IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT ...

IN THE UNITED STATES DISTRICT COURTEASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

BARBARA LEE, et al.,

Plaintiff,

v.

VIRGINIA STATE BOARD OF ELECTIONS, et al.,

Defendants.

No. 3:15CV357 HEH

DEFENDANTS’ FINDINGS OF FACTS AND CONCLUSIONS OF LAW

ARENT FOX, LLPMark F. (Thor) Hearne, II(admitted pro hac vice)112 S. Hanley Road, Suite 200Clayton, MO 63105Tel: 314.296.4000Facsimile: 202.857.6395Email: [email protected]

Dana J. Finberg (VSB # 34977)55 Second Street, 21st FloorSan Francisco, CA 94105Telephone: 415.757.5500Facsimile: 415.757.5501Email: [email protected]

Attorneys for Defendants

Case 3:15-cv-00357-HEH-RCY Document 172 Filed 02/18/16 of 88 PageID# 2632

TABLE OF CONTENTSPage

i

INTRODUCTION..........................................................................................................................1

PROCEEDURAL HISTORY.........................................................................................................2

FINDINGS OF FACT ....................................................................................................................6

I. The Democrat Party lacks standing. .......................................................................6

II. Virginia elections are governed by race-neutral laws and regulations and conducted by bi-partisan boards and election officials. .........................................6

A. Virginia adopted race-neutral laws to govern its elections.........................6

B. Virginia elections are conducted by bi-partisan election boards and bi-partisan teams of election officials.......................................................11

C. The Board and Department diligently implemented Virginia’s election law to assure that every Virginia voter has opportunity to vote and to obtain a free photo identification card. ..................................14

D. The Board and Department maximized resources to educate voters about the election law at issue. .................................................................18

E. Almost every eligible Virginia voter possesses at least one form of identification document necessary to vote and those few Virginians that lack photo identification can easily obtain one for free.....................21

III. Virginia reformed its election laws, including voter identification requirements, to provide for the fair, honest and just administration of elections. ...............................................................................................................24

A. The Help America Vote Act.....................................................................24

B. The Carter-Baker Commission on Federal Election Reform ...................25

C. Following the recommendations of Carter-Baker a number of states adopted election reforms including requirements that a voter provide photo identification before a ballot is counted. ...........................27

D. Virginia reformed its election law to require a person to provide identification documents before casting a ballot that will be counted. ....................................................................................................28

E. Virginia reformed its election laws in response to broad public support for a requirement that voters provide photo identification and to address concerns about vote fraud.................................................30

F. Plaintiff’s contention that Virginia adopted its voter identification requirements for an invidious discriminatory purpose is without merit..........................................................................................................35

IV. Virginia’s 2013 voter identification law is not the result of invidious discrimination by long-gone generations. ............................................................36


TABLE OF CONTENTSPage

ii

V. Documented instances of vote fraud validate Virginia’s interest in implementing reasonable non-discriminatory preventative measures..................38

A. Voter registration fraud occurs. ................................................................39

B. Ineligible persons on voter rolls include those not citizens......................39

C. Vote fraud occurs at the polling place. .....................................................42

D. Photo identification requirements enjoy broad bi-partisan support. ........49

E. Photo identification requirements are broadly supported by voters themselves. ...............................................................................................49

CONCLUSIONS OF LAW..........................................................................................................50

I. The three plaintiffs do not have standing to challenge Virginia’s voter identification requirements. ..................................................................................50

II. Virginia’s rule requiring a person to reliably identify himself before casting a ballot does not violate the First or Fourteenth Amendment. .................53

A. Virginia’s voter identification requirement satisfies the Supreme Court’s Burdick standard of review..........................................................55

B. Virginia has a compelling interest in preserving the integrity of its election process and Virginia’s General Assembly had many legitimate reasons to require a person to provide photo identification before casting a ballot. .......................................................57

C. Virginia’s voter identification requirements are not the result of past discrimination....................................................................................68

III. Virginia’s voter ID law does not violate Section 2 of the Voting Rights Act. .......................................................................................................................69

A. Plaintiffs premise their Section 2 challenge on a theory contrary to the text and intent of Section 2. ................................................................70

B. Plaintiffs fail to show that Virginia’s voter ID law is a proximate cause of minorities having less opportunity to participate. ......................74

C. Plaintiffs’ Section 2 theory violates the Constitution...............................79

CONCLUSION ............................................................................................................................83


1

INTRODUCTION

In anticipation of the 2016 general election the Democrat party and allied interest groups

are challenging the rules under which the 2016 election will be conducted. Voter identification

requirements, early voting, same-day voter registration, and felon re-enfranchisement (among

other issues) are the subject of ongoing federal litigation in a number of states including Ohio,

North Carolina, Texas and Wisconsin.1 The litigants in these other cases, as do the plaintiffs

here, ask federal judges to invalidate provisions of state law governing the conduct of upcoming

elections. In all these cases, as here, the litigants claim the challenged provisions of state

election law impermissibly burden the ability of certain Democrat voting blocs (minorities,

felons and “young voters”) to participate in the election. The litigants contend Republican-

controlled legislatures adopted these provisions for the partisan purpose of enhancing the

Republican party’s electoral prospects.

The plaintiffs bringing this lawsuit ask this Court to invalidate Virginia’s law requiring a

person to provide photo identification documenting the person to be an eligible voter.

We explain in a more fulsome detail below why this challenge to Virginia’s voter

identification law fails. However, the short answer is this: the Plaintiffs’ challenge fails because

1 See, Ohio State Conference of NAACP v. Husted, 43 F.Supp.3d 808 (S.D. Ohio, 2014), aff’d, 768 F.3d 524 (6th Cir. 2014), stay granted, 135 S. Ct. 42 (2014). Husted challenged Ohio legislation that prevented individuals from registering and voting in the week before Election Day. NAACP v. McCrory, 997 F. Supp. 2d. 322 (M.D. N.C. 2014) (McCrory I) McCrorychallenged North Carolina’s voter identification requirements and requirement that voters cast ballots in their designated precinct and allowed early voting during only a limited period before Election Day. Frank v. Walker, 17 F. Supp. 3d 837 (E.D. Wis. 2014) and 768 F.3d 744 (7th Cir. 2014). In Frank Judge Easterbrook of the Seventh Circuit held Wisconsin’s voter identification law (which is more stringent than Virginia’s law) did not violate the Equal Protection Clause nor did it violate Section 2 of the Voting Rights Act. Veasey v. Perry, 2014 WL 5090258 (S.D. Tex. 2014), and 769 F.3d 890 (5th Cir 2014). Veasey is a challenge to Texas’s voter identification law. Unlike Virginia, Texas requires voters to provide only a very limited number of identification documents. The district court enjoined the law but the Fifth Circuit stayed the injunction.


2

Virginia’s voter ID law is more lenient than Indiana’s voter ID law and the Supreme Court

upheld Indiana’s law in Crawford v. Marion County Elec. Bd., 553 U.S. 181 (2008). Similarly,

Virginia’s voter ID law is more lenient than Wisconsin’s voter ID requirements are and the

Seventh Circuit upheld Wisconsin’s voter ID law in Frank v. Walker, 768 F.3d. 744 (7th Cir.

2014). Similarly, in NAACP v. McCory, 2016 WL 204481 (M.D.N.C. 2016) (McCrory II), a

federal district court in North Carolina refused to enjoin North Carolina’s voter ID law.

Plaintiffs present no facts nor any authority that allow this Court to ignore the reasoning

and holding of Crawford, Frank and McCrory II and invalidate Virginia’s voter ID law while

stricter and more burdensome voter ID laws were upheld by these other courts. As we show

below, the three plaintiffs lack standing and, to the extent we consider their Equal Protection

Clause and Section 2 Voting Rights Act challenge, those challenges fail.

PROCEEDURAL HISTORY

Two individual political operatives (Lee and Aida) and the Democrat Party of Virginia

(DPV or Democrat Party) filed this lawsuit. These three plaintiffs ask this Court to invalidate

provisions of Virginia election law requiring, inter alia, that a person identify himself before his

ballot will be counted. Plaintiffs also complained of long lines at polling places and asked this

Court to order convicted felons automatically re-enfranchised upon completion of their criminal

sentence. Plaintiffs have since dismissed the long lines and felon claims with prejudice. Thus,

as currently composed, this lawsuit challenges only those provisions of Virginia’s law requiring

a person to provide identification before a ballot is counted.2

2 The distinction between casting and counting a ballot is important. Virginia allows a person

register to vote and cast a ballot without ever providing any form of identification. But a person lacking identification is given a provisional ballot that will only be counted if the person casting the ballot later provides acceptable identification.


3

Plaintiffs sued the Virginia State Board of Elections (the Board or BOE), the Virginia

Department of Elections (the Department), the members of the Board and the Commissioner of

the Department in their official capacity. Plaintiffs claim Virginia’s election law: (1) violates

Section 2 of the Voting Rights Act3, (2) violates the First Amendment and Equal Protection

Clause of the Fourteenth Amendment due to “disparate treatment of individuals without a

rational basis,” (3) is unconstitutional “partisan fencing,” (4) is “intentional discrimination” by

the Virginia General Assembly “abridg[ing] and deny[ing] the right to vote for African

Americans and Latinos on account of race;” and (5) constitutes “intentional discrimination on the

basis of age” that “abridge[s] and den[ies] the right to vote for young voters on the account of

age” violating the Twenty-sixth Amendment.4 Counts Four and Five allege “the General

Assembly … intended, at least in part, to suppress the number of votes cast by African

Americans and Latinos” and “the General Assembly intended … to suppress the number of votes

cast by young voters.”5

The Board and Department asked this Court to dismiss Plaintiffs’ amended complaint

under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6).6 We said dismissal was proper

because Lee, Aida and the DPV lacked standing and failed to state a claim upon which relief can

be granted. Lee and Aida possess the requisite identification documents necessary to vote and

the Democrat Party did not identify any member of the Party (or, for that matter, any person)

3 Voting Rights Act of 1965, §4(a), 79 Stat. 438. The Voting Rights Act was previously

codified as 42 U. S. C. §1973 et. seq., but has been re-codified as 52 U.SC. §10301, et. seq.

4 Amended Compl., Dkt. No. 36, pp. 33-38.

5 Amended Compl., Dkt. No. 36, p. 36, para. 119 and p. 37, para. 124.

6 Motion to Dismiss, Dkt. No. 48.


4

who is an eligible Virginia voter who had been (or would be) denied the right to vote by reason

of the challenged provisions of Virginia law.

After we filed our motion to dismiss, Plaintiffs voluntarily dismissed with prejudice their

claims about felon re-enfranchisement and long lines.7 Our motion to dismiss was briefed and

argued and this Court granted-in-part and denied-in-part our motion. This Court held Counts

One and Two survive 12(b)(6) scrutiny as to the challenge to Virginia’s voter identification law

but this Court dismissed the long lines claim and dismissed Counts Four and Five entirely.8 This

Court further held that Count Three, alleging “partisan fencing,” was a restatement of Count

Two.9

Plaintiffs sought reconsideration under Rule 59(e).10 This Court agreed to reconsider its

decision dismissing Counts Four and Five noting, “Plaintiffs offer authority bearing directly on

the critical traceability element of standing in the election law context which could arguably

convince the court that its initial impression was in error.”11 This Court ordered “further briefing

and consideration of the standing issue on Counts IV and V.”12 And, after reconsidering its

decision to dismiss Counts Four and Five, this Court found the Plaintiffs’ “allegation of

7 Dkt. No. 97 and Dkt. No. 118. Plaintiffs dismissed their long lines claim pursuant to terms

of a consent decree. Dkt. No. 117.

8 Memorandum Opinion, Dkt. No. 110; Order, Dkt. No. 111.

9 Id. at 20 (Count Three is “Count Two in a slightly different wrapper and it will be treated accordingly. *** The term ‘partisan fencing’ does not create an independent cause of action aside from a typical First Amendment and Equal Protection Clause claim.”).

10 Dkt. No. 124, p. 1. Plaintiffs asked “this Court to reconsider its dismissal of Counts IV and V … [and to] reinstate those claims.”

11 Order, Dkt. No. 126.

12 Id. This Court’s order directed Defendants to file their brief on Monday, January 25. But, in light of the major winter storm that struck the East Coast on January 23 and 24, we asked the Court to extend the deadline one-day until Tuesday, January 26. Dkt. No. 128.


5

intentional discrimination by the General Assembly is traceable to the named Defendants [the

Board and the Department] by virtue of their statutory obligation to enforce the voter ID law.”13

This Court concluded, “though the factual allegations underpinning Counts IV and V are very

thin, taken in the light most favorable to the Plaintiffs, they are enough to create a facially

plausible claim. Accordingly, Counts IV and V survive review under Rules 12(b)(1) and

(b)(6).”14 The Court ordered Counts Four and Five reinstated.

After discovery the Board and the Department asked this Court to enter partial summary

judgment under Rule 56.15 Summary judgment is proper because the Democrat Party lacked

associational standing to bring an Equal Protection Clause challenge or a Section 2 Voting

Rights Act challenge on behalf of any individual because the Democrat Party had not identified

any individual member aggrieved by the challenged provisions of Virginia law. The two

individuals, Lee and Aida, similarly lacked standing to assert an Equal Protection Clause or

Section 2 Voting Rights Act challenge for some hypothetical person who is not a party. And the

challenged provisions of Virginia law do not burden Lee’s or Aida’s ability to vote because Lee

and Aida possess the identification documents and have in fact voted and their ballots have been

counted. This Court ruled the Board’s and the Department’s motion for partial summary

judgment will “be reserved for argument post-trial as part of argument on the merits.”16

Trial is scheduled to commence February 22, and this Court directed the parties to

provide pre-trial statements of fact and conclusions of law by February 17.

