      Case: 14-41127          Document: 00512802898        Page: 1   Date Filed: 10/14/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                       Fifth Circuit

                                                                                   FILED
                                                                               October 14, 2014
                                            No. 14-41127
                                                                                 Lyle W. Cayce
                                                                                      Clerk
MARC VEASEY; JANE HAMILTON; SERGIO DELEON; FLOYD CARRIER;
ANNA BURNS; MICHAEL MONTEZ; PENNY POPE; OSCAR ORTIZ; KOBY
OZIAS; LEAGUE OF UNITED LATIN AMERICAN CITIZENS; JOHN
MELLOR-CRUMLEY; DALLAS COUNTY, TEXAS,

                 Plaintiffs - Appellees

TEXAS ASSOCIATION OF HISPANIC COUNTY JUDGES AND COUNTY
COMMISSIONERS,

                 Intervenor Plaintiffs - Appellees

v.

RICK PERRY, in his Official Capacity as Governor of Texas; NANDITA
BERRY, in her Official Capacity as Texas Secretary of State; STATE OF
TEXAS; STEVE MCGRAW, in his Official Capacity as Director of the Texas
Department of Public Safety,

                  Defendants - Appellants
--------------------------------------------------------
UNITED STATES OF AMERICA,

                  Plaintiff - Appellee

TEXAS LEAGUE OF YOUNG VOTERS EDUCATION FUND; IMANI
CLARK,

                  Intervenor Plaintiffs - Appellees

v.

STATE OF TEXAS; NANDITA BERRY, in her Official Capacity as Texas
Secretary of State; STEVE MCGRAW, in his Official Capacity as Director of
the Texas Department of Public Safety,
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                                            No. 14-41127


                   Defendants - Appellants
--------------------------------------------------------

TEXAS STATE CONFERENCE OF NAACP BRANCHES; MEXICAN
AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF
REPRESENTATIVES,

                  Plaintiffs - Appellees
v.

NANDITA BERRY, in her Official Capacity as Texas Secretary of State;
STEVE MCGRAW, in his Official Capacity as Director of the Texas
Department of Public Safety,

                    Defendants - Appellants
----------------------------------------------------------
LENARD TAYLOR; EULALIO MENDEZ, JR.; LIONEL ESTRADA; ESTELA
GARCIA ESPINOSA; MARGARITO MARTINEZ LARA; MAXIMINA
MARTINEZ LARA; LA UNION DEL PUEBLO ENTERO, INCORPORATED,

                 Plaintiffs - Appellees

v.

STATE OF TEXAS; NANDITA BERRY, in her Official Capacity as Texas
Secretary of State; STATE OF TEXAS; STEVE MCGRAW, in his Official
Capacity as Director of the Texas Department of Public Safety,

                Defendants - Appellants



                      Appeal from the United States District Court
                           for the Southern District of Texas


Before CLEMENT, HAYNES, and COSTA, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:



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                                  No. 14-41127
      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 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


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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 (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. “The first two factors of the traditional standard are the most
critical.” Id. at 434.
                                         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


      1 See Nken, 556 U.S. at 434 (“[T]here is substantial overlap between [the factors
governing stays pending appeal] and the factors governing preliminary injunctions;
not because the two are one and the same, but because similar concerns arise
whenever a court order may allow or disallow anticipated action before the legality of
that action has been conclusively determined.” (internal citation omitted)).

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Supreme Court held that, “[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
(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. 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 (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.



      2 In Purcell, the district court declined to enjoin a voter identification law on
September 11, 2006. Id. at 3. The plaintiffs appealed and, on October 5, the Court of
Appeals issued an injunction pending the outcome of the appeal. Id. The Supreme
Court vacated the Court of Appeals’ injunction on October 20. Id. at 5-6. Ultimately,
the Supreme Court’s action preserved the status quo of the state’s voting laws leading
up to the election, just as our decision here does today. See id. (“Given the imminence
of the election and the inadequate time to resolve the factual disputes, our action
today shall of necessity allow the election to proceed without an injunction
suspending the voter identification rules.”); id. at 5 (“In view of the impending
election, the necessity for clear guidance to the State of Arizona, and our conclusion
regarding the Court of Appeals’ issuance of the order we vacate the order of the Court
of Appeals.”)
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                                  No. 14-41127
      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 (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.
      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, because 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.
      In their response brief, the Veasey-LULAC plaintiffs concede that,
“[u]nder the district court’s injunction, perhaps some poll officials in some
isolated precincts might mistakenly turn a registered voter away because the
voter fails to comply with SB 14.” They discount this concern because “this
voter would also be disenfranchised were this Court to issue a stay.” But they
fail to recognize that inconsistent treatment of voters, even in just “some

