discriminatory purpose during the six-month

administrative review process. Transcript of Telephone Conference (April 3, 2012)

at 16, 1819. DOJ has now provided that purportedly substantial evidence to the

Court and the parties. Even if this Court were to accept DOJs questionable

assertion that litigants may depose state legislators against their will whenever it

can point to substantial circumstantial evidence of discriminatory legislative

intent, DOJ cannot meet even that lax standard. DOJ presents nothing that

indicates a racially discriminatory motive on the part of the Texas Legislature.

Part A refutes the mischaracterizations of evidence, misleading assertions, and

material omissions that appear throughout DOJs submission to this Court. Part B

addresses the purported evidence of legislative purpose in light of the three

categories in DOJs submission: anticipated effects, historical background, and

legislative process. See DOJ Statement at 4.

A. DOJs Misleading Accounts of S.B. 14.

In this section we will document and counter the hyperbole and half-truths

that appear throughout the Department of Justices submission. However this

Court decides to rule on the Arlington Heights issues, it is entitled to assistance

from counsel who must ensure that the Court bases its ruling on accurate factual

beliefs. The State hopes that this section will assist the Court in that endeavor.



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Each subpart in this section will begin by quoting a sentence from DOJs

submission followed by our response.

Records produced by the State of Texas indicate that S.B. 14 will

disenfranchise at least 600,000 voters

DOJs claim that S.B. 14 will disenfranchise at least 600,000 voters is

wildly off base. The 603,892 number reflects only the names that appear in the

States voter-registration database that could not be matched with a corresponding

name in the States drivers license database. This comes nowhere close to

identifying Texas registered voters who will need to obtain photo identification

under SB 14.

First, Texas law permits voters over the age of 65 and disabled voters to vote

by mail, and there is no photo-identification requirement for those who vote by mail.

Tex. Elec. Code 101.001. More than one-third of the 600,000 registered voters

without drivers licenses are over the age of 65 and eligible to vote by mail; these

voters cannot be considered disenfranchised by SB 14. DOJ has made no effort to

account for the elderly and disabled voters who do not need photo identification

under SB 14, nor has it analyzed the laws racial impact in light of this fact.

Second, the States inability to match a registered voter with an entry in

the States drivers license database does not indicate that the voter lacks a drivers

license. Many failures to match are the result of data-entry errors, or voters with

suffixes such as junior, or voters who provide nicknames to one database and given

names to the other. The same goes for a voter who lists his first name as James in

the voter database and Jimmy in the drivers database.



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Third, many voters who do not appear in the States drivers license database

possess other forms of government-issued photo identification required by SB 14.

Some have passports, concealed-handgun permits, or other forms of identification

that are accepted at the polls. DOJ refuses to acknowledge this group of voters by

dogmatically and misleadingly insisting that SB 14 will disenfranchise at least

600,000 voters.

Finally, a voter is not disenfranchised by a requirement to obtain photo

identification. Every eligible voter in Texas has the right to decide whether he or

she will acquire the identification needed to vote. Those who decide that the

benefits of voting are not worth the slight inconvenience associated with obtaining

photo identification, have not been disenfranchised or in any way deprived of their

right to vote. See Crawford, 553 U.S. at 197 (opinion of Stevens, J.). These voters

are no different from voters who have photo IDs but do not vote because they decide

that the time spent waiting in line at the polls is too high a price to pay for casting a

ballot that has an infinitesimally small chance of influencing the outcome of an

election. See id. at 197 (opinion of Stevens, J.). Disenfranchisement occurs only

when someone is prohibited from voting and unable to overcome a government-

imposed prohibition. See id. at 201-203 (noting that the opponents of Indianas

photo-identification law were unable to identify anyone who would be unable to cast

a ballot under the law).

[P]roponents of photo identification requirements . . . fanned unsubstantiated

fears about noncitizens voting illegally . . .



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The Office of Attorney General has prosecuted a case wherein a candidate

illegally registered foreign nationals to vote, lied to those individuals about their

eligibility to vote, and relied on those votes in an illegal attempt to win the election.

In that case, the defendant was not only found guilty of a felony, but according to

prosecutors, the defendants illegal conduct affected the outcome of the election.

The September 2011 data indicate that Hispanic registered voters were 46.5%

more likely than non-Hispanic voters (including Anglo, Black, and Asian

voters combined) to lack these forms of identification.