13 Memorandum Order, Dkt. No. 136, p. 2.

14 Memorandum Order, Dkt. No. 136, p. 3.

15 Dkt. No. 146.

16 Order, Dkt. No. 150.


6

FINDINGS OF FACT

I. The Democrat Party lacks standing.

Defendants incorporate by reference their Statement of Undisputed Facts regarding the

Democrat Party’s lack of associational standing in Defendant’s motion for partial summary

judgment, filed February 5, 2016. In the interest of brevity, those undisputed facts will not be set

repeated here (but Defendants reserve the right to expand on those facts in any post-trial briefing

requested by the Court).

II. Virginia elections are governed by race-neutral laws and regulations and conducted by bi-partisan boards and election officials.

A. Virginia adopted race-neutral laws to govern its elections.

1. To vote in Virginia a person must be: (i) “18 years of age,” (ii) “a resident of the

Commonwealth and of the precinct in which he offers to vote;” and, (iii) “a

registered voter.”17 “Any person who is not registered to vote, but would

otherwise be a qualified voter, is entitled to register to vote….”18 Virginia

requires no identification of any type to register to vote and a person may register

to vote in-person, by mail or over the internet.19

2. While Virginia requires no identification or proof of eligibility to register to vote,

Virginia does require a voter to provide one of several forms of valid

identification before a ballot cast at a polling place is counted. Acceptable

identification includes, inter alia, a Virginia driver’s license, passport, any other

17 Va. Code §24.2-101 (definition of “Qualified Voter”). Virginia excludes a person

“convicted of a felony” from being a qualified voter unless the Governor has restored their right to vote. Those adjudicated to be mentally incapacitated are also excluded from being a qualified voter.

18 Va. Code §24.2-401.

19 See generally, Va. Code. Chapter 4 §24.2-400 through §24.2-470.


7

photo identification issued by the Commonwealth, one of its political subdivisions

or the United States. Student identification provided by any public or private

“institution of higher education located in the Commonwealth” or any photo

identification issued by the person’s employer is acceptable.20

3. A “valid” form of identification is a document (i) that appears to be genuinely

issued by the agency or issuing entity appearing upon the document, (ii) the

bearer of the document reasonably appears to be the person whose photograph is

contained thereon, and (iii) the document shall be current or have expired within

the preceding 12 months.21

4. Any person lacking one of the specified forms of identification may obtain a

photo identification card without cost from the general registrar’s office or from

the Department. There are 133 general registrars throughout Virginia who will

provide a free photo identification card. To obtain a free photo identification card

the person need only sign an application affirming their identity.22

5. Unlike other states with photo identification requirements, a Virginia voter does

not need to provide any underlying documents (such as a birth certificate) to

establish identity and obtain a free photo identification card.

20 Va. Code §24.2-643.B. A provisional ballot is identical to a normal ballot in all respects. A provisional ballot is placed in a separate envelope and counted once the voter’s identity is confirmed.

21 See http://law.lis.virginia.gov/admincode/title1/agency20/chapter40/section10/.

22 1 VAC 20-40-90; see also 2013 Va. Laws Ch. 725 (SB 1256).


8

6. A person presenting themselves at a polling place to cast a ballot who lacks any of

the specified identification documents will be given a provisional ballot.23 “[A]n

officer of election, by written notice given to the voter, shall … inform a voter

voting provisionally … that he may submit copy of one of the forms of

identification specified … to the electoral board by facsimile, electronic mail, in-

person submission, or timely United States Postal Service or commercial mail

delivery, to be received by the electoral board no later than noon on the third day

after the election.”24

7. Virginia goes even further to make sure very eligible voter has opportunity to cast

a ballot that will be counted. Virginia allows voters to cast ballots without

needing to go to a poll on Election Day.25 Any registered Virginia absent from

their county on Election Day, students and the spouses of students, members of

the military, any person whose disability, illness or pregnancy prevents him (or

her) from going to the polls and any person confined to jail awaiting trial or

sentenced to jail due to a misdemeanor may vote absentee.26

8. Virginia provides for “emergency” absentee ballots to “any person registered and

otherwise qualified to vote who becomes incapacitated within seven days of the

election or … who becomes hospitalized [within fourteen days before the

23 Va. Code §24.2-643.B.

24 Id. §24.2-653.A.

25 Id. §§24.2-700 through 24.2-713.

26 Id. §24.2-700 (1) - (5).


9

election].”27 A Virginian in such circumstances may request “an emergency

absentee ballot be delivered to him in the hospital.” Virginia statute defines

“‘Incapacitated’ [to] mean hospitalized, ill and confined to his residence, bereaved

by the death of a spouse, child, parent or otherwise incapacitated by an

emergency.”28

9. If the application for an absentee ballot is completed in-person at the general

registrar’s office the applicant must provide one of the forms of identification

required to vote in-person at a polling place.29 But an absentee ballot application

submitted by mail, internet or fax (including the federal postcard application) does

not require the voter to present the photo identification required at the polling

place.30

10. The federal Help America Vote Act of 2002, 52 U.S.C. 21083 (HAVA), requires

that a voter who registers to vote by mail must present a HAVA designated form

of identification before casting a ballot whether in-person or by an absentee

ballot. Virginia adopted the HAVA identification requirements for mail-in

absentee ballots. A first-time mail-in-registered voter is required to “submit with

his ballot (i) a copy of a current and valid photo identification or (ii) a copy of a

27 Id. §24.2-705.

28 Id. §24.2-705.

29 Id. §24.2-701.B.1

30 Id. §24.2-701.B.2.


10

current utility bill, bank statement, government check, paycheck or other

government document that shows the name and address of the voter.”31

11. Thus, considered in its totality, Virginia law requires a voter to identify

themselves using any one of a number of identification documents. Virginia’s

election statutes and Virginia’s system of election administration allow a person

to appear at their polling place on Election Day without any form of identification

and cast a ballot. The officers of election will provide the person a ballot even if

the person lacks any identification. The ballot will be put in a provisional ballot

envelope and the ballot will be counted provided the voter sends the registrar a

copy of any of the acceptable forms of photo identification on Friday following

Election Day. The voter may provide a copy of the requisite identification

document by mail, fax, e-mail or in-person.

12. If a person has no acceptable form of photo identification, the Board or one of the

133 registrar offices will give the person a free photo identification card and the

voter’s ballot will be counted. The voter can obtain the free photo identification

even after casting a provisional ballot on Election Day. And the voter can obtain

the free photo identification without having to provide any underlying documents

such as a birth certificate. All that is required for a person to obtain a free photo

identification card is to sign a form attesting to the person’s identify and stating

their address and social security number.

31 Id. §24.2-706.


11

13. If any voter is disabled, incapacitated, incarcerated (for a non-felony offense), a

student, or simply out of town for business or vacation, he may still vote by

casting an absentee ballot. To cast an absentee ballot, a person need only request

an absentee ballot (by mail, in-person or over the Internet) and return the ballot.

If the voter is newly-registered and has not previously voted they need to include

a copy of their HAVA, non-photo, identification with the absentee ballot. But if

the voter has previously voted in-person or has provided the HAVA specified

identification to the registrar, the voter does not need to include any identification

with their absentee ballot.

B. Virginia elections are conducted by bi-partisan election boards and bi-partisan teams of election officials.

14. Virginia law provides that its elections are conducted by four different entities:

The State Board of Elections (Board), the Department of Elections (Department),

Local Election Boards (Electoral Boards) and Registrars (Registrars). Each local

electoral board appoints individual Officers of Election to conduct the election in

each precinct. While the Board, through the Department, provides local electoral

boards guidance about how to conduct elections, it is the electoral boards that

actually conduct the election and, as it relates to photo identification, it is the

officers of election acting under direction and supervision of the local electoral

board that enforce Virginia’s voter identification law.


12

1. The State Board of Elections32

15. The State Board of Elections is a three-member body appointed by the Governor

and confirmed by the General Assembly. Two members are from the Governor’s

political party and one member is from the opposing political party.

16. The current Board members are James B. Alcorn, Chairman and Singleton B.

McAllister, Secretary, both Democrats and Clara Belle Wheeler, Vice Chairman,

who is Republican. The Board, “through the Department of Elections shall

supervise and coordinate the work of the county and city election boards and the

registrars to obtain uniformity in their practices and proceedings and legality and

purity in all elections.”

17. The Board “shall make rules and regulations and issue instructions and provide

information consistent with the election laws to the electoral boards and registrar

to promote the proper administration of election laws.” Finally, the “State Board

shall prescribe appropriate forms and records for the registration of voters,

conduct of elections, and implementation of this title, which shall be used

throughout the Commonwealth.”

2. The Department of Elections33

18. Virginia’s Governor appoints “a Commissioner of Elections” who shall “employ

the personnel required to carry out the duties imposed by the State Board of

Elections.” And, “[t]he State Board, through the Department of Elections, shall

32 The description of the State Board of Elections is taken from Va. Code, Title 24.2, Article 2, §24.2-102 through §24.2-105.2.

33 Id.


13

ensure that the members of the electoral boards and general registrars are properly

trained to carry out their duties” by offering training and “set[ting] training

standards.” The current Commissioner of Elections is Edgardo Cortes.

3. The Local Boards of Election34

19. “There shall be in each county and city an election board composed of three

members who shall be appointed by a majority of the circuit judges of the judicial

circuit for the county or city.” Virginia requires that two electoral board members

shall be of the Governor’s political party and one member of the other political

party. “Each electoral board shall appoint the general registrar for its city or

county and officer of election for each precinct who shall serve in all election.”

20. “The electoral board shall perform the duties … including … preparation of

ballots, the administration of absentee ballot provisions, the conduct of the

election, and the ascertaining of the results of the election.” There are 133 local

city and county electoral boards in Virginia.

4. The General Registrar35

21. Virginia law provides, “each electoral board shall meet … and shall appoint a

general registrar.” Article Four provides, “the general registrar, and the assistant

registrars acting under his supervision, shall [inter alia] [m]aintain the official

registration records for his county or city,” The registrars also “[v]erify the

34 The Local Boards of Election are defined in Va. Code, Title 24.2, Article 3, §24.2-106 through 24.2-109.1.

35 The appointment and duties of a general registrar are found in Va. Code, Title 24.2, Article 4, §24.2-110 – 24.2-114.


14

accuracy of pollbooks provided for each election … [m]aintain accurate and

current registration records … [and] [w]henever any person is believed to be

registered or voting in more than one state or territory of the United States at the

same time, inquire about, or provide information from the voter’s registration and

voting records to [the other election authority].”

5. Officers of Election36

22. Each local electoral board “shall appoint officers of election.” At least three

officers of election shall be appointed for each precinct and are to be selected

equally from both major political parties. “The electoral board shall designate

one officer as the chief officer of election and one officer as the assistant for each

precinct. The officer designated as the assistant for a precinct, whenever

practicable, shall not represent the same political party as the chief officer for the

precinct…. The electoral board shall instruct each chief officer and assistant in

his duties … and shall conduct training of the officers of election consistent with

the standards set by the State Board.” The officers of the election under the

electoral board’s direction are the individuals who actually conduct the election

and enforce voter identification requirements.

C. The Board and Department diligently implemented Virginia’s election law to assure that every Virginia voter has opportunity to vote and to obtain a free photo identification card.

23. General registrars and local boards of election were provided with state resources

to provide photo identification to voters each of the 133 general registrars’ offices

36 The appointment and duties of officers of election are found in Code of Va., Title 24.2, Article 5, §24.2-115 – 24.2-123.


15

throughout the state and at locations outside the general registrars’ offices in order

to accommodate voters who might have transportation issues. Don Palmer,

former Secretary of the State Board of Elections, will testify the Board, when

designing the voter identification system, assured that the system software and

hardware were available on a mobile platform, such as a laptop computer with a

portable camera, that registrars can both use in their offices and take to locations

outside their offices, such as nursing homes. Justin Riemer will likewise testify

that mobile servicing of voters was a priority for the State Board of Elections and

that local registrars formed a working group to plan how to provide voter

identification via mobile units. See also Virginia Voter Photo ID Training

Manual.37 The Department has used HAVA grant funding, separate and apart

from the voter identification budget, to provide local general registrars with the

requisite equipment. As Mr. Cortes and other witnesses will testify, acceptable

identification for voting is also available from the Virginia Department of Motor

Vehicles where voters live. The DMV has mobile “DMV 2 Go” units that

provide drivers licenses, Veterans identification cards, and other photo

identification services outside DMV offices.38 The mobile customer service

center is handicapped-accessible, and voters can schedule the mobile unit to come

to any location.

37 Available at: https://voterinfo.sbe.virginia.gov/GREBHandbook/Default/Index/5b94fcd4-104d-9532-03f7-81314df153a5.

38 Information on the DMV’s Mobile Customer Service Center (DMV 2 Go) services is available at: http://www.dmv.state.va.us/general/#dmv_2go.asp. Virginia drivers licenses can be renewed online without visiting a DMV office.