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                                 No. 14-41127
isolated precincts,” raises a significant constitutional concern, particularly
when this disparate treatment is virtually guaranteed by the late issuance of
the injunction.
                                      B.
      The Supreme Court has continued to look askance at changing election
laws on the eve of an election. Just this term, the Supreme Court halted three
Court of Appeals decisions that would have altered the rules of this fall’s
general election shortly before it begins. See Frank v. Walker, 14A352, 2014
WL 5039671 (U.S. Oct. 9, 2014); North Carolina v. League of Women Voters of
N. Carolina, 14A358, 2014 WL 5026111 (U.S. Oct. 8, 2014); Husted v. Ohio
State Conference of N.A.A.C.P., 14A336, 2014 WL 4809069 (U.S. Sept. 29,
2014).
      In League of Women Voters, on October 1, the Court of Appeals for the
Fourth Circuit reversed the district court’s denial of a preliminary injunction
against North Carolina’s “elimination of same-day registration and prohibition
on counting out-of-precinct ballots” that were contained in a law that had been
on the books since August of 2013. 14-1845, 2014 WL 4852113, at *1, 4 (4th
Cir. Oct. 1, 2014).   The dissent argued that the injunction should not be
granted, partly because of the confusion it would cause in the fast-approaching
election. Id. at *21-23 (Motz, J., dissenting). The Supreme Court stayed the
resulting October 3rd injunction. League of Women Voters, 2014 WL 5026111.
      In Husted, on September 24, the Court of Appeals for the Sixth Circuit
affirmed the district court’s September 4th grant of a preliminary injunction
ordering “the restoration of additional early in-person . . . voting hours” that
had been eliminated by a statute enacted in February of 2014 and effective on
June 1, 2014. 14-3877, 2014 WL 4724703, at *1, 4 (6th Cir. Sept. 24, 2014).
The Supreme Court stayed this injunction. 2014 WL 4809069.


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                                      No. 14-41127
       In Frank, on September 12, the Court of Appeals for the Seventh Circuit
issued a stay of a district court injunction imposed in April of 2014 that
prevented the enforcement of Wisconsin’s voter identification laws. 14-2058,
2014 WL 4494153 (7th Cir. Sept. 12, 2014), reconsideration denied, 14-2058,
2014 WL 4827118 (7th Cir. Sept. 26, 2014). Five judges dissented from the
denial of rehearing en banc, arguing that changing the rules of the election at
that late date was unreasonable, whatever the merits of Wisconsin’s voter
identification laws. 2014 WL 4827118, at *3-6 (Williams, J., dissenting from
denial of rehearing en banc). The Supreme Court vacated the Court of Appeals’
stay of the injunction, pending the outcome of Supreme Court proceedings.
Frank, 14A352, 2014 WL 5039671.
       While the Supreme Court has not explained its reasons for issuing these
stays, the common thread is clearly that the decision of the Court of Appeals
would change the rules of the election too soon before the election date. The
stayed decisions have both upheld and struck down state statutes and affirmed
and reversed district court decisions, so the timing of the decisions rather than
their merits seems to be the key. 3 Moreover, Justice Alito’s dissent from the
stay in Walker casts some light on the Court’s rationale: “There is a colorable
basis for the Court's decision due to the proximity of the upcoming general
election. It is particularly troubling that absentee ballots have been sent out
without    any    notation     that    proof       of   photo   identification   must    be
submitted.” Frank, 2014 WL 5039671, at *1 (Alito, J., dissenting).
       Here, the district court’s alterations to the Texas voting laws were made
on October 11, 2014, even though the challenged laws became effective on
January 1, 2012 and had already been used in at least three previous elections.