DOJ once again manipulates the denominator question in an attempt to

stack the deck in its favor. It derives its 46.5% more likely assertion from the fact

that 6.3 percent of Hispanic registered voters were not matched in the drivers

license database, while 4.3 percent of non- Hispanic registered voters were not

matched. Rather than calling this a 2% difference, DOJ calls it a 46.5% difference

by dividing the difference by 4.3 rather than 100. The reductio ad absurdum of

DOJs fuzzy math can be shown with this hypothetical. Suppose the data had

shown that 0.2% of Hispanics lacked drivers licenses but 0.1% of non-Hispanics

lacked drivers licenses. DOJ would say that Hispanics are 100% more likely

(rather than 0.1% more likely) to lack drivers licenses.

According to the most recent American Community Survey three-year

estimates released by the U.S. Census Bureau, 7.3% of Hispanic households in

Texas do not have an available vehicle, as compared to 3.8% of non-Hispanic

white households in the State. See U.S. Census Bureau, American CommunitySurvey 2008-2010, Table S0201 (2011) (Ex. 10).

The Census Bureau data that DOJ cites make no effort to separate Hispanic

citizens from non-citizens. Non-citizens are not eligible to vote in Texas or federal



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elections, and a large subset of the Hispanic population of Texas consists of non-

citizens. Non-citizens are less likely than citizens to own vehicles. So this gap in

vehicle ownership has no bearing on the racial impact of SB 14 unless it is

controlled to exclude non-registered voters or (at the very least) non-eligible voters.

Proponents of photo voter identification requirements deviated from ordinary

legislative procedures in order to circumvent legislative tools that ordinarily

allow minority legislators to protect their constituents. DOJ Statement at 2.

This passage represents a sneaky effort to conflate legislative minorities with racial

minorities. The 2/3 Rule in the State Senate is not designed to protect the interests

of black or Hispanic legislators or their constituents, but the interests of the

political minority on any issue in the legislature (rural vs. urban, pro-choice vs. pro-

life, gas producers vs. royalty owners, etc.). Until recently the 2/3 rule benefited the

Republican members of the Senate who persistently found themselves in the

minority. To suggest that legislative supermajority rules are designed to protect

the interests of racial minorities is transparently specious when the filibuster rule

in the U.S. Senate was so often invoked to thwart the progress of civil-rights

legislation in the 1950s.

In response, then-Chairman Leo Berman, in a breach of legislative protocol,

ordered Representative Veasey from the dais.

DOJ fails to disclose that Representative Veasey was not a member of the

Elections Committee during the 2007 legislative session, seeVeasey Decl. 13 (DOJ

Ex. 13), and that under the 2007 House Rules, the chair may recognize a member

of the house who is not a member of the committee to provide information to the

committee. Recognition is solely within the discretion of the chair and is not subject



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to appeal by that member. Texas House of Representatives Rule 23A. Following a

House of Representatives Rule can hardly serve to subvert normal procedural

protections, DOJ Statement at 7.

Senator Tommy Williams proposed a resolution to suspend the so-

called two-thirds rule for legislation relating to photo identification for

voting. Despite vehement opposition from racial minority Senators

about changing a time-honored Senate tradition for one particularly

divisive area of legislation, the Senate adopted this resolution. DOJ

Statement at 7.

DOJs Statement fails to acknowledge that during the debate over this

resolution, Senator Williams explained that there were literally hundreds of

instances where [the Texas Senate] has chosen to either ignore, or go around the

two-thirds rule to bring legislation to the floor. DOJ Ex. 15 at 10. And after the

Senate adoted the resolution, Senator Frasers voter-identification bill passed not

with a simple majority, DOJ Statement at 7but by a 21-10 vote.

Most notably, a first-time applicant must travel to a driver license office to

obtain an EIC. . . . While this may not appear at first glance to be asignificant barrier, the number and locations of driver license offices, the

limited availability of public transportation in Texas, and the vast geographic

scope of the State erect real barriers for many minority voters.

DOJ fails to inform this Court that Texas, because of its vast geographic scope,

has mobile drivers license facilities that pass through rural counties to issue

drivers licenses as well as election identification certificates.

The United States does not have sufficient information at this time to state aposition on whether Texas has or has not met its burden to establish that S.B.

14 was enacted without any discriminatory purpose.