16

24. As Edgardo Cortes, current Commissioner of the Department, Don Palmer,

former Secretary of the BOE, and Myron McClees, Department policy advisor,

will testify, Defendants have provided comprehensive training to general

registrars to ensure uniform implementation of the photo identification

requirement. The Department thoroughly covered the photo identification

requirement at the 2014 and 2015 annual in-person trainings, which require the

attendance of all general registrars (or designated staff member) and at least one

electoral board member from each locality. The Department will again cover the

photo identification requirement at the upcoming June 2016 mandatory training.

In addition to the annual mandatory training, Defendants hosted a webinar on the

photo identification law implementation in the spring of 2014 and made it

available for download. The Department has also provided guidance materials to

general registrars, including, but not limited to, the “What If…” guide, the GRE

manuals, webinar presentations, email updates, and other voter outreach

materials. The general registrars train their own staff on the relevant policies and

procedures. Defendants also formed a voter identification working group to

provide feedback on the development of policy and procedures. This working

group includes general registrars and local electoral board members representing

urban, suburban, and rural localities that ranged in size.

25. Mr. Cortes and Matt Davis, Chief Information Officer of the Department, will

testify about availability and production of free voter photo identification. Within

the $166,000 budget apportioned, the Department: (1) developed its own cost-

effective and user-friendly software program for producing voter identification


17

that is compatible with the online voter registration system (VERIS); (2) procured

equipment for each local registrar office to take and process the photos and

applications and for the Department to print the voter ID cards in-house; (3)

conducted online and in-person regional trainings on use of the software and

equipment; and (4) as of July 2015, printed and mailed more than 4,300 voter

photo identification cards directly to voters.

26. As Mr. Cortes and Mr. Palmer will testify, to obtain a voter photo identification, a

voter may go to any local general registrar office to complete an application and

have their photo taken. The general registrar then confirms the voter’s address in

VERIS, makes any necessary changes, takes a photo of the voter, and

electronically submits the photo and application to the Department. The

Department prints and mails the voter photo identification card to the address in

VERIS.

27. Defendants also require local registrar offices to issue temporary identification

cards, which serve as an alternative to the free voter identification until the

official card can be mailed by the Department to the voter. Local registrar offices

must issue a temporary identification to any voter that applies for identification

within 30 days of the election. Even if a voter does not obtain an acceptable form

of identification before Election Day, the voter may still have their ballot counted.

To do so, the voter casts a provisional ballot and applies for and obtains a

temporary ID from the local registrar office to satisfy the identification

requirement before the noon deadline on the Friday following the election. Or


18

alternatively, the voter may obtain a temporary identification on Election Day and

then vote casting a regular ballot.

D. The Board and Department maximized resources to educate voters about the election law at issue.

28. As Edgardo Cortes, Commissioner of the Department, and others will testify,

Defendants developed and implemented a robust campaign to ensure that voters

are aware of the photo identification requirement and the availability of free voter

photo identification.

29. The legislature appropriated $200,000 annually to voter outreach for fiscal years

2014-2017. Cortes will testify that to maximize these resources, the Department

engaged the King Agency to develop public marketing branding and media

strategy for the campaign. The Department recently signed a new contract with

the King Agency to continue to provide services through the 2016 presidential

election.

30. Cortes will testify that the King Agency developed marketing materials, including

brochures, flyers and posters that educate voters about the photo identification

requirement. In total, the Department has provided more 1,000,000 flyers and

6,000 posters to local voter registration offices to use and distribute. These

materials are also publically available online as part of the Voter Photo ID toolkit.

With the guidance of the King Agency, the Department has run campaigns

advertising the photo identification for each election since the law has been in

effect. For the 2014 and 2015 elections, the Department ran 15-second and 30-

second radio advertisements in areas identified as “hot spots” for voters without


19

DMV-issued identification. The Department has also publicized the requirement

and availability of voter identification on social media, including Facebook,

Twitter, and YouTube and encouraged partners to link to the same. Aside from

paid advertising, the Department actively seeks capitalize on “earned media,”

including press coverage and grassroots social media, to spread the message about

the photo identification requirement. This effort has been effective. For example,

prior to the 2014 election, the Department’s Facebook page was engaged almost

5,000 times, its twitter page had more than 27,000 page impressions, the Voter

Photo ID PSA on YouTube received more than 1,400 views, and its Voter Photo

ID Information web page received more than 26,000 unique visitors.

31. Cortés will testify that in advance of the upcoming March primary, the

Department commissioned the King Agency to conduct a Google consumer

survey to enhance its outreach strategy. Using this survey information, the

Department and the King Agency devised an advertising campaign that

maximizes the reach for each region. In some regions, including

Charlottesville/Harrisonburg, the Department is running television and cable

advertisements. In Northern Virginia and the surrounding Metro DC area, the

Department has opted for bus advertising, including Spanish language

advertisements for routes known to have high numbers of Latino passengers. The

Department has continued to use newspaper and radio advertising, particularly in

regions where long commutes are common. A portion of the newspaper

advertisements will be running in publications targeting African American and

Latino audiences.


20

32. Cortés will testify Defendants have utilized other sources of funds to support

further voter outreach efforts. As discussed above, with the aid of HAVA grant

funding, the Department has offered localities reimbursement for the purchase of

mobile voter identification kits. The Department incorporated information

regarding the photo identification law into mandated advertising for a proposed

constitutional amendment in newspapers with a total circulation of nearly

1,000,000.

33. Cortés will testify that in addition to the broad-reaching advertising to all

Virginians, the Department sent a targeted mailer to close to approximately

85,000 active voters in Virginia that do not have a DMV-issued photo

identification.

34. Cortés will testify that in addition to and independent of these efforts, the 133

general registrars and 399 electoral board members also engaged in their own

outreach to publicize the photo identification requirement. For example, the

Fairfax City produced its own public service announcement video and made that

PSA accessible to registrars and the public-at-large. The General Registrar in the

City of Manassas included voter identification information in the monthly utility

bill mailing to all local residents. The Department has facilitated communication

among the general registrars about these efforts.

35. The Department has partnered with third parties to facilitate grassroots outreach

and education on the photo identification requirement and the availability of free

voter identification. This includes partnerships with, among others, the NAACP


21

Mid-Atlantic Field, the Virginia Board for People with Disabilities, members of

the African American clergy community, AARP, Virginia New Majority, the

League of Women Voters, the Young Democrats, the Lawyers’ Committee for

Civil Rights, and even the Virginia Democratic Party itself. The Department also

worked closely with a number of these groups to create custom materials for

distribution. Staff from the Department has provided information about the photo

identification law at voter outreach events hosted by these third parties. In the

lead up to the 2016 presidential election, the Department continues to seek

opportunities to strengthen existing relationships with partners and form new

partnerships.

36. Palmer and Riemer will testify that it was an important goal of the State Board of

Elections to implement online voter registration because it was recommended by

the Carter-Baker Commission and viewed as an effective way to modernize

election administration, improve voter list maintenance, and mitigate against long

lines at the polls. Because of the Board’s efforts, the legislature enacted online

voter registration.

E. Almost every eligible Virginia voter possesses at least one form of identification document necessary to vote and those few Virginians that lack photo identification can easily obtain one for free.

37. The matching analysis conducted by Plaintiffs’ own expert, Dr. Jonathan Rodden,

shows that nearly all registered voters in Virginia possess an acceptable form of

photo identification. Further, the estimates of registered voters lacking either


22

DMV, free, student or military identification39 show only a minor differential

among racial and ethnic groups -- 4.1% of non-Hispanic whites, 5.4% of African

Americans, and 5.6% of Hispanics. Rodden Report p. 32.

38. Even then, this minor (estimated) differential should in all likelihood be further

narrowed because Dr. Rodden failed to account for a number of acceptable forms

of identification, including: (1) government-issued ID cards from federal,

Virginia, or local subdivisions (including political subdivisions); (2) tribal

enrollment or other tribal identification; (3) U.S. Passport or Passport card; (4)

valid employee photo identification card issued by voter’s employer in the

ordinary course of business (public or private employer); (5) nursing home

resident identification, if issued by government facility; and (6) student

identification issued by a public or private high school in Virginia. Thornton

Report p. 12.

39. Plaintiffs could have requested that federal government agencies, including the

Department of Veterans Affairs and the Department of State, match the list of

registered Virginia voters to their databases. Information from such federal

agencies has been considered in other voter photo identification cases, including

North Carolina. Thornton Report p. 13. However, plaintiffs chose not to even

attempt to obtain such information in this case.

39 As Defendants’ expert, Dr. Janet Thornton, will testify, Dr. Rodden’s estimate of registered voters possessing student and military IDs is low when compared to the total number of students and members of the military in Virginia.


23

40. Plaintiffs’ own expert, Allan Lichtman, acknowledged that African Americans

have a higher rate of enrollment in institutes of higher education. Lichtman

Depo., v. 1, 158:1-06. As such, the data points missing from Dr. Rodden’s

analysis undermine his conclusions about the rate of identification possession

among registered voters in Virginia.

41. As Dr. Karen Owen notes in her expert report, if Republicans sought to reduce

Democratic strength in the state, requiring voters to present photo identification at

the polls would not achieve that goal. In 2014, 2,194,346 people voted in

Virginia, and fewer than 800 had to cast a provisional ballot because they did not

present an acceptable form of identification. That is less than 0.036% of those

who went to the polls. In 2015, 1,509,864 people cast ballots in Virginia, and

fewer than 450 had to vote provisionally because they did not present an

acceptable form of identification. That is less than 0.029% of those who went to

the polls. And, the actual number of eligible Virginia voters without an

acceptable form of identification is probably smaller since some of those casting

provisional ballots probably have photo identification but forgot to bring it with

them to the polls. Owen Report, p. 6.

42. Dr. Owen also cites the work of respected Harvard government professor,

Stephen Ansolabehere. Based on data collected by YouGov/Polimetrix, Dr.

Ansolabehere concludes that, “[v]oter ID does not appear to present a significant

barrier to voting…. Although the debate over this issue is often draped in the

language of the civil and voting rights movements, voter ID appears to present no

real barrier to access.” Owen Report, p. 7.


24

43. Dr. Owen further cites The Pew Research Center’s national survey research that

indicates that the overwhelming share of adults believe that they have necessary

documentation to vote where photo identification is required. Owen Report, p. 7.

III. Virginia reformed its election laws, including voter identification requirements, to provide for the fair, honest and just administration of elections.

A. The Help America Vote Act

44. In the aftermath of the 2000 election, Presidents Carter and Ford co-chaired a bi-

partisan commission (the Commission on Federal Election Reform) that

investigated the conduct of federal elections and recommended changes in

election administration.

45. Responding to these recommendations, Congress passed the Help America Vote

Act of 2002 (“HAVA”)40 with broad bipartisan support. HAVA was intended to

“change the system to make it easier to vote and tougher to cheat.” 148 Cong.

Rec. S10488 (2002) (statement of Sen. Bond). The legislation’s “one central goal

[ ] was to make it easier to vote in America and much harder to corrupt our

Federal election system.” Id. at S2527 (statement of Sen. Dodd).41

46. HAVA demonstrated bi-partisan recognition of the three principles essential to

any fair and honest election: (1) a current and accurate voter roll; (2) safeguards

to assure that the person casting a ballot is reliably identified as the individual

40 Pub. L. No. 107-252, 116 Stat. 1666 (codified in scattered sections of 2, 5, 10, 36, and 42 U.S.C. § 15481).

41 President Bush noted the Carter-Ford Commission’s recommendations “helped inspire this legislation”; “our nation is grateful for their work on election reform and for all they have given to America.” Remarks by President at Signing of H.R. 3295, The Help America Vote Act of 2002, October 29, 2002, 2002 WL 31415995 (White House).


25

registered; and (3) accurate and unbiased procedures to properly count and report

each vote cast.

47. Among other things, HAVA Section 15483(a)(5)(A)(ii) was specifically included

to address vote fraud, and provides minimum requirements for identification of

voters who register by mail, including presentation of photographic

identification.42 Although HAVA requires photographic identification for persons

casting a ballot for the first time following a mail-in registration, Section

15483(a)(5)(A)(ii) also provides non-photo identification alternatives, including

“a current utility bill, bank statement, government check, paycheck, or other

government document that shows the name and address of the voter.”

48. These identification standards are a “floor,” not a “ceiling.” HAVA explicitly

provides that the relevant provisions “are minimum requirements,” and shall not

“be construed to prevent a State from establishing election technology and

administration requirements that are more strict than” provided in HAVA, “so

long as such State requirements are not inconsistent with the Federal

requirements.” 42 U.S.C. §15484 (2006).

B. The Carter-Baker Commission on Federal Election Reform

49. The Carter-Baker Commission was convened after the 2004 presidential election.

This Commission was the successor to the Carter-Ford Commission and included

many of the same members. The Carter-Baker Commission’s final report

42 See Hearing on H.R. 3295 Before the H. Comm. on the Judiciary, 107th Cong. (2001), available at 2001 WL 1552086 (F.D.C.H.) (statement of Rep. F. James Sensenbrenner, Jr.) (identifying vote fraud as a significant motive behind HAVA’s anti-fraud provisions); Remarks by President Bush at Signing of H.R. 3295, Help America Vote Act of 2002 (Oct. 29, 2002), 2002 WL 31415995 (White House), at *2.


26

represents a high-water mark in the development of national, bi-partisan,

consensus recommendations on post-HAVA election reform. Among its other

recommendations, the Commission wrote that:

To ensure that persons presenting themselves at the polling place are the ones on the registration list, the Commission recommends that states require voters to use the REAL ID[43] card, which was mandated in a law signed by the President in May 2005. The card includes a person’s full legal name, date of birth, a signature (captured as a digital image), a photograph, and the person’s Social Security number. This card should be modestly adapted for voting purposes to indicate on the front or back whether the individual is a U.S. citizen. States should provide an EAC-template ID with a photo to non-drivers free of charge.44

50. Notably, the Carter-Baker Commission’s bi-partisan photo identification

recommendation is more stringent than Virginia’s, requiring validation of

provisional ballots within 48 hours of an election, as opposed to Virginia’s three-

day validation period.

51. Following Carter-Baker and the Supreme Court’s decision in Crawford v. Marion

County, 553 U.S. 181 (2008), many states reformed their election laws to include,

inter alia, the requirement that a person provide some form of photo identification

before their ballot will be counted. In Crawford, the Supreme Court embraced the

43 The Federal REAL ID Act of 2005, Pub. L. No. 109-13, div. B, 119 Stat. 231, 302 (codified in scattered sections of 8 and 49 U.S.C. § 30301) established requirements that states must meet by 2008 for the issuance of photo identification that will be necessary to enter a federal building, board a plane or open a bank account. § 202, 119 Stat. at 312.

44 Report of the Comm. on Federal Election Reform, pp. 18-21, available at: http://www.eac.gov/assets/1/AssetManager/Exhibit%20M.PDF.

Besides the Co-Chairs, this recommendation was supported by Commissioners Robert Pastor, Betty Castor, Rita Dimartino, Lee Hamilton, Kay Coles James, Benjamin Ladner, David Leebron, Nelson Lund, Shirley Malcom, Bob Michel, Susan Molinari, Robert Mosbacher, Ralph Munro, Jack Nelson, Tom Philips, and Sharon Priest. Commissioners Tom Daschle, Spencer Overton, and Raul Yzaguirre dissented.


27

Carter-Baker Commission report and recommendations. Both the lead opinion

and Justice Breyer’s dissent discuss the Carter-Baker report as authoritative:

Like Justice Stevens, I give weight to the fact that a national commission, chaired by former President Jimmy Carter and former Secretary of State James Baker, studied the issue and recommended that States should require voter photo IDs. See Report of the Commission on Federal Election Reform, Building Confidence in U.S. Elections § 2.5 (Sept.2005) (Carter–Baker Report), App. 136–144. Because the record does not discredit the Carter–Baker Report or suggest that Indiana is exceptional, I see nothing to prevent Indiana's Legislature (or a federal court considering the constitutionality of the statute) from taking account of the legislatively relevant facts the report sets forth and paying attention to its expert conclusions.

Crawford, 553 U.S. at 237-38 (Breyer, J., dissenting).

C. Following the recommendations of Carter-Baker a number of states adopted election reforms including requirements that a voter provide photo identification before a ballot is counted.

52. Thirty-three states have adopted voter identification requirements, 17 states

require photo identification, and 16 states also accept non-photo identification.45

Each state has slightly different voter identification requirements.

53. A number of those states that have adopted photo identification requirements did

so before Shelby County v. United States, 133 S. Ct. 2612 (2013), and were

subject to the preclearance provisions of Section 5 of the Voting Rights Act.

These states included Georgia and South Carolina.

45 National Conference of State Legislatures, Voter Identification Requirements, updated 1/4/16, available at: http://www.ncsl.org/research/elections-and-campaigns/voter-id.aspx#Laws in Effect.


28

D. Virginia reformed its election law to require a person to provide identification documents before casting a ballot that will be counted.

54. In 2012, the Virginia General Assembly passed and the governor signed SB 1.

The law expanded the types of identification a voter may produce to vote and

eliminated “the provision that allowed a voter to sign a sworn statement…in lieu

of showing identification.”46 If a voter did not produce an acceptable form of

identification, the voter could cast a provisional ballot and later “submit a copy of

one of the required forms of identification to the electoral board in person or by

facsimile, electronic mail, or other means by noon of the third day after the

election.”47 Id. If the voter submits such a copy of an acceptable form of

identification, the voter’s provisional ballot will be counted.

55. The 2012 voter identification law was reviewed by the Justice Department and

precleared under Section 5 of the Voting Rights Act.

56. The 2012 voter identification law did not fully adopt the Carter-Baker

recommendation of providing photo identification. Specifically, the 2012 law

allowed a person to cast a ballot without providing photo identification. A

significant loophole in the photo identification requirement was the use of a non-

photo voter identification card.

57. When Virginia election authorities receive a voter registration form (by mail,

internet or dropped off in-person) the election board will mail a voter registration

46 Summary of SB 1, available at: https://lis.virginia.gov/cgi-bin/legp604.exe?121+sum+SB1.

47 The text of SB 1 is available at: https://lis.virginia.gov/cgi-bin/legp604.exe?121+ful+CHAP0839.


29

card to the address noted on the voter registration form. There is no requirement

that the registrant provide any document validating their identity and the voter

identification card (which does not include a photo) may be used at the poll to

satisfy the identification requirements of the 2012 law.

58. The 2012 law conflicted with federal HAVA identification requirements. As

noted above, HAVA requires that before a person who registers to vote by mail

may cast a ballot the person provide one of the designated forms of HAVA

identification establishing the person’s name and address.

59. Under Virginia’s 2012 law the registrars were required to maintain a list of

HAVA and non-HAVA voters on the voter roll. This created confusion and made

the administration of elections more difficult.

60. The 2012 law’s lack of a photo identification requirement also allowed

opportunity for votes to be cast in the name of fictional registrations and deceased

voters.

61. In 2013 Virginia addressed these concerns about the 2012 law by amending

Virginia Code §§24.2-404, 24.2-411.1, 24.2-643, and 24.2-701 to require a person

to provide photo identification and providing a free photo identification card to

any person who did not possess one of the requisite forms of identification

documents.48

48 The 2013 law is available at: https://lis.virginia.gov/cgi-bin/legp604.exe?131+ful+CHAP0725.


30

E. Virginia reformed its election laws in response to broad public support for a requirement that voters provide photo identification and to address concerns about vote fraud.

62. In the final days of the 2012 general election Patrick Moran – the son of

Democrat Congressman Jim Moran -- was filmed explaining how ballots could be

cast using falsified utility bills or bank statements as identification.49 YouTube

reported this video was viewed more than 392,000 times.50

63. The state legislature and the State Board of Elections was concerned about voter

fraud and believed photo identification could prevent such fraud and would

achieve the “gold standard” for election administration recommended by the

Carter-Baker Commission. Don Palmer will testify that the state board received

complaints from voters that other individuals had voted in their names and notices

from other states that individuals were double-registered in other states and in

Virginia. The state board referred complaints to local prosecutors and worked

collaboratively with multi-state organizations to review voter rolls and eliminate

double registrations. Palmer will also testify that photo identification prevents

individuals from voting for deceased people who remain on the voter registration

rolls, individuals who attempt to vote using a fictitious registration, and family

members and neighbors who attempt to vote for moved or deceased family

members using non-photo identification obtained in the mail. Moreover, Palmer

will testify that members of the legislature questioned why the state did not have a

photo identification standard recommended by the Carter-Baker Commission and

49 Project Veritas video available at: https://www.youtube.com/watch?v=gT77qP2Nai8.

50 Id.


31

that the 2012 voter identification law created a confusing standard that did not

comply with the federal HAVA requirements.

64. In addition to these specific concerns about vote fraud, there is a history of vote

fraud in Virginia and nationally.51

65. Virginia voters overwhelmingly support the requirement that voters provide photo

identification before casting a ballot.52 Support for photo identification

requirements include support by a majority of Democrat voters and minority

voters.

66. When Virginia adopted the 2013 law, academic studies found that photo

identification requirements did not burden or impair minority voter participation.

A January 2009 study by the American University Center for Democracy and

Election Management, VOTER ID’S ARE NOT THE PROBLEM: A SURVEY OF THREE

STATES, concluded:

This research provides important evidence that the requirement of IDs is more of a concern for certain leaders than it is among the general population, and part of the reason is that practically everyone who registers and votes already has a photo ID. It seems clear that the requirement of photo IDs is not an impediment to voting; the problem is that not enough people register, and not all of those who register vote. This was a problem before ID laws, and it remains a problem. The Carter Baker Commission recommends an affirmative role by the states to expand the voter registration list and provide free photo IDs at the same

51 See Jimmy Carter, TURNING POINT (1995); Tracy Campbell, DELIVER THE VOTE: AHISTORY OF ELECTION FRAUD, AN AMERICAN POLITICAL TRADITION – 1742-2004, p. 340 (2005); John Fund, STEALING ELECTIONS: HOW VOTER FRAUD THREATENS OUR DEMOCRACY (2004); Andrew Gumbel, STEAL THIS VOTE: DIRTY ELECTIONS AND THE ROTTEN HISTORY OF

DEMOCRACY IN AMERICA 74-75 (2005) (infra notes 125-27); see also Minnite report, pp.10-13.

52 Owen Report, pp. 12-13, citing Quinnipiac polling data.


32

time. That would widen access while strengthening the integrity of the election and thus raise confidence in the electoral process.53

67. The lead author of the American University study, VOTER IDS ARE NOT THE

PROBLEM, is the late Dr. Robert Pastor. Pastor was a Democrat and senior advisor

to President Jimmy Carter. Pastor was also a colleague of the Plaintiff’s expert

Lichtman.54

68. Photo identification is required (by law or practice) for most everyday activities –

including activities that are constitutionally protected such as travel, marriage,55

and purchasing a firearm. For example, to obtain a Virginia driver’s license,

applicants must provide two proofs of identity, one proof of Virginia residency,

one proof of legal presence in the United States, and one proof of the applicant’s

social security number, if applicable. Virginia law requires individuals to possess

and show photo identification for such things as operating a motor vehicle,56

purchasing or selling firearms,57 carrying a concealed firearm,58 purchasing a

53 VOTER IDS ARE NOT THE PROBLEM, at p. 10. See also, Owen expert report citing the American University Study.

54 Lichtman Depo., v.1, 149:03-14. Indeed, Pastor was not only one of Lichtman’s colleagues whose work he holds in high regard, but also a close friend in addition to being a cousin by marriage. Id. at 149:15-150:04.

55 See Va. Code Ann. § 20-16; see also, e.g., Fairfax County requirement, available at: http://www.fairfaxcounty.gov/courts/circuit/marriage_license_info.htm (“The couple must appear before the Clerk together to obtain a license and be 18 years of age or older. The couple must provide the following: (i) valid photo identification (a valid driver's license with picture, passport or military identification); (ii) $30 cash or credit card (MasterCard and Visa only with a 4% transaction fee); (iii) their social security number (they do not need to bring their social security card); and (iv) the full names of each applicant’s parents (including full middle names) as they appear on their birth certificates. (If a parent’s maiden name differs from their current name, the applicant must provide that parent’s full maiden name.)”).

56 Va. Code §46.2-300.

57 Id. §18.2-308.2:2; 18.2-308.01


33

tobacco or nicotine product, purchasing alcohol,59 documenting employment or

school attendance,60 purchasing any form of ephedrine or related cold medicine,61

using disabled parking,62 obtaining Schedule II prescription drugs,63 requesting

criminal records,64 renting real estate (upon landlord request),65 selling scrap

metal,66 taking an EMS certification test,67 and becoming a bail bondsman or

private security officer68 (non-exhaustive list). The federal government requires

identification for such things as registering to vote for the first time by mail,69

purchasing controlled substances,70 gambling at Indian casinos,71 carrying a

concealed firearm (retired law enforcement officers),72 purchasing controlled

machinery,73 appearing before an immigration judge as an attorney,74 visiting a

58 Id. §18.2-308.05.

59 Id. §4.1-304.

60 Id. §9.1-905.

61 Id. §18.2-265.7.

62 Id. §46.2-1254.

63 Id. §54.1-3420.1.

64 Id. §19.2-389.

65 Id. §55-248.4.

66 Id. §59.1-136.3.

67 12 Va. Admin. Code 5-31-1454.

68 6 Va. Admin. Code 20-250-290; 20-172-70, 20-172-120, 20-174-150.

69 52 U.S.C. §21083.

70 21 U.S.C. §830.

71 25 C.F.R. §542.14.

72 18 U.S.C. §926C.

73 21 U.S.C. §830.

74 8 C.F.R. §1292.1.


34

prison,75 visiting a nuclear reactor,76 being a crewmember of a civil aircraft,77

applying for medical certification,78 requesting military records,79 boarding a

flight in or out of Reagan National Airport,80 boarding large vessels in the

Chesapeake Bay and Hampton Roads areas,81 hunting in national wildlife refuges

in Maryland,82 West Virginia,83 Rhode Island,84 and South Carolina,85 and owning

a vessel with sablefish onboard86 (non-exhaustive list). Moreover, this Court

requires “All persons seeking entry into the courthouse … to present a photo ID

issued by a government agency, such as a driver’s license or a voter identification

card with picture.”87 The Transportation Safety Administration requires that

“Adult passengers 18 and over must show valid identification at the airport

checkpoint in order to travel.”88

75 28 C.F.R. §540.51.

76 10 C.F.R. §73.55.

77 14 C.F.R. §61.3(a).

78 Id. §67.4.

79 32 C.F.R. §§321.4, 324.12.

80 49 C.F.R. §1562.23(g).

81 33 C.F.R. §165.501.

82 50 C.F.R. §32.39.

83 Id. §32.68.

84 Id. §32.59.

85 Id. §32.60.

86 Id. §660.231.

87 U.S. District Court, E.D. Va. policy, available at: http://www.vaed.uscourts.gov/locations/documents/ElectronicsDevicePolicy.pdf.

88 TSA identification policy, available at: https://www.tsa.gov/travel/security-screening/identification. See also 49 U.S.C. § 114(h) (directing TSA to work with other agencies to identify individuals who may pose a risk and stop them from entering airplanes).


35

F. Plaintiff’s contention that Virginia adopted its voter identification requirements for an invidious discriminatory purpose is without merit.

69. Plaintiffs retained Lichtman as an expert to opine that Virginia adopted the 2013

voter identification requirements for the invidious purpose of “deliberately and

knowingly crafted [Virginia’s voter identification] legislation… to place disparate

:burdens on the opportunities of African Americans to vote in Virginia.”89

70. While Lichtman couches his allegation in terms of a supposed racially-

discriminatory intent, he later admits the intention was not specifically racial but

(according to Lichtman) really intended to gain a perceived partisan advantage for

Republican candidates. Namely, Lichtman testified, “[t]heir (the legislators)

intent was to gain a partisan advantage by disparately burdening African

Americans….”90

71. Lichtman’s conclusion lacks any credible support. Most notably, Lichtman

admits that his analysis of discriminatory intent is independent from data

evaluating disparate impact.91

G. Plaintiff’s contention that Virginia adopted its voter identification requirements for an invidious discriminatory purpose is without merit.

72. Plaintiff’s retained Dr. Lorraine C. Minnite as an expert to opine that “[h]aving no

basis in fact, [allegations of widespread voter fraud] are usually motivated by

political interests, and are designed to make voting harder for certain

89 Lichtman Report p. 4.

90 Deposition of Allen Lichtman, v. 1, 85:6-24; 86:4-13

91 Deposition of Allen Lichtman 112:12-113:6; 117:8-118:1; 197:8-18; 198:12-21.


36

populations..”92 Minnite further criticizes the Supreme Court’s decision in

Crawford and the Supreme Court’s reliance upon the Carter-Baker Commission’s

report.93

73. This Court noted, “Dr. Minnite’s viewpoint is arguably at odds with the Supreme

Court’s opinion in Crawford v. Marion County Election Board where the Court

observed that the voter identification law passed in Indiana was ‘”amply justified

by the valid interest94 in protecting ‘the integrity and reliability of the electoral

process.’”

74. This Court went on to hold, “While the Court will deny Defendant’s Motion to

Exclude Dr. Minnite’s testimony in its entirety, some limitations are appropriate.

Dr. Minnite will not be permitted to comment on the wisdom or reasoning of the

Supreme Court’s decision in Crawford. Furthermore, she may not speculate or

opine on the deliberative process or motives of the General Assembly, or any of

its members, without evidentiary support.”95

IV. Virginia’s 2013 voter identification law is not the result of invidious discrimination by long-gone generations.

75. Plaintiffs offer John Douglas Smith to opine that the General Assembly’s

enactment of the 2013 voter identification law is a continuation of Virginia’s

alleged history of legislating against minorities. However, much of Dr. Smith’s

92 Minnite Report p. 3 (quoted in this Court’s Order Dkt. No. 154, p.2).

93 See Minnite rebuttal report, pp. 1-7.

94 Order, Dkt. No. 154, at 4-5.

95 Id. at 5-6.


37

analysis is focused on events occurring long prior to 1965, and is not reasonably

contemporaneous with the enactment of the challenged legislation. Smith’s

opening expert report devoted only three pages to the enactment of the 2013 voter

identification law at issue in this case. Smith concludes without evidence that the

“success of Democratic presidential nominee Barack Obama in Virginia,

therefore, relied heavily not only on overwhelming support from non-white

voters, but also on high turnout among these voters. Efforts to dilute or suppress

the non-white vote in Virginia must be understand [sic] in this context.” Smith

report, pp. 58-59.

76. Lichtman likewise opines Virginia’s 2013 voter identification law was adopted

for racist motive.96

77. Plaintiffs fail to provide any evidence of any racist motive.97

78. History of racism in Virginia by Dr. Smith was that of a different political party

(the Democrats) not the Republicans who passed the 2013 law. And the history

was from a long gone era.

96 Lichtman Depo., v.1, 96:05-97:04.

97 The only present-day “evidence” the Plaintiffs cite was a remark by Virginia Senate candidate George Allen referring to an opposing political operative as a “macaca.” But, whatever the significance of Allen’s remark, Allen had nothing to do with adoption of Virginia’s voter identification law and, according to Lichtman, despite this remark Allen received the highest percentage of minority vote of any Republican candidate in the past decade – literally double the minority vote of other Republican candidates. Lichtman Report, p. 61..


38

V. Documented instances of vote fraud validate Virginia’s interest in implementing reasonable non-discriminatory preventative measures.

79. Political power is, unfortunately, a proven inducement to corruption. As James

Madison noted in FEDERALIST 51, men are not angels and sound government must

be structured in light of that unfortunate, but realistic, understanding. Elections

provide the means to acquire political power and history teaches that some (even

if only a small percentage) of people are willing to violate the law to achieve

political power. If men were angels the ballot boxes could be placed unattended

on street corners. But men aren’t angels and it is the role of election professionals

to prevent the election process from being subverted to such corrupt ends.

80. Conducting fair and honest elections that protect the principle of “one person, one

vote” involves three fundamental components: (1) a current and accurate voter

roll on which eligible registered voters are correctly and accurately listed at the

proper precinct,98 and ineligible persons excluded; (2) verifying that the person

casting a ballot is the person registered on the voter roll; and (3) accurately

counting every lawfully cast ballot, and accurately and timely reporting the

outcome.

81. The current case concerns the means by which Virginia election officials verify

that the person casting a ballot is in fact the person on the voter roll. Requiring

reliable voter identification also provides some assurance that the registered

individual is indeed an eligible voter.

98 Registering voters in the proper precinct ensures that each voter has the opportunity to vote in the elections affecting that specific voter. Precinct-based voting also prevents multiple voting at different polling places. This Court upheld pre-election registration and precinct voting requirements as long ago as Mason v. Missouri, 179 U.S. 328, 335 (1900).


39

A. Voter registration fraud occurs.

82. Maintaining a current and accurate voter roll is a constant challenge for election

officials.99 This is due to voters moving (within or between jurisdictions) without

updating their voter registration, a voter’s death,100 or a voter becoming ineligible

to vote based on a criminal conviction.101

B. Ineligible persons on voter rolls include those not citizens.

83. A congressional task force found, for example, that there was “clear and

convincing evidence that 748 invalid votes” by aliens were cast in a 1996

California congressional election.102 This problem is not limited to California: a

Utah study found at least 129 registered voters who were deportable or “likely to

99 When reasonable measures to confirm the validity of a voter registration form are not

conducted before a name is added to the roll, it fosters fraudulent registrations. See Keith Erwin, Potential Fraud Feared In Drive To Sign Up Voters, SEATTLE TIMES, Feb. 23, 2007, at B1; Brad Shannon, Fraud Alleged in 2004 Washington Voter-Registration Drive, THE OLYMPIAN, June 23, 2007, at 1C; Keith Erwin, Three Plead Guilty in Fake Voter Scheme, SEATTLE TIMES, Oct.30, 2007, at B5 (chronicling discovery of "the biggest voter-registration fraud scheme in Washington history" in which three members of an organization plead guilty to submitting more than 1,800 fictitious voter-registration cards during a 2006 registration drive); Questions Abound in Voter Push, KANSAS CITY STAR, Oct. 12, 2006, at B1.

100 Matt Wynn, Deceased Still On State's Voting Rolls, COLUMBIA MISSOURIAN, Nov. 2, 2006, at 1A (finding 10,520 deceased citizens remained registered in Missouri during 2004 election); Lisa M. Collins, In Michigan Even the Dead Vote, DETROIT NEWS, Feb. 26, 2006, at 1A.

101 See Hayden v. Pataki, 449 F.3d 305 (2nd Cir. 2006) (en banc) (New York statutes disenfranchising felons not prohibited by Voting Rights Act); United States v. Prude, 489 F.3d 873 (7th Cir. 2007) (upholding conviction of defendant for fraudulently claiming eligibility to vote despite disqualifying felony conviction).

102 H.R. 105-416, 105th Cong. at 12 (1998), see also John Fund, WALL STREET JOUR.,Opinion Journal, May 21, 2006 at http://www.opinionjournal.com/diary/?id=110008411 (noting that “[s]everal California counties report that an increasing number of registered voters called up for jury duty write back saying they are ineligible because they aren't citizens”).


40

be illegal aliens,”103 while The New York Times noted that voting rolls in Arizona

“include[ ] people who are ineligible to vote, like illegal immigrants and

felons.”104 Following the 2004 general election, several people in Florida were

charged and/or convicted of illegally voting and making false citizenship

claims.105 Virginia’s population of illegal aliens was estimated in 2000 to be

103,000, up from 43,000 in 1990.106 Virginia’s photo identification requirement

addresses this problem, since most forms of the photo identification require proof

of legal status.

84. Besides these sources of inaccuracies, recent elections have witnessed a

substantial increase in voter registration fraud. Voter registration fraud occurs

when someone seeks to register a real person who is not eligible, an eligible voter

multiple times in different jurisdictions, or a fictional person. In the 2004

Presidential election, Chad Staton was convicted in Defiance County, Ohio of 103 See Letter from John M. Schaff, Utah Auditor General, to John L. Valentine, Utah State Senate President (Feb. 8, 2005), available at http://le/utah.gov/audit/05_01ilr.pdf.

104 Randal C. Archibald, Arizona Ballot Could Become Lottery Ticket, N.Y. TIMES, July 17, 2006, at A1.

105 See United States v. Chaudhary, a/k/a Usman Ali, No. 04-CR-00059 (N.D. Fla.); U.S. v. Mohsin Ali, No. 4:05-CR-47 (N.D. Fla.); U.S. v. Velasquez, No. 03-CR-20233 (S.D. Fla.) (involving a former candidate for the Florida legislature making false statements on his naturalization application); U.S. v. McKenzie, No. 04-CR-60160 (S.D. Fla.); U.S. v. Francois, No. 04-CR-20488 (S.D. Fla.); U.S. v. Exavier, No. 04-CR-60161 (S.D. Fla.); U.S. v. Lloyd Palmer, No. 04-CR-60159 (S.D. Fla.); U.S. v. Velrine Palmer, No. 04-CR-60162 (S.D. Fla.); U.S. v. Shivdayal, No. 04-CR-60164 (S.D. Fla.); U.S. v. Sweeting, No. 04-CR-20489 (S.D. Fla.); U.S. v. Lubin, No. 04-CR-60163 (S.D. Fla.); U.S. v. Bennett, No. 04-CR-14048 (S.D. Fla.); U.S. v. O'Neil, No. 04-CR-60165 (S.D. Fla.); U.S. v. Torres-Perez, No. 04-CR-14046 (S.D. Fla.); U.S. v. Phillips, 04-CR-80103 (S.D. Fla.); U.S. v. Bain Knight, No. 04-CR-14047 (S.D. Fla.).

106 U.S. Immigration and Naturalization Service, Office of Policy and Planning, Estimates of the Unauthorized Immigrant Population Residing in the United States: 1990 to 2000, at 15, Table 1 (Jan. 2003), available at: http://www.dhs.gov/sites/default/files/publications/Ill_Report_1211.pdf.


41

submitting almost 100 fraudulent voter registration forms for, among others, Dick

Tracy, Mary Poppins and Michael Jordan, for which he was reportedly paid in

crack cocaine.107 King County, Washington recently settled civil and criminal

vote fraud charges against an organization for submitting a large number of fake

or fraudulent voter registration cards that cost the election board significant

resources to address.108 The Senate debate on HAVA described the registration of

a number of dogs as voters in States across the country.109

85. Reports from across the county suggest the magnitude of such inaccurate and

fraudulent registrations. Thus, it has been reported: that Detroit’s voter rolls

contain “as many as 20,000 dead people and roughly 100,000 wrong

addresses;”110 that Florida had more than 64,000 dead people on its voter rolls in

December 2004;111 that 46,000 were illegally registered to vote in both Florida

and New York City,112 and 27,000 in both Florida and Ohio;113 while an audit

found that “nearly 10 percent, or 24,000 of [St. Louis’] registered voters, are

107 State of Ohio v. Chad Staton, No. 04-CR009020 (Defiance County, Ohio Oct. 22, 2004); Man Arrested After Voter Forms Turned in For Mary Poppins, Michael Jordan, Ohio Officials Say, THE ASSOCIATED PRESS, Oct. 19, 2004.

108 See Settlement & Compliance Agreement (July 27, 2007) available at http://www.metrokc.gov/proatty/news/2007/Settlement%20and%20Compliance%20Agreement.pdf.

109 See 148 Cong. Rec. S10489 (Oct. 16, 2004) (Statement of Sen. Bond); see also Keith Erwin, Woman Registers Her Dog to Vote; Prosecutors Growl, SEATTLE TIMES, June 22, 2007, at B1.

110 Lisa M. Collins, In Michigan, Even Dead Vote, DETROIT NEWS, Feb. 26, 2006, at 1A.

111 Geoff Dougherty, Dead Voters on Rolls, Other Glitches Found in 6 Key States, CHICAGO

TRIBUNE, Dec. 4, 2004, at C13.

112 Russ Buettner, Exposed: Scandal of Double Voters, N.Y. DAILY NEWS, Aug. 22, 2004, at 4.

113 Scott Hiaasen, Dave Davis and Julie Carr Smyth, Voters Double-Dip in Ohio, Fla., CLEVELAND PLAIN DEALER, Oct. 31, 2004.


42

either dead, [have] been convicted of a felony, [are] registered in another

jurisdiction or [are] otherwise questionable.”114

86. Election officials work diligently and spend considerable resources seeking to

maintain current and accurate voter rolls. However, as the foregoing

demonstrates, this is a substantial undertaking and voter rolls are not always

accurate. Requiring that a person seeking to vote provide Photo ID will assure

that the person on the roll is, in fact, a living, real person, and some assurance that

that person is actually eligible to vote.

C. Vote fraud occurs at the polling place.

87. Regrettably, vote fraud is not a myth. The bi-partisan Commission on Federal

Election Reform co-chaired by former President Jimmy Carter and former

Secretary of State James Baker concluded that “there is no doubt” that in-person

voting fraud occurs; “[i]n close or disputed elections … a small amount of fraud

could make the margin of difference.”115

88. America has an unfortunate history of vote fraud, and much of this fraud is

conducted at the polling place.116 In Deliver the Vote: A History of Election

114 Doug Moore, Auditor Criticizes Election Board, ST. LOUIS POST-DISPATCH, May 26, 2004, p. C4.

115 Commission on Federal Election Reform, supra note 53, at 18.

116 President Carter’s book TURNING POINT (1995) recounts the massive vote fraud he experienced in his first run for the Georgia State Senate; Carter was declared the victor only following litigation and a recount revealing this substantial fraud.

Professor Robert Pastor, a Carter-Baker Commission member and former Carter Administration official, has testified to his own disenfranchisement when he was informed someone had voted in his name before he appeared at the polls. Hearing before the U.S. Comm’n on Civil Rights, 111-18 (Oct. 13, 2006).


43

Fraud, An American Political Tradition – 1742-2004, Professor Tracey Campbell

sums up this history:

[W]e must … confront the uncomfortable truth that election fraud has been a common component of our nation’s electoral history, and, in the aggregate, undermines the only check that the people have over their leaders. This fundamental threat to our democratic birthright must no longer be dismissed by partisan finger-pointing….117

89. William Marcy “Boss” Tweed famously said, “I don’t think there was ever a fair

or honest election in the City of New York.”118 Corrupt machine politics and vote

fraud are a commonplace in the nation’s past; Indiana has its own notorious

history of such practices.119 The margin of victory in presidential elections has

been within the number of votes that were suspected of being obtained by

fraud.120

117 Tracy Campbell, DELIVER THE VOTE: A HISTORY OF ELECTION FRAUD, AN AMERICAN

POLITICAL TRADITION – 1742- 2004, AT 340 (2005). See also John Fund, STEALING ELECTIONS:HOW VOTER FRAUD THREATENS OUR DEMOCRACY (2004).

118 Andrew Gumbel, STEAL THIS VOTE: DIRTY ELECTIONS AND THE ROTTEN HISTORY OF

DEMOCRACY IN AMERICA 74-75 (2005). Voter impersonation was a device favored by Boss Tweed’s machine: “[r]epeaters”, often felons, were “given five dollars, as much liquor as they could hold, and a list of the recently deceased whose names they were to use to cast as many ballots as possible. ‘Vote early and often’ was Tammany’s much vaunted maxim, and that was exactly what these men intended to do.” Id.

119 As far back as the 1880s, Indiana was known for election fraud. See Campbell, supra n. 125, at 95 (describing the use of “floaters”— i.e., people voting multiple times — in Indiana in the 1888 presidential election; “[b]y the late 1880s, Indiana had acquired a notorious reputation in the annals of electoral corruption….”). In a nationally prominent scandal in 1914, federal authorities prosecuted 114 people for an election fraud scheme in Terre Haute that involved vote buying, voter intimidation, and fraudulent voter registrations that allowed some individuals to vote as many as 22 times. See id. at 147-49. More recently, the Indiana Supreme Court invalidated the 2003 mayoral primary in East Chicago because of an absentee-ballot fraud scheme. See Pabey v. Pastrick, 816 N.E.2d 1138 (Ind. 2004).

120 Richard A. Posner, BREAKING THE DEADLOCK: THE 2000 ELECTION, THE CONSTITUTION,AND THE COURTS 39-40 (2001). “Because of extensive vote fraud by Democrats as well as Republicans, it is uncertain whether Tilden really did win the popular vote [in the 1876 presidential election].” Id. at 39. In other elections the suspected vote fraud may not have been


44

90. Defendants do not suggest that America’s present election system is characterized

by large-scale vote fraud like the machine politics of yore. The fact that vote

fraud is less prevalent today than in the days of Boss Tweed is the result of

reforms that have improved our election process. But election reform (such as

that proposed by the Carter-Baker Commission and adopted by HAVA) is a

continuing process.

91. Vote fraud is not, unfortunately, merely of historical interest. Vote fraud,

including fraud practiced at the polling place remains a feature of recent

American elections. The Carter-Baker Commission provided several recent

examples:

92. The November 2004 elections [ ] showed that irregularities and fraud still occur.

In Washington, for example, where Christine Gregoire was elected governor by a

129-vote margin, the elections superintendent of King County testified during a

subsequent unsuccessful election challenge that ineligible ex-felons had voted and

that votes had been cast in the names of the dead…. In Milwaukee, Wisconsin,

investigators said they found clear evidence of fraud, including more than 200

cases of felons voting illegally and more than 100 people who voted twice, used

fake names or false addresses, or voted in the name of a dead person…. By one

estimate, for example, there were over 181,000 dead people listed on the voter

sufficient to change the outcome, but nevertheless served to undermine public confidence in the honesty of the election process. Id. at 40 (noting that “[t]here were serious allegations of fraud by Democrat election officials in Illinois and Texas” in John F. Kennedy’s 1960 election).


45

rolls in six swing states in the November 2004 elections, including almost 65,000

dead people listed on the voter rolls in Florida.121

93. The District Court noted that Indiana considered the experience of other States

when adopting its voter identification law, as it was fully entitled to do. Munro v.

Socialist Workers Party, 479 U.S. 189, 195-96 (1986). Specifically, Indiana

considered Missouri’s experience with vote fraud. That experience is instructive.

So too Virginia. When Virginia adopted its voter ID laws these and other

examples of vote fraud were known.

94. The “Pendergast Machine” in Kansas City so institutionalized vote fraud in

Missouri that the 1999-2000 Official Missouri State Manual (published by

Democrat Missouri Secretary of State Rebecca Cook) describes its practices in

detail.122 Missouri’s other major city, St. Louis, likewise has a “miserable

tradition” of vote fraud.123

95. The 2000 Presidential election in St. Louis became a matter of national attention

(and local embarrassment).124 The Los Angeles Times noted that in St. Louis:

121 Commission on Federal Election Reform, supra n. 53, at 4.

122 “Pendergast’s ability to turn out the vote was phenomenal. Not only did many of the poorest people in Kansas City vote regularly, but did so frequently at each election. Indeed, in some wards voter turnout often approached one hundred percent, when it did not exceed it. Even more miraculously, the dead would rise at each election in numbers that would astonish an expectant Christian.” Missouri's Most Important Politician, 1999-2000 OFFICIAL STATE

MANUAL 36-39.

123 Editorial, Miserable Tradition, ST. LOUIS POST DISPATCH, Dec. 11, 2000, at B2. For a more detailed summary of Missouri’s longstanding history of vote fraud, see, Mark F. (Thor) Hearne II, The Missouri Voter’s Protection Act – Real Election Reform for All Missouri Voters,ST. LOUIS LAWYER (June 2006).

124 For a more detailed account of the St. Louis 2000 election see Bruce Ashton, Dead Man Voting, THE RIVERFRONT TIMES, Apr. 4, 2002; The Florida Election Debacle: Can it Happen in Missouri?, JOUR. OF THE MISSOURI BAR, Nov-Dec 2001, at 294-300.


46

[t]he dearly departed seem to have quite a constituency around here. At least three dead aldermen registered to vote in Tuesday’s mayoral primary. So did one alderman’s deceased mother. And, a dead man was listed as the chief plaintiff in a lawsuit filed on election day last November. He was having trouble voting, the suit said, due to long lines at his polling station. So he petitioned a judge – successfully – to keep city ballot boxes open late.”125

96. Both Democrat Secretary of State Cook and her Republican successor

investigated the election; both found significant instances of vote fraud and

irregularities.126

97. Vote fraud continues to be a concern in other States as well. Thus, the Detroit

News reported that, “[a]cross Michigan, 132 people were listed as having voted in

November [2005]'s local elections although they had recently died….”127 The

New York Daily News reported that between 400 and 1,000 voters registered in

both Florida and New York City had voted twice in at least one election.128 In

September 2004, the Kansas City Star reported that more than 300 people may

have voted twice in the same election in Missouri in 2000 and 2002, and the

number “could be even higher.”129 The Denver Post reported in March 2005 that

125 Stephanie Simon, In St. Louis, Dead Are Causing Lively Debate with Their Votes, LOS

ANGELES TIMES, February 28, 2001, at A1.

126 Of the 1,366 votes cast by affidavit in St. Louis that Secretary Cook reviewed, she concluded that “135 people who were not registered to vote were permitted to vote at a polling place without a court order and without apparent authorization from [Election] Board Official.” Report by Secretary of State Rebecca McDowell Cook, Analysis and General Recommendation Report Regarding the November, 2000 General Election in the City of St. Louis 8-9 (Jan. 4, 2001); see also Report by Secretary of State Matt Blunt, Mandate for Reform: Election Turmoil in St. Louis (July 2001).

127 Collins, supra, n. 108.

128 Buettner, supra, n.120, at 4.

129 Greg Reeves, One Person, One Vote? Not Always, KANSAS CITY STAR, Sept. 5, 2004, at A1. Two people plead guilty to voting in both Kansas and Missouri in the 2000 and 2002 federal elections, in violation of 18 U.S.C. § 242. U.S. v. Scherzer, No. 04-CR-00401 (W.D. Mo.); U.S.


47

“[h]undreds of Coloradans are being investigated for voter fraud in the November

[2004] elections. Prosecutors in at least 47 counties are probing cases involving

accusations of forged signatures, felons voting or people who attempted to vote

twice.”130 It was reported in January 2005 that the FBI and U.S. Attorney’s office

were investigating 59 cases of double voting in Duval County, Florida.131 In

Broward County, officials referred at least 30 cases of double voting to the

Florida Department of Law Enforcement.132

98. A joint federal-local law enforcement task force in Milwaukee found “clear

evidence of fraud in the [Nov. 2, 2004] election,” including hundreds of felons

voting and “more than 100 individual instances of suspected double-voting,

voting in names of persons who likely did not vote, and/or voting in names

believed to be fake”; the task force also discovered the number of votes counted

in Milwaukee exceeded the number of persons recorded as voting by 4,500.133

The U.S. Attorney later downplayed notions of a “massive conspiracy” but

v. Goodrich, No. 04-CR-00401 (W.D. Mo.). Two others were charged with voting at two different Missouri locations. United States v. Jones, No. 05-CR-00257 (W.D. Mo.); United States v. Martin, No. 05-CR-00258 (W.D. Mo.).

130 Susan Greene & Karen E. Crummy, Voter Fraud Probed in State Double Dippers, DENVER POST, Mar. 24, 2005, at A-01.

131 David DeCamp, Double Voting Being Investigated, FLA. TIMES-UNION, Jan. 25, 2005, at B-1.

132 Amy Sherman, Double-Voters’ Names Going to Prosecutors, MIAMI HERALD, Nov. 14, 2004, at 5B.

133 Preliminary Findings of Joint Task Force Investigating Possible Election Fraud, DEPT.OF JUSTICE, May 10, 2005; Greg Borowski, Inquiry Finds Evidence of Fraud in Election: Cast ballots outnumber voters by 4,609, MILWAUKEE JOUR. SENT., May 11, 2005, at 1A (citing the newspaper's own investigation revealing 278 felons who illegally voted after reviewing only 38% of statewide ballots).


48

charged 18 people with felonies, including four cases of “double voting.” which

could involve impersonation fraud.134

99. As the district court in Crawford noted, “without a photo identification

requirement it is nearly impossible to detect in-person voter impersonation.”

Indiana Democratic Party v. Rokita, 458 F. Supp.2d 775, 826 (S.D. Ind. 2006);

see also Crawford v. Marion County Election Board, 472 F.3d 949 (7th Cir.

2008). Thus, the number of prosecutions, convictions, or documented reports of

in-person vote fraud undoubtedly underrepresents the actual incidence.135

100. Regrettably, while perhaps not as widespread as in the past, the types of vote

fraud practiced by “Boss” Tweed and the “Pendergast Machine” are still a very

real concern for election officials. Requiring that a person provide reliable

identification, to confirm that they are in fact the eligible voter listed on the voter

roll, is a common-sense safeguard against these vote fraud schemes, which

disenfranchise lawful voters and undermine public confidence in the legitimacy of

an election’s outcome.

134 Steve Schultze, No Vote Fraud Plot Found, Milwaukee Journal-Sentinel, Dec. 6, 2005, at A1.

135 A concrete example is provided in Milwaukee, where a task force found “widespread record keeping failures” that would create “difficulties proving criminal conduct beyond a reasonable doubt in a court of law.” See Preliminary Findings of Joint Task Force Investigating Possible Vote Fraud. Dept. of Justice, May 10, 2005. Greg Borowski, Inquiry Finds Evidence of Fraud in Election: Cast Ballots Outnumber Voters by 4,609, Milwaukee Jour-Sent., May 11, 2005, at 1A. The U.S. Attorney lamented that “I don't know how you are going to prove a case when there is no paper trail.” .


49

D. Photo identification requirements enjoy broad bi-partisan support.

101. Although Plaintiffs claim that the purpose behind Virginia’s photo ID law is

improperly partisan, the fact is that a nationwide bi-partisan consensus has

emerged in favor of photo ID as a reasonable confidence-building, fraud-

prevention measure.

E. Photo identification requirements are broadly supported by voters themselves.

102. Requiring a voter to identify himself or herself with photo identification enjoys

broad, consistent, bi-partisan public support.136 Nationally, an April 2006 Wall

Street Journal/NBC poll found that more than 80% of U.S. citizens support the

requirement that a person show a photo ID before voting.137 This included the

support of an overwhelming majority of Democrats, Republicans and members of

minority communities.

103. When the Photo ID issue is placed on the ballot, it receives strong bi-partisan

support. Albuquerque voters, with the support of Hispanic Democrat Mayor

Chavez, adopted a Photo ID requirement for all Albuquerque elections.138 In

136 While this consistently strong, bi-partisan support does not decide the constitutional issues, it counters Petitioners’ claim of improperly partisan motives, and confirms that Photo ID requirements will increase public confidence in the integrity of the election process.

137 See NBC/WALL-STREET JOUR. Survey, available at http://online.wsj.com/public/resources/documents/poll20060426.pdf (62% "strongly favored" Photo ID requirement, while an additional 19% "mildly favored" it).

138 Polling showed photo ID with overwhelming support “among Republicans and Democrats, Anglos and Hispanics and across income levels” in Albuquerque; a pre-election poll showed the measure supported by a 77 to 17% margin, including 92% of Republicans and 66% of Democrats. Dan McKay, Voter Picture ID Has Wide Support, ALBUQUERQUE JOUR., Aug. 24, 2005, at A1. Albuquerque Mayor Martin Chavez, a Democrat, endorsed the measure, emphasizing that “[i]ntegrity of the voting process is essential.” Jim Ludwick, Critics: Mail-in Voters Should Show ID, Too, ALBUQUERQUE JOUR., Sept. 12, 2005, at A1. Albuquerque “City


50

Arizona voters passed a popular state-wide initiative (Proposition 200) that

required prospective voters to present proof of citizenship before registering to

vote.139

104. Voter identification requirements – including photo ID requirements – have

emerged as a national consensus.140 When the issue has been placed before

voters, it enjoys overwhelming, consistent, bi-partisan support.

CONCLUSIONS OF LAW

I. The three plaintiffs do not have standing to challenge Virginia’s voter identification requirements.

Plaintiffs lack standing to challenge Virginia’s law requiring a person identify himself

before casting a ballot. The two individual plaintiffs, Lee and Aida, possess those documents

necessary to vote and to have their ballot counted. Thus, Lee and Aida’s right to vote is not

burdened nor impaired by the provisions of Virginia law they challenge in this lawsuit. The third

plaintiff, the Democrat Party of Virginia, fails to identify any member of the Party (or, for that

matter, any person) whose right to vote is, or has been, burdened or impaired by the challenged

provisions of Virginia law. Thus, the Democrat Party lacks standing to challenge a law that does

not impair or burden the right of any identified member of the Democrat Party. Clerk Judy Chavez and other election officials said the rule change didn’t cause any problems” in the first election in which it was implemented. New ID Rule Passes Test, ALBUQUERQUE

JOUR., Nov. 16, 2005, at B1.

139 See Lawsuit Off Base In Challenging Voter ID Rules, ARIZ. DAILY STAR, May 15, 1006, at A6. This is the measure at issue in Purcell v. Gonzalez, 127 S. Ct. 5 (2006) (per curiam).

140 See also Developments in the Law: Voting and Democracy, 119 HARV. L. R. 1127 (2005); Michael Barone, Web Blog, Message to the Secretaries of State: 1679 and 2006, U.S.NEWS AND WORLD REPORT, Feb. 6, 2006 at http://www.usnews.com/blogs/barone/2006/2/6/message-to-the-secretaries-of-state-1679-and-2006.html (remarks at meeting of the National Association of Secretaries of State).


51

Standing is not some procedural nicety. Standing goes to the heart of this Court’s

jurisdiction. Article III of our Constitution “confers on federal courts the power to resolve only

‘cases’ and ‘controversies.’” Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253, 267 (4th Cir.

2011). To meet the Constitution’s case or controversy requirement, Lee, Aida, and the Democrat

Party must demonstrate, among other things, that they have standing to bring the specific

challenge they assert. Id. at 268 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

(1992)). In order to have standing, Lee, Aida, and the Democrat Party must demonstrate:

(1) [Lee, Aida and the Democrat Party] have suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Bishop v. Bartlett, 575 F.3d 419, 423 (4th Cir. 2009).141

In addition to this constitutional Article III standing requirement, courts also consider

“judicially self-imposed limits on the exercise of federal jurisdiction,” commonly referred to as

prudential standing. Doe v. Virginia Dept. of State Police, 713 F.3d 745, 753 (4th Cir. 2013),

cert. denied, 134 S. Ct. 1538 (2014). In order to invoke federal jurisdiction, a plaintiff must

allege facts sufficient to meet both the constitutional and prudential requirements of standing.

Bishop, 575 F.3d at 423 (citing Allen v. Wright, 468 U.S. 737, 751 (1984)). Prudential standing

means Lee, Aida and the Democrat Party must satisfy the following three requirements:

First, when the asserted harm is a generalized grievance shared in substantially equal measure by all or a large class of citizens, that harm alone normally does not warrant exercise of jurisdiction. Second, the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties. Third, a plaintiff's grievance must arguably fall within the zone of interests protected or regulated by the statutory provision or constitutional guarantee invoked in the suit.

141 Quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs, Inc., 528 U.S. 167, 180–81 (2000).


52

Bishop, 575 F.3d at 42.142

Section 2 of the Voting Rights Act further limits the standing of the parties attempting to

bring this suit. As this Court recently held, standing to “bring suit under the Voting Rights Act is

now limited to the Attorney General and ‘aggrieved persons.’” Perry-Bey v. City of Norfolk, 678

F. Supp. 2d 348, 362 (E.D. Va. 2009). Aggrieved persons under the statute are those “whose

voting rights have been denied or impaired.” Id. (internal quotation omitted) (emphasis

added).143

Whether the three plaintiffs bringing this lawsuit have standing to bring these claims has

already been subject to a motion to dismiss under Rule 12(b)(1) and (6). This Court allowed the

case to proceed based upon the allegations in the pleadings. We reiterated our concern about the

plaintiffs’ standing in a motion for partial summary judgment under Rule 56. This Court has

deferred considering that until the conclusion of trial. Today we reiterate our concern that this

Court lacks jurisdiction to consider the plaintiffs’ challenge to Virginia’s law because the three

plaintiffs bringing this action have not been aggrieved, are not personally (or organizationally)

burdened by the law they challenge. As such, these three plaintiffs bring a lawsuit that asserts

only generalized grievances and does not involve any specific or concrete injury suffered by any

of the plaintiffs.

This important threshold issue of standing has been briefed and argued and is before this

Court in the pending motion for summary judgment. There is no need to belabor this point.

142 Internal citations and quotations omitted.

143 This same limitation is applied in Fourteenth Amendment and Fifteenth Amendment equal protection voting-rights cases. Id.


53

Thus we refer the Court to our previous discussion in our motion to dismiss and our motion for

summary judgment.144

Because none of the three plaintiffs bringing this lawsuit have standing to assert an Equal

Protection Clause challenge or a Section 2 Voting Rights Act challenge, we need proceed no

further and this case should be dismissed. In the alternative, however, we address the merits of

their argument this Court should invalidate Virginia’s voter identification law and the

conclusions of law relevant to the Plaintiffs’ challenge.

II. Virginia’s rule requiring a person to reliably identify himself before casting a ballot does not violate the First or Fourteenth Amendment.

Plaintiffs say Virginia’s rule that a person identify himself by providing one of the

designated forms of photo identification before casting a ballot violates the First and Fourteenth

Amendment to our Constitution.

The First Amendment provides, “Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the

press; or the right of the people peaceably to assemble, and to petition the government for a

redress of grievances.” The First Amendment protects the right to political association and

reasonable access to the ballot. See, Kusper v. Pontikes, 414 U.S. 51 (1973), Williams v. Rhodes,

393 U.S. 23, (1968) and Wright v. Mahan, 478 F.Supp 468 (E.D. Va., 1979).

The Fourteenth Amendment provides, “No state shall make or enforce any law which

shall abridge the privileges or immunities of citizens of the United States; nor shall any state

deprive any person of life, liberty, or property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the laws.” The Equal Protection Clause of

144 See Dkt. Nos. 49, 66 and 146 and those exhibits lodged in support of these motions.


54

the Fourteenth Amendment provides “the Constitution ‘neither knows nor tolerates classes

among citizens.’ … those words now are understood to state a commitment to the law's

neutrality where the rights of persons are at stake. The Equal Protection Clause enforces this

principle …” Romer v. Evans, 517 U.S. 620, 623, (1996).145

On the basis of these two constitutional provisions the three plaintiffs bringing this

lawsuit ask this Court to hold that Virginia’s law requiring a person provide photo identification

before casting a ballot to be unconstitutional. No authority supports the plaintiffs Equal

Protection Clause theory. In Personnel Adm’r of Mass. v. Feeney the Supreme Court explained,

The equal protection guarantee of the Fourteenth Amendment does not take from the States all power of classification. Most laws classify, and many affect certain groups unevenly, even though the law itself treats them no differently from all other members of the class described in the law. When the basic classification is rationally based, uneven effects upon particular groups within a class are ordinarily of no constitutional concern. The calculus of the effects, the manner in which a particular law reverberates in a society, is a legislative and not a judicial responsibility.

442 U.S. 256, 271 (1979).146

The Supreme Court continued and instructed lower courts that when “assessing an equal

protection challenge, a court is called upon only to measure the basic validity of the legislative

classification.” Id. at 272.147 The “basic classification” the plaintiffs challenge is a classification

145 Quoting Justice Harlan’s dissenting opinion in Plessy v. Ferguson, 163 U.S. 537, 559, (1896). Plessy was famously overturned by Brown v. Board of Ed., 347 U.S. 483 (1954) and Justice Harlan’s dissent in Plessy was vindicated.

146 Emphasis added and citing Mass. Bd. Of Retirement v. Murgia, 427 U.S. 307, 314 (1976); New York Transit Authority v. Beazer, 440 U.S. 568 (1979); Jefferson v. Hackney, 406 U.S. 535, 548 (1972); and James v. Valtierra, 402 U.S. 137 (1971). For the proposition that the “calculus of the effects” is a legislative not judicial responsibility the Court cited Dandridge v. Williams, 397 U.S. 471 (1970); and San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1 (1973).

147 Citing Barrett v. Indiana, 229 U.S. 26, 29-30 (1913); and Railway Express Agency v. New York, 336 U.S. 106 (1949).


55

between (a) persons who possess one of the designated forms of identification documents or who

are able to obtain one for free and (b) persons who do not possess a designated form of

identification document and cannot get one for free. We note again that one of the fatal flaws of

the plaintiffs’ Equal Protection challenge is that there is no plaintiff in the second group and they

have not identified any person in this second group.

A. Virginia’s voter identification requirement satisfies the Supreme Court’sBurdick standard of review.

The plaintiffs responded to our “argument that Plaintiffs failed to plead cognizable First

and Fourteenth Amendment claims [because the Plaintiffs] focus exclusively on disparate impact

on the basis of race, but Plaintiffs have not plead such a claim. Rather, Anderson-Burdick

governs Plaintiffs’ First and Fourteenth Amendment claims.”148 So, we begin from a common

point of understanding. All agree the Supreme Court’s “Anderson-Burdick” standard is the

measure by which the plaintiffs’ challenge to Virginia’s voter identification law is evaluated.

The five-member majority in Anderson v. Celebrezze, 460 U.S. 780 (1983) held, “The

inquiry is whether the challenged restriction unfairly or unnecessarily burdens the ‘availability

of political opportunity’” Id. at 793.149 In Burdick v. Takushi, 504 U.S. 428, 432 (1992). The

Supreme Court noted it was an “erroneous assumption that a law that imposes any burden upon

the right to vote must be subject to strict scrutiny. Our cases do not so hold.” Id. The Court

noted that while “‘voting is of the most fundamental significance under our constitutional

structure.’ It does not follow, however, that the right to vote in any manner and the right to

associate for political purposes through the ballot are absolute.” Id. at 433. The Court

instructed:

148 Plaintiffs’ response in opposition, Dkt. No. 60 p. 7 (emphasis added).

149 Citing and quoting, Clements v. Fashing, 457 U.S. 957, 964 (1982) (plurality opinion), quoting Lubin v. Panish, 415 U.S. 709, 716 (1974) (emphasis added).


56

Common sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections; ‘as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic process.’

Election laws will inevitably impose some burden upon individual voters. Each provision of a code, ‘whether it governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself, inevitably affects – at least to some degree – the individual’s right to vote and his right to associate with others for political ends.’ ***Accordingly, the mere fact that a State’s system ‘creates barriers … tending to limit the field of candidates from which voters might choose … does not itself compel close scrutiny.

Burdick, 504 U.S. at 433.150

The Burdick Court then proceeded to specify the standard this Court should use to

evaluate Virginia’s voter identification requirement.

The rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights….when those rights are subject to ‘severe’ restrictions, the regulation must be ‘narrowly drawn to advance a state interest of compelling importance.’ But when a state election law provision imposes only ‘reasonable, nondiscriminatory restrictions’ upon the First and Fourteenth Amendment rights of voters, ‘the State’s important regulatory interests are generally sufficient to justify’ the restrictions.

Burdick, 504 U.S. at 434.151

Virginia’s voter identification requirements – especially when considered in the totality

of Virginia’s election administration –are ‘reasonable, nondiscriminatory restrictions’ that satisfy

the Burdick inquiry. The two individual plaintiffs are not burdened by the requirement to

provide photo identification because they possess the requisite photo identification and have

voted in almost every past election. The Democrat Party has failed to identify a single person

who is a member of the party (or any other person in Virginia) who is an eligible Virginia voter

150 Quoting Storer 415 U.S. at 730 and Bullock v. Carter, 405 US 134, 143 (1972) and citing McDonald v. Bd. Of Election Comm’rs of Chicago, 394 U.S. 802 (1969) and Anderson, 460 U.S. at 788.151 Quoting Norman v. Reed, 502 U.S. 279, 289 (1992), and Anderson, 460 U.S.at 788.


57

and who will be denied the right to vote in any future election because of the requirement they

establish their identity by providing one of the designated forms of identification documents.

And should any Virginian not already possess one of the many forms of acceptable

identification, the burden of obtaining a free voter identification card is no greater than the

burden of registering to vote.

An example of a “severe” restriction subject to rigorous scrutiny was the Illinois law that

in elections for offices in political subdivisions (like the Mayor of Chicago) new political parties

and independent candidates had to obtain the signatures of 5% of the number of persons who

voted in the previous election for the designated office no matter how high that number may be.

At the same time Illinois law allowed new parties to qualify for statewide elections by gathering

only 25,000 signatures. Thus a party had to collect 60,000 signatures to run for mayor of

Chicago but could run for statewide office with only 25,000 signatures. See Illinois Bd. Of

Elections v. Socialist Workers Party, 440 U.S. 173 (1979); see also Norman v. Reed, 502 U.S.

279, 297 (1992) (Scalia dissenting and explaining the nature of the requirement struck down in

Socialist Workers Party).

By no stretch can Virginia’s voter identification requirements be considered a “severe”

restriction.

B. Virginia has a compelling interest in preserving the integrity of its election process and Virginia’s General Assembly had many legitimate reasons to require a person to provide photo identification before casting a ballot.

“Free and honest elections are the very foundation of our republican form of

government. Hence any attempt to defile the sanctity of the ballot cannot be viewed with

equanimity.” United States v. Classic, 313 U.S. 299, 329 (1941). The Supreme Court explained

“A State indisputably has a compelling interest in preserving the integrity of its election

process.” Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 231 (1989).


58

In Purcell v. Gonzalez the Supreme Court reaffirmed its holding in Eu and explained,

“[c]onfidence in the integrity of our electoral processes is essential to the functioning of our

participatory democracy. Voter fraud drives honest citizens out of the democratic process and

breeds distrust of our government. Voters who fear their legitimate votes will be outweighed by

fraudulent ones will feel disenfranchised.” 549 U.S. 1, 4 (2006).

Many times the Court has explained that States have a compelling interest in ensuring a

free, honest, and trustworthy election process. This Court has also recognized that States may

act preemptively to prevent corruption of that process. As the Court observed over a century

ago:

In a republican government, like ours, where political power is reposed in representatives of the entire body of the people, chosen at short intervals by popular elections, the temptations to control these elections by violence and by corruption is a constant source of danger…. Such has been the history of all republics, and, though ours has been comparatively free from both these evils in the past, no lover of his country can shut his eyes to the fear of future danger from both sources.

Ex parte Yarbrough (The Ku-Klux Cases), 110 U.S. 651, 666 (1884).

Vote fraud threatens our government’s legitimacy since it undermines public confidence

in an election’s outcome and denies all citizens their constitutional right to have their votes

counted equally with other, lawful votes. As the Court observed in Bush v. Gore, 531 U.S. 98

(2000): “‘the right of suffrage can be denied by debasement or dilution of the weight of a

citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.’” Id.

at 105, quoting Reynolds v. Sims, 377 U.S. 533, 555 (1964).

The Court’s decisions also recognize that, to assure the integrity of elections, States must

be given the opportunity to determine the appropriate and feasible protective measures. Thus, in

holding that election regulations are subject only to a “flexible standard” of review the Court in

Burdick emphasized that state regulation is essential to assuring honest elections, and that States


59

must have flexibility to establish the specific procedures under which local elections will be

administered:

[T]o subject every voting regulation to strict scrutiny and to require that the regulation be narrowly tailored to advance a compelling state interest … would tie the hands of States seeking to assure that elections are operated equitably and efficiently…. The Constitution provides that States may prescribe “[t]he Times, Places and Manner of holding Elections for Senators and Representatives,” Art. I, § 4, cl. 1, and the Court therefore has recognized that States retain the power to regulate their own elections.”

Burdick, 504 U.S. at 433-34.

Similarly, Clingman v. Beaver, 544 U.S. 581 (2005), emphasizes that “subject[ing]

virtually every electoral regulation to strict scrutiny [would] hamper the ability of States to run

efficient and equitable elections.” The Court explained, “[t]he Constitution does not require that

result, for it is beyond question that States may, and inevitably must, enact reasonable

regulations of parties, elections, and ballots to reduce election- and campaign-related disorder. Id

at 593.

States need not wait until after they have been robbed to begin locking the door. They

may address potential problems preemptively, and need not wait until they mature into a full-

fledged crisis or an overwhelming amount of vote fraud. “Legislatures * * * should be permitted

to respond to potential deficiencies in the electoral process with foresight rather than reactively,

provided that the response is reasonable and does not significantly impinge on constitutionally

protected rights.” Munro v. Socialist Workers Party, 479 U.S. 189, 195-96 (1986).

As the district court in Crawford noted, “without a photo identification requirement it is

nearly impossible to detect in-person voter impersonation.” Indiana Democratic Party v. Rokita,

458 F. Supp.2d 775, 826 (S.D. Ind. 2006); see also Crawford v. Marion County Election Board,

472 F.3d 949 (7th Cir. 2008). Thus, the number of prosecutions, convictions, or documented


60

reports of in-person vote fraud undoubtedly underrepresents the actual incidence of such

fraud.152

Regrettably, while perhaps not as widespread as in the past, the types of vote fraud

practiced by “Boss” Tweed and the “Pendergast Machine” are still a very real concern for

election officials. Requiring that a person provide reliable identification, to confirm that they are

in fact the eligible voter listed on the voter roll, is a common-sense safeguard these vote fraud

schemes, which disenfranchise lawful voters and undermine public confidence in the legitimacy

of an election’s outcome.

1. The Bi-Partisan Carter-Baker Commission recommended a photo identification requirement substantially stricter than the requirement Virginia adopted.

In the aftermath of the 2000 election, Presidents Carter and Ford co-chaired a bi-partisan

commission (the Commission on Federal Election Reform) that investigated the conduct of

federal elections and recommended changes in election administration. Responding to these

recommendations, Congress passed the Help America Vote Act of 2002 (“HAVA”)153 with

broad bipartisan support. HAVA was intended to “change the system to make it easier to vote

and tougher to cheat.” 148 Cong. Rec. S10488 (2002) (statement of Sen. Bond). The legislation’s

“one central goal [ ] was to make it easier to vote in America and much harder to corrupt our

Federal election system.” Id. at S2527 (statement of Sen. Dodd).154

152 A concrete example is provided in Milwaukee, where a task force found “widespread record keeping failures” that would create “difficulties proving criminal conduct beyond a reasonable doubt in a court of law.” See supra See supra n. 132The U.S. Attorney lamented that “I don't know how you are going to prove a case when there is no paper trail.” Schultze, supra n. 133, at A1.153 Pub. L. No. 107-252, 116 Stat. 1666 (codified in scattered sections of 2, 5, 10, 36, and 42 U.S.C. § 15481).

154 President Bush noted the Carter-Ford Commission’s recommendations “helped inspire this legislation”; “our nation is grateful for their work on election reform and for all they have


61

HAVA demonstrated bi-partisan recognition of the three principles essential to any fair

and honest election: (1) a current and accurate voter roll; (2) safeguards to assure that the person

casting a ballot is reliably identified as the individual registered; and (3) accurate and unbiased

procedures to properly count and report each vote cast.

Among other things, HAVA Section 15483(a)(5)(A)(ii) was specifically included to

address vote fraud, and provides minimum requirements for identification of voters who register

by mail, including presentation of photographic identification.155 Although HAVA requires

photographic identification for persons casting a ballot for the first time following a mail-in

registration, Section 15483(a)(5)(A)(ii) also provides non-Photo ID alternatives, including “a

current utility bill, bank statement, government check, paycheck, or other government document

that shows the name and address of the voter.”

These identification standards are a “floor”, not a “ceiling.” HAVA explicitly provides

that the relevant provisions “are minimum requirements,” and shall not “be construed to prevent

a State from establishing election technology and administration requirements that are more strict

than” provided in HAVA, “so long as such State requirements are not inconsistent with the

Federal requirements.” 42 U.S.C. § 15484 (2006).

The Carter-Baker Commission was convened after the 2004 presidential election. This

Commission was the successor to the Carter-Ford Commission and included many of the same

members. The Carter-Baker Commission’s Final Report represents a high-water mark in the

given to America.” Remarks by President at Signing of H.R. 3295, The Help America Vote Act of 2002, October 29, 2002, 2002 WL 31415995 (White House).

155 See Hearing on H.R. 3295 Before the H. Comm. on the Judiciary, 107th Cong. (2001), available at 2001 WL 1552086 (F.D.C.H.) (statement of Rep. F. James Sensenbrenner, Jr.) (identifying vote fraud as a significant motive behind HAVA’s anti-fraud provisions); Remarks by President Bush at Signing of H.R. 3295, Help America Vote Act of 2002 (Oct. 29, 2002), 2002 WL 31415995 (White House), at *2.


62

development of national, bi-partisan, consensus recommendations on post-HAVA election

reform.

Among its other recommendations, the Commission wrote:

To ensure that persons presenting themselves at the polling place are the ones on the registration list, the Commission recommends that states require voters to use the REAL ID[156] card, which was mandated in a law signed by the President in May 2005. The card includes a person’s full legal name, date of birth, a signature (captured as a digital image), a photograph, and the person’s Social Security number. This card should be modestly adapted for voting purposes to indicate on the front or back whether the individual is a U.S. citizen. States should provide an EAC-template ID with a photo to non-drivers free of charge.157

In Crawford, the Supreme Court embraced the Carter-Baker Commission report and

recommendations. Both the lead opinion and Justice Breyer’s dissent found the Carter-Baker

Commission to be authoritative and the Court relied upon the Commission’s report in reaching

its decision.

Like Justice Stevens, I give weight to the fact that a national commission, chaired by former President Jimmy Carter and former Secretary of State James Baker, studied the issue and recommended that States should require voter photo IDs. See Report of the Commission on Federal Election Reform, Building Confidence in U.S. Elections § 2.5 (Sept.2005) (Carter–Baker Report), App. 136–144. Because the record does not discredit the Carter–Baker Report or suggest that Indiana is exceptional, I see nothing to prevent Indiana's Legislature (or a federal court considering the constitutionality of the statute) from taking account of the legislatively relevant facts the report sets forth and paying attention to its expert conclusions.

156 The Federal REAL ID Act of 2005, Pub. L. No. 109-13, div. B, 119 Stat. 231, 302 (to be codified in scattered sections of 8 and 49 U.S.C. § 30301) established requirements that states must meet by 2008 for the issuance of photo identification that will be necessary to enter a federal building, board a plane or open a bank account. § 202, 119 Stat. at 312.

157 Comm. on Federal Election Reform, supra n. 53, at 18-21. Besides President Carter and Secretary Baker, this recommendation was supported by Commissioners Robert Pastor, Betty Castor, Rita Dimartino, Lee Hamilton, Kay Coles James, Benjamin Ladner, David Leebron, Nelson Lund, Shirley Malcom, Bob Michel, Susan Molinari, Robert Mosbacher, Ralph Munro, Jack Nelson, Tom Philips, and Sharon Priest. Commissioners Tom Daschle, Spencer Overton, and Raul Yzaguirre dissented.


63

Crawford, 553 U.S. at 237-38(Breyer, J., dissenting).

2. Photo ID Requirements Are Broadly Supported by Voters Themselves.

Requiring a voter to identify himself or herself with Photo ID enjoys broad, consistent,

bi-partisan public support.158 Nationally, an April 2006 Wall Street Journal/NBC poll found that

more than 80% of U.S. citizens support the requirement that a person show a photo ID before

voting.159 This included the support of an overwhelming majority of Democrats, Republicans

and members of minority communities. Other public opinion – including public opinion polling

in Virginia – finds similar levels of public support. See Facts ¶65.

When the Photo ID issue is placed on the ballot, it receives strong bi-partisan support.

Albuquerque voters, with the support of Hispanic Democrat Mayor Chavez, adopted a Photo ID

requirement for all Albuquerque elections.160 In Arizona voters passed a popular state-wide

158 While this consistently strong, bi-partisan support does not decide the constitutional issues, it counters Plaintