Marc Veasey v. Rick Perry

769 F.3d 890, 2014 WL 5313516
Court of Appeals for the Fifth Circuit·Decided October 14, 2014·No. 14-41127·Published·Cited by 62 cases

Opinions

EDITH BROWN CLEMENT, Circuit Judge:

Early voting in Texas begins on Monday, October 20. On Saturday, October 11 — just nine days before early voting begins and just 24 days before Election Day — the district court entered a final order striking down Texas’s voter identification laws. By this order, the district court enjoined the implementation of Texas Senate Bill 14 (“SB 14”) of the 2011 Regular [892] Session, which requires that voters present certain photographic identification at the polls. The district court' also ordered that the State of Texas (“State”) instead implement the laws that were in force before SB 14’s enactment in May of 2011. Based primarily on the extremely fast-approaching election date, we STAY the district court’s judgment pending appeal.

I.

SB 14 was signed into law on May 27, 2011, and its voter identification requirements became effective on January 1, 2012. 2011 Tex. Sess. Law Serv. Ch. 123 (West) (S.B.14). These requirements have been implemented in at least three prior elections.

On June 26, 2013, this lawsuit challenging SB 14 was filed. On Thursday, October 9, 2014 the district court foreshadowed its ultimate judgment, issuing an opinion saying that it intended to enjoin SB 14. The lengthy, 143-page opinion followed a nine-day bench trial. The district court opined that SB 14 is unconstitutional and violates the Voting Rights Act. But it did not issue a final judgment.

On Friday, October 10, the State filed an advisory requesting that the district court enter a final, appealable judgment. When the district court declined to do so by close of business on Friday, October 10, the State filed a petition for writ of mandamus or, in the alternative, an emergency motion for stay pending appeal. Upon the entry of the district court’s final judgment on Saturday, October 11, the State also filed a notice of appeal. Accordingly, we construed the State’s motion as an emergency motion for stay pending appeal and ordered that responses be filed within 24 hours. Five responses were filed.

II.

A stay pending appeal “simply suspends judicial alteration of the status quo.” Nken v. Holder, 556 U.S. 418, 429, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (internal quotation marks and alteration omitted). We consider four factors in deciding a motion to stay pending appeal:

(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.

Id. at 426, 129 S.Ct. 1749. “The first two factors of the traditional standard are the most critical.” Id. at 434, 129 S.Ct. 1749.

III.

This is not a run-of-the-mill case; instead, it is a voting case decided on the eve of the election. The judgment below substantially disturbs the election process of the State of Texas just nine days before early voting begins. Thus, the value of preserving the status quo here is much higher than in most other contexts.

A.

The Supreme Court has repeatedly instructed courts to carefully consider the importance of preserving the status quo on the eve of an election. In the similar context of determining whether to issue an injunction,1 the Supreme Court held that, [893] “[f]aced with an application to enjoin operation of voter identification procedures just weeks before an election, the Court of Appeals was required to weigh, in addition to the harms attendant upon issuance or nonissuance of an injunction, considerations specific to election cases and its own institutional procedures.” Purcell v. Gonzalez, 549 U.S. 1, 4, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006) (per curiam). One of these considerations is that “[c]ourt orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.” Id. at 4-5, 127 S.Ct. 5.2

Further, in the apportionment context, the Supreme Court has instructed that, “[i]n awarding or withholding immediate relief, a court is entitled to and should consider the proximity of a forthcoming election and the mechanics and complexities of state election laws, and should act and rely upon general equitable principles.” Reynolds v. Sims, 377 U.S. 533, 585, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (emphasis added). Accordingly, “under certain circumstances, such as where an impending election is imminent and a State’s election machinery is already in progress, equitable considerations might justify a court in withholding the granting of immediately effective relief in a legislative apportionment case, even though the existing apportionment scheme was found invalid.” Id.

The Supreme Court itself has declined to interfere with a fast-approaching election, even after finding that the ballots unconstitutionally excluded certain candidates. Williams v. Rhodes, 393 U.S. 23, 34-35, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968). The Court found on October 15, 1968 that:

Certainly at this late date it would be extremely difficult, if not impossible, for Ohio to provide still another set of ballots. Moreover, the confusion that would attend such a last-minute change poses a risk of interference with the rights of other Ohio citizens, for example, absentee voters.

Id. at 35, 89 S.Ct. 5.

Here, the district court’s decision on October 11, 2014 presents similar logistical problems because it will “be extremely difficult, if not impossible,” for the State to adequately train its 25,000 polling workers at 8,000 polling places about the injunction’s new requirements in time for the start of early voting on October 20 or even election day on November 4. The State represents that it began training poll workers in mid-September, and at least some of them have already completed their training. The State also represents that it will be unable to reprint the “election manuals that poll workers use for guidance,” and so the election laws “will be conveyed by word of mouth alone.” This “last-minute change poses a risk of interference with the rights of other [Texas] citizens,” Williams, 393 U.S. at 35, 89 S.Ct. 5, be[894] cause we can easily infer that this late retraining by word of mouth will result in markedly inconsistent treatment of voters at different polling places throughout the State.

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Marc Veasey v. Rick Perry, 769 F.3d 890, 2014 WL 5313516 (5th Cir. 2014).

769 F.3d 890 (Marc Veasey v. Rick Perry) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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