Texas does not understand how DOJ can make this claim while

simultaneously insisting that the record in this case contains significant



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circumstantial evidence of discriminatory intent. Worse, paragraph 42 of DOJs

answer states that DOJ lacks knowledge or information sufficient to form a belief

as to whether Plaintiffs photo identification law was enacted with a racially

discriminatory purpose and therefore, denies the same.

DOJ seems to be asserting that the showing required to establish an

extraordinary circumstance under Arlington Heights is less than the showing

required to satisfy the pleading standards of Rule 11. Otherwise DOJ would have

denied our absence-of-discriminatory-purpose allegation by referencing the evidence

cited in its recent submission. And it is even more puzzling that DOJ would

continue to profess this agnosticism in its most recent submission to this Court.

How it logically possible for DOJ to claim that it lacks sufficient information . . . to

state a position on whether Texas has proven the absence of discriminatory

purpose, while it touts the significant circumstantial evidence of discriminatory

intent as a reason to compel legislator testimony?

Absent the United States targeted discovery regarding the legislative process

for S.B. 14, the State will essentially be permitted to present the proponents

testimony by way of untested legislative history without cross-examination.

DOJs lawyers need to account for the numerous Supreme Court rulings that

determine legislative purpose by relying exclusively on untested legislative history

without cross-examination. Their suggestion that there is something wrong with a

Court determining legislative purpose based on non-cross-examined legislative

history is staggering, as it would open the door to compelled legislator testimony in



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any case in which a litigant alleges an unlawful or discriminatory legislative

purpose.

During the House floor debate on S.B. 362, Representative Betty Brown

alleged voting by illegal aliens and held up a stack of papers to support herclaim, but the papers were later shown to be a mere prop.

Representative Betty Brown claimed that the stack of papers proved that

votes were cast by dead voters, not illegal aliens. Further, DOJ fails to disclose that

Representative Brown was no longer a member of the Texas House of

Representatives in 2011 and thus did not vote for SB 14.

Some opponents of S.B. 14 characterized the 82d Legislature in Texas as

having a tense racial climate with significant anti-Hispanic rhetoric.

In the 82d Legislature, 6 House Committee Chairmen were Hispanic, 6

House Committee Chairmen were African-American, 3 Senate Committee

Chairmen were Hispanic, and 2 Senate Committee Chairmen were African-

American. Even though Republicans held majorities in both houses, many of these

committee chairmen were Democrats.

Moreover, there is reason to believe that the purported reason for this bill, to

ensure electoral integrity and prevent voter fraud, may be pretextual given the

apparent dearth of evidence of actual voter fraud, even after a reported two

year investigation by the Office of the Texas Attorney General. Reportedly, this

enforcement effort by the Texas Attorney General led to only 26 prosecutions,

almost all of which involved black or Hispanic voters, and none of which

involved in-person voter impersonation that might be remedied by a photo

identification requirement. See Wayne Slater, Texas Attorney Generals Two-

Year Effort Fails to Unravel Large-Scale Voter-Fraud Schemes, DallasMorning News, May 18, 2008 (Ex. 25); see also Ralph Blumenthal, 2 Voter

Rights Cases, One Gripping a College Town, Stir Texas, N.Y. Times, May 28,

2008 (Ex. 26) (describing the impact of these investigations on minority

communities).

The Dallas Morning News story was published in 2008three years before



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the Legislature considered and adopted SB 14 and four years before DOJ filed its

Statement of Support with the Court. In fact, accurate, up-to-date crime statistics

show that the Texas Attorney Generals Office has successfully investigated or

prosecuted more than 50 cases of election fraud. Further, DOJs account of election

fraud is not only stale, it is also inaccurate. The Office of Attorney General did not

conduct a two-year investigation into voter fraud. Rather, the Office simply

conducts criminal investigations on an ongoing basis in response to election-fraud

referals from local elections officials, law enforcement, and the Secretary of State.

DOJ also falsely claims that the Office of Attorney General has not uncovered any

incidents of in-person election fraud. In fact, publically available information on the

Offices website reveals that the agencys investigations uncovered criminal

violations where a Harris County man used his deceased fathers voter registration

card to vote in an election and a Hidalgo County man presented another voters

registration card before illegally casting the voters ballot on Election Day.5

II. DOJ PRESENTS NO EVIDENCE THAT TEXAS ENACTED SB 14 WITH THE

PURPOSE OF HARMING RACIAL OR LANGUAGE MINORITIES.

A. Evidence of Disparate Racial Impact Is Not Evidence of

Discriminatory Purpose Unless There is a Strong Racial Disparity

Among Those Affected by the Law As Well as an Absence of

Legitimate Justification for the Law.

DOJ first claims that SB 14s supposed disparate impact on voters with

Spanish surnames qualifies as evidence of discriminatory racial purpose. See DOJ

Submission at 4-6. But DOJ errs badly by assuming that evidence of disparate

5SeeAttorney General Greg Abbott on the Department of Justice Denial of Voter ID Preclearance, at

http://www.oag.state.tx.us/oagnews/release.php?print=1&id=3991.



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impact always qualifies as circumstantial evidence of a discriminatory motive. It

is certainly true that evidence of disparate impact may sometimes provide evidence

of discriminatory purpose, but only in certain contexts. See Village of Arlington

Heights v. Metropolitan Housing Development, 429 U.S. 252, 265 (1977) (The

impact of the official action whether it bears more heavily on one race than another

may provide an important starting point.) (emphasis added) (citation and internal

quotation marks omitted). The disparate racial impact of the Grandfather Clause

provided evidence of discriminatory purpose, but only because it established a

voting qualification that was almost perfectly correlated with race, and because

there was no plausible rationale for the law other than a desire to disenfranchise

blacks. See, e.g., Guinn v. United States, 238 U.S. 347 (1915). But when Maryland

conditioned the right to vote on being a taxpayer assessed for at least $500, the

Supreme Court refused even to consider that its disparate racial impact might

reflect a racially discriminatory purpose:

The first confers the rights to register and vote free from any distinction on

account of race or color upon all taxpayers assessed for at least $500. We put

all question of the constitutionality of this standard out of view as it contains

no express discrimination repugnant to the 15th Amendment, and it is not

susceptible of being assailed on account of an alleged wrongful motive on the

part of the lawmaker or the mere possibilities of its future operation in

practice, and because, as there is a reason other than discrimination on

account of race or color discernible upon which the standard may rest, there is

no room for the conclusion that it must be assumed, because of the

impossibility of finding any other reason for its enactment, to rest alone upona purpose to violate the 15th Amendment.

Myers v. Anderson, 238 U.S. 268 (1915) (emphasis added). If DOJ is right to claim

that the mere existence of disparate impact qualifies as circumstantial evidence of



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purposeful racial discrimination, then Myers erred in upholding the Maryland

voting qualification without first requiring the state legislators to explain

themselves under oath and subject themselves to cross-examination.

Second, the data that DOJ cites do not prove that SB 14 has a disparate

impact on Hispanic registered voters, for all the reasons discussed in Subpart A.

DOJ grossly overstates the number of registered voters who lack photo

identification, and uses these flawed data to derive conclusions about SB 14s

impact that no one in the legislature could have had in mind at the time they voted

for the bill. More importantly, DOJ cites no evidence that supporter of SB 14 knew

(or hoped) that the drivers license data would reflect disparities between Hispanic

and non-Hispanic registered voters. None of the legislators who submitted

affidavits claimed that they presented any empirical data to the supporters of SB

14. They only offered unsubstantiated intuitions that certain racial or ethnic

groups were less likely to have photo identification than others, in the hopes of

baiting Senator Fraser (and other supporters of the bill) into speculating about the

bills racial impact and uttering statements that opponents of the bill could later

tout as evidence of discriminatory purpose. The drivers license data cannot be

evidence of discriminatory purpose unless the proponents of SB 14 knew of the data.

Indeed, Professor Rick Hasen, a vocal opponent of voter ID laws, has

published research concluding that the discriminatory effect of voter ID laws is not

only unknown, it may not exist:

Its not possible to show, [Professor Hasen] says, that many people

have actually been deterred from voting by these laws. In part, thats



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because many of these laws are new, and in part its because many of

the people who lack an ID card tend not to be interested in voting in

the first place.

David Firestone, Will Voter ID Laws Disenfranchise Democratic Voters?, NEWYORK

TIMES, Feb. 21, 2012 (reviewing Professor Hasens forthcoming book). DOJ refuses

to acknowledge this empirical uncertainty among voting-rights scholars, which

precludes any attempt to equate DOJs evidence of disparate impact with evidence

of discriminatory intent. If reputable scholars are unwilling to attest that voter-ID

laws have a disparate impact on minorities, DOJ cannot plausibly invoke the flawed

and incomplete data from the drivers license database as circumstantial evidence

that Texas enacted SB 14 with the purpose of harming Hispanic registered voters.

B. Incidents From Past Legislative Sessions Do Not Provide

Evidence That the 2011 Legislature, Whose Composition Differed

Markedly From The 2009 and 2007 Legislatures, Enacted SB 14 With

A Racially Discriminatory Purpose.

DOJ asserts that previous Legislatures consideration of other voter ID bills

provides circumstantial evidence that [SB 14] may have been enacted with a

discriminatory purpose. DOJ Statement at 6. DOJ points to bills introduced in

2007 and 2009 but does not account for the significant recent turnover in the

Legislatures membership. From 2007 to 2011, 62 members did not return to the

181-member Legislature, and from 2009 to 2011, 45 members did not return.

The incident involving Marc Veasey in the dais has been blown out of

proportion for the reasons we explained in Part A. And the 2/3 rule has frequently

been circumvented or ignored in the Texas Senate. Betty Brown, who DOJ accuses

of using an unrelated stack of papers to support her allegation that illegal aliens



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have been voting, was not even a member of the legislature that enacted SB 14.

And in all events, the use of props is not evidence of racial animus. The Texas

Attorney Generals Office has obtained a felony conviction in a case where evidence

showed that noncitizens improperly voted in Texas elections. SB 14 was enacted to

deal with that (and other) problems.

And DOJ conveniently ignores a critical piece of historical background that

occurred between the 2007 and 2009 legislative sessions: The Supreme Courts

ruling upholding Indianas photo-identification law as a nondiscriminatory

election regulations. See Crawford v. Marion County Election Bd., 553 U.S. 181,

203 (2008) (opinion of Stevens, J.) (upholding Indianas photo-identification

requirement as a neutral, nondiscriminatory regulation of voting procedure); id. at

205 (Scalia, J., concurring in the judgment) (finding that the Indiana law was a

generally applicable, nondiscriminatory voting regulation). Crawford was

carefully considered by the sponsors and supporters of SB 14 during the debates

over SB 14. See Jan. 25, 2011 Hrg Tr. 246-249, 252-53, 259; id; at 260 (SEN.

HUFFMAN: And did you, as you sat down with your staff and so forth in, you

know, pre-session, in the interim, and you started thinking about this bill and so

forth, did you and your staff take into consideration Crawford v. Marion and try to

follow the law and the rules the Supreme Court has laid out for us? SEN.

FRASER:Yes, without a doubt. Thats already been approved by the Supreme

Court, and obviously, we wanted to make sure we stayed within those

parameters.); id. at 323-24.



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When the Supreme Court of the United States has blessed photo-

identification requirements as nondiscriminatory election regulations, it strains

credulity for DOJ to suggest that a post-Crawford legislature acted out of racial

animus by adopting a law that the Supreme Court has specifically upheld as a

legitimate fraud-prevention device.

C. Legislative Process Considering SB 14

One of the most offensive aspects of DOJs submission is its effort to

characterize all minority legislators as opponents of SB 14. See, e.g., DOJ

Statement at 8 (Governor Perry and the Texas legislature took a series of steps in

January 2011 that eliminated the possibility that minority legislators could prevent

passage of a photo identification bill.). Indeed, DOJ treats the two African

American, five Hispanic, and one Asian legislators as if they did not even exist. Yet

Representative Aaron Pena was the House sponsor of SB 14, and Representatives

Jose Aliseda, Angie Chen Button, Stefani Carter, Larry Gonzales, and James White

served as co-sponsors. Several other minority Republican legislators, in addition to

these sponsors and co-sponsors, voted for SB 14, including Representatives Garza

and Torres. DOJ is well aware that not all racial minorities are Democrats, and

that Texas minorities, both inside and out of the Legislature, were on both sides of

the debate. In addition, Texas Democratic legislators of all races opposed SB 14,

almost without exception. The minority legislators who opposed SB 14 were all

elected Democrats who voted against a bill that largely split along party lines, and

their opposition provides no evidence of racial animus on the part of SB 14s

supporters.



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DOJ criticizes the Legislature for referring the bill to a special committee

formed solely to consider voter ID laws. See DOJ Statement at 8. But DOJ does not

disclose that the racial makeup of this committee was consistent with that of the

standing Elections Committeefour minorities and five whites. DOJ also fails to

acknowledge that SB 14 was voted out of the special committee by a vote of 6-2,

with two Hispanic legislators voting in favor of the bill. Nor does DOJ acknowledge

that SB 14 passed the full House with the support of two African-Americans, five

Hispanics, one Asian-American, and two Democrats. DOJ bizarrely suggests that

Representatives Aliseda, Gonzales, and Pena need to be quizzed on whether their

support for SB 14 reflects purposeful discrimination against minority voters. See

DOJ Statement at 14; see also Samuel Issacharoff, Is Section 5 of the Voting Rights

Act a Victim of Its. Own Success?, 104 COLUM. L. REV. 1710, 1728 (2004) (Why

should black voters of Georgia not be permitted the same degree of political

opportunity to form coalitions as black voters of New Jersey?).

DOJ also misleads this Court by implying that Democratic legislators and

their supporters were somehow excluded from the debate. The Senate record

demonstrates that SB 14s opponents called fourteen invited witnesses to testify

against the bill. DOJ suggests that supporters of the bill ignored these witnesses,

as if checking ones Blackberry is evidence of racial animus. See, e.g., DOJ

Statement, Ex. 16 (Representative Harless had a blackberry or phone with her

during the debate, and at times she seemed to be reading from it.). Witnesses

invited by SB 14s opponents to testify against the bill were thoroughly questioned



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by SB 14s supporters. The opposing witnesses raised concerns about the bills

possible impact on minority voters, and Legislators who supported the bill

demonstrated their concern by questioning the premises and facts articulated by

these witnesses. That these Legislators were unconvinced does not mean they were

unconcerned. Indeed, as we have noted, even commentators who oppose voter ID

laws remain unconvinced that voter ID laws have a discriminatory effect.

DOJs discussion of the amendments to the bill is similarly misleading. DOJ

claims that minority legislators proposed eighty amendments of which only seven

were ultimately included in SB 14. See DOJ Statement at 10. But the majority of

amendments from both supporters and opponents were rejected. See id. at Ex. 18.

When the record shows that the majority of amendments were rejected, it is difficult

to fathom how the fact that almost 10% of minority amendments were accepted is

evidence that minorities were excluded from the lawmaking process.

A closer look at the particular amendments hurts DOJ more than it helps.

DOJ complains that Senator Robert Duncan offered an amendment to count

provisional ballots of individuals who certify in an affidavit that they are indigent,

but that the amendment was removed from the bill in the House after passing the

Senate. DOJ Statement at 11. But Senator Duncan is a white Republican who

supported SB 14. That he offered this amendmentand the fact that it this

amendment was adopted by the full Senatemakes it impossible to infer that the

Senate acted with the goal of harming minority voters..



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DOJ also complains that Representative Borris Miles introduced an

amendment to target the bills voter-education program at low-income and minority

voters, but the amendment was removed by the conference committee after passing

the House. DOJ Statement at 11. But Representative Miles is an African-

American Democrat who opposed SB 14. That his amendment was adopted by the

full House (before it was removed by the conference committee) makes it impossible

to infer that the House acted with a racially discriminatory purpose. Finally, DOJ

complains that Representative Roberto Alanzos amendment, which would have

allowed any state identification to be sued for voting, was tabled. DOJ Statement

at 11. But DOJ Representative Alanzos amendment would have vitiated the

purpose of SB 14 by allowing voters to use their voter-registration cards, which lack

a photograph, as state-issued identification. If this qualifies as evidence of

discriminatory purpose, then no section 5 jurisdiction will ever be enable to enact

a photo-identification requirement.

DOJ criticizes Senator Fraser and other proponents of SB 14 for failing to

engage in any meaningful, substantive discussion concerning the burden that the

bill would impose on minority voters. See DOJ Statement at 10. But this is a

facially neutral law that was enacted to combat voter fraud; the opponents of SB 14

were trying to bait Senator Fraser and the bills supporters to making statements

about racial impact that they could offer as evidence of racially discriminatory

purpose in the preclearance proceedings. It was entirely appropriate for the bills

supporters to refrain from speculating on whether the law would have a disparate



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impact on racial groups; any comment would have been twisted or quoted out of

context by the laws opponents. Statements denyingthe laws racial impact would

have been trumpted as reflecting ignorance or deception (and therefore racial

animus) if opponents of the law would later uncover data showing that certain

groups were less likely to possess photo identification. Statements acknowledging

the laws racial impact would of course be construed by the laws opponents as

evidence of discriminatory purpose. They would attack SB 14 by saying that the

legislators knew that the law would disproportionately affect minorities and voted

for it anyway. Senator Frasers unwillingness to walk into their trap is not evidence

of racially discriminatory purpose. The full Senate debated the bill for hours and 14

witnesses were called to testify against it. This is not a bill that was passed without

meaningful, substantive discussion.

Finally, DOJ treats the Legislatures use of special procedures as ipso facto

evidence of racially discriminatory purpose. But there is no connection between the

use of these devices and actual discriminatory purpose, and DOJ makes no attempt

to link them. A legislatures eagerness in passing a facially neutral law does not

provide any evidence that the zeal is motivated by racial animus. Photo-

identification requirements are popular; a Lighthouse Opinion Polling & Research

Poll shows that they enjoy over 86% support among Texans, including 82% of blacks

and 83% of Hispanics. Senate Report, Committee of the Whole, Ex. 8 (Lighthouse

Opinion Poll). It is perfectly understandable for a popularly elected legislature to

fast-track legislation that enjoys broad public support (as well as the Supreme



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Courts approval)and to take every measure necessary to overcome a determined

legislative minority that is seeking to thwart the will of the people. Nor can a

decision to table an amendment be treated as evidence of racially discriminatory

purpose. Tabling an amendment means that means a majority of the legislature

does not like it, nothing more.

Another example is DOJs suggestion that the Committee of the Whole, a

procedure used by legislative bodies for over a century, somehow evinces a racially

discriminatory purpose. The use of this procedure may have drained political power

from Democrats by avoiding the two-thirds rule, but it actually empowered racial

minorities in the legislature. Convening the entire Senate improved openness,

transparency, and opportunities for racial minorities to participate in the

lawmaking process: If SB 14 had been heard by a standing Senate committee, it

would have most likely been referred to the Senate State Affairs Committee, which

has only three racial minority Senators among its members. Hearing SB 14 as a

Committee of the Whole ensured that all nine minority Senators could fully

participate at the committee stage. This participation at the committee stage is

significant because committees are the only place where the Senate rules allow for

witness testimony. Thus, all nine Senators were able to question witnesses. That

would not have been possible had the bill gone to a standing committee.

The use of this procedure also ensured that all supporters of SB 14

understood the oppositions concern for the possible effect on minority voters.

Fourteen witnesses were called to testify against SB 14. Instead of limiting witness



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testimony to a standing committee, every member of the Senate heard all the

witnesses reasons for supporting or opposing the bill, and then exercised their

judgment based upon an informed understanding of the bills positive and negative

attributes.

III. EVEN IF DOJPRESENTED CREDIBLE EVIDENCE OF DISCRIMINATORY

LEGISLATIVE MOTIVES,THIS COURT STILLSHOULD NOT COMPEL

TESTIMONY FROM SUPPORTERS OF SB14BECAUSE TEXAS BEARS THE

BURDEN OF PROOF IN THIS LITIGATION.

DOJs demands for legislator depositions are further weakened by the fact

that Texas bears the burden of proof. Section 5 requires covered jurisdictions to

establish the absence of discriminatory purpose before their voting laws can attain

preclearance. Reno v. Bossier Parish School Bd., 520 U.S. 471, 477 (1997). If this

Court concludes that Texas cannot carry its burden of proof without producing

testimony from the legislators who will not waive their privilege, then it can simply

deny preclearance. It should not compel legislator testimony that DOJ or this Court

may think necessary to support Texass claims in this case.

If DOJ bore the burden of proving discriminatory purpose, then its demands

to depose individual legislators would be more tenable. Yet in the vast majority of

discriminatory-purpose litigation, the plaintiff bears the burden of proving the

existence of nefarious legislative purpose, and even in these cases it is unheard of

for a court to compel testimony from individual legislators outside of redistricting.

We were unable to find any case in which a civil-rights plaintiff was permitted to

depose members of a state legislature against their will and quiz them over their

motives for enacting an allegedly discriminatory law. DOJ has not cited any case



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outside of voting-rights litigation in which this has occurred, and even the voting-

rights cases that DOJ cites do not indicate that the lawmakers were compelled to

testify against their will. DOJ wants a regime in which defendants and intervenors

in section 5 preclearance litigation get special accommodations in their quest to

depose state legislators, but section 5s unique burden-of-proof regime cuts against

DOJs position. It cannot be that civil-rights plaintiffswho bear the burden of

proving discriminatory legislative purposehave less opportunity to depose state

legislators then the defendants and intervenors in section 5 preclearance

proceedings, who carry no such burden.

CONCLUSION

The States motion for a protective order should be granted.



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Respectfully submitted.

GREG ABBOTT

Attorney General of Texas

DANIEL T. HODGE

First Assistant Attorney General

/s/ Jonathan F. Mitchell

JONATHAN F. MITCHELL

Solicitor General

ADAM W. ASTON

ARTHUR C. DANDREA

Assistant Solicitors General

209 West 14th Street

P.O. Box 12548

Austin, Texas 70711-2548

(512) 936-1695

Dated: April 13, 2012



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CERTIFICATE OF SERVICE

I hereby certify that on this day, April 13, 2012, I electronically filed this

notice with the Clerk of the Court using the CM/ECF system which will

electronically serve the following counsel of record:

Elizabeth Stewart Westfall

Jennifer Lynn Maranzano

Bruce I. Gear

Daniel J. Freeman

Voting Section

Civil Rights Division

U.S. Department of Justice

950 Pennsylvania Avenue, N.W.Washington, D.C. 20530

Counsel for Defendant

Chad W. Dunn

BRAZIL & DUNN

4201 FM 1960 West, Suite 530

Houston, TX 77068

(281) 580-6310

Email: [email protected]

Joseph Gerald Hebert

191 Somervelle Street

Suite 405

Alexandria, VA 22304

(703) 628-4673

Fax: (202) 736-2222


Counsel for Intervenors Kennie, et al.

Mark A. Posner

Robert A. Kengle

Lawyers Committee for Civil Rights Under Law

1401 New York Ave., NW, Suite 400

Washington, D.C. 20005

(202) 662-8389 (phone)

[email protected]



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[email protected]

Ezra D. Rosenberg

Regan Crotty

Dechert LLP

902 Carnegie Center, Suite 500Princeton, New Jersey 08540-6531

(609) 955 3222 (phone)

[email protected]

[email protected]

Wendy Weiser

Myrna Prez

Ian Vandewalker

The Brennan Center for Justice at NYU Law School

161 Avenue of the Americas, Floor 12

New York, New York 10013-1205

(646) 292-8329 (phone)

[email protected]

[email protected]

[email protected]

Gary Bledsoe

Law Office of Gary L. Bledsoe & Associates

316 West 12th St., Suite 307

Austin, Texas 78701

(512) 322-9992 (phone)[email protected]

Victor L. Goode

NAACP National Headquarters

4805 Mt. Hope Dr.

Baltimore, Maryland 21215-3297

(410) 580-5120 (phone)

[email protected]

Robert S. Notzon

The Law Office of Robert Notzon1507 Nueces St.

Austin, Texas 78701

(512) 474.7563 (phone)

[email protected]

Jose Garza

Law Office of Jose Garza



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7414 Robin Rest Dr.

San Antonio, Texas 98209

(210) 392-2856 (phone)

[email protected]

Counsel for Intervenors TSCNB and MALC

Debo P. Adegbile

Ryan P. Haygood

Dale E. Ho

Natasha M. Korgaonkar

Leah C. Aden

NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC.

99 Hudson Street

Suite 1600

New York, NY 10013

(212) 965-2200


FRIED, FRANK, HARRIS,

SHRIVER & JACOBSON LLP

Douglas H. Flaum

Michael B. de Leeuw

One New York Plaza

New York, New York 10004-1980

(212) 859-8000

Counsel for Intervenors TLYVEF, et al.

John K. Tanner

3743 Military Road, NW

Washington, DC 20015

202-503-7696

[email protected]

Laughlin McDonald

Nancy Abudu

Katie OConnorAmerican Civil Liberties Union Foundation, Inc.

230 Peachtree Street, NW

Suite 1440

Atlanta, Georgia 30303-1227

(404) 523-2721

(404) 653-0331 (fax)



43/43

[email protected]

[email protected]

[email protected]

Lisa Graybill

Rebecca RobertsonAmerican Civil Liberties Union Foundation of Texas

1500 McGowan Street

Houston, Texas 77004

(713) 942-8146

[email protected]

[email protected]

Penda Hair

Kumiki Gibson

Advancement Project

1220 L Street, NW

Suite 850

Washington, DC 20005

(202) 728-9557

[email protected]

[email protected]

Counsel for Intervenors TLBC, et al.

/s/ Jonathan F. Mitchell

JONATHAN F. MITCHELL


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