       3  The Court of Appeals’ decision in Husted was stayed even though it affirmed a
district court decision. This fact undermines the plaintiffs’ argument that the main concern
in Purcell was giving proper deference to district court decisions.
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                                  No. 14-41127
We must consider this injunction in light of the Supreme Court’s hesitancy to
allow such eleventh-hour judicial changes to election laws.
                                       IV.
      Particularly in light of the importance of maintaining the status quo on
the eve of an election, we find that the traditional factors for granting a stay
favor granting one here.
                                       A.
      First, the State has made a strong showing that it is likely to succeed on
the merits, at least as to its argument that the district court should not have
changed the voting identification laws on the eve of the election. The court
offered no reason for applying the injunction to an election that was just nine
days away, even though the State repeatedly argued that an injunction this
close to the election would substantially disrupt the election process.          As
discussed in Section III above, the Supreme Court has instructed that we
should carefully guard against judicially altering the status quo on the eve of
an election. And, just this term, the Court has stepped in to prevent such
alterations several times. We find that the State has made a strong showing
that the district court erred in applying the injunction to this fast-approaching
election cycle.
      The other questions on the merits are significantly harder to decide,
given the voluminous record, the lengthy district court opinion, and our
necessarily expedited review. But, given the special importance of preserving
orderly elections, we find that this factor weighs in favor of issuing a stay.
                                       B.
      The State will be irreparably harmed if the stay is not issued. “When a
statute is enjoined, the State necessarily suffers the irreparable harm of
denying the public interest in the enforcement of its laws.”             Planned
Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406, 419
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                                       No. 14-41127
(5th Cir. 2013); accord Maryland v. King, 133 S.Ct. 1, 3 (2012) (Roberts, Circuit
Justice, in chambers); New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S.
1345, 1351 (1977) (Rehnquist, Circuit Justice, in chambers); Voting for Am.,
Inc. v. Andrade, 488 Fed. App’x 890, 904 (2012) (unpublished). If the district
court judgment is ultimately reversed, the State cannot run the election over
again, this time applying SB 14. Moreover, the State has a significant interest
in ensuring the proper and consistent running of its election machinery, and
this interest is severely hampered by the injunction, as discussed in Section III
above.
                                              C.
       The individual voter plaintiffs may be harmed by the issuance of this
stay. 4 But we find that this harm does not outweigh the other three factors.
See Planned Parenthood, 734 F.3d at 419 (“While we acknowledge that
Planned Parenthood has also made a strong showing that their interests would
be harmed by staying the injunction, given the State's likely success on the
merits, this is not enough, standing alone, to outweigh the other factors.”). Cf.
Burdick v. Takushi, 504 U.S. 428, 441 (1992) (“[T]he right to vote is the right
to participate in an electoral process that is necessarily structured to maintain
the integrity of the democratic system.”). Again, the first two factors are the
most critical, Nken, 556 U.S. at 426, and we have already determined that
these two factors favor granting a stay.
                                              D.
       Finally, given that the election machinery is already in motion, the
public interest weighs strongly in favor of issuing the stay. As explained in
Section III above, the State represents that it will have to train 25,000 polling


       4 The State contends that no individual voter plaintiffs would actually be harmed by
a stay. But, at this time, we decline to decide the fact-intensive question of which individual
voter plaintiffs would be harmed.
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                                  No. 14-41127
officials at 8,000 polling stations about the new requirements. Inconsistencies
between the polling stations seem almost inevitable given the logistical
problem of educating all of these polling officials within just one week. These
inconsistencies will impair the public interest.
                                        V.
      The State’s emergency motion for stay pending appeal is GRANTED, as
is its motion to file a brief exceeding page limits.
      The State has also moved that we maintain its emergency motion for
stay pending appeal under seal. The State’s motion contains very few sensitive
materials; instead, it cites and quotes a limited number of materials that were
filed under seal in the District Court. Rather than maintain the entire motion
under seal, the references to the sealed materials should instead be redacted
by the State. The State’s motion is GRANTED in that the unredacted version
of the motion for stay pending appeal shall be maintained under seal. The
State is DIRECTED to file a redacted version of its motion by October 15, 2014.




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                                 No. 14-41127
GREGG COSTA, Circuit Judge, concurring in the judgment:
      The district court issued a thorough order finding that the Texas voter
ID law is discriminatory. We should be extremely reluctant to have an election
take place under a law that a district court has found, and that our court may
find, is discriminatory. As always, however, we must follow the dictates of the
Supreme Court. In two recent decisions, it stayed injunctions issued based on
findings that changes in an election law were discriminatory.         See North
Carolina v. League of Women Voters of N. Carolina, 14A358, 2014 WL 5026111
(U.S. Oct. 8, 2014); Husted v. Ohio State Conference of N.A.A.C.P., 14A336,
2014 WL 4809069 (U.S. Sept. 29, 2014). It also lifted the Seventh Circuit’s stay
of a district court’s order in place since the spring that enjoined Wisconsin’s
voter ID law. See Frank v. Walker, 14A352, 2014 WL 5039671 (U.S. Oct. 9,
2014). I agree with Judge Clement that the only constant principle that can
be discerned from the Supreme Court’s recent decisions in this area is that its
concern about confusion resulting from court changes to election laws close in
time to the election should carry the day in the stay analysis. The injunction
in this case issued even closer in time to the upcoming election than did the
two out of the Fourth and Sixth Circuits that the Supreme Court recently
stayed. On that limited basis, I agree a stay should issue.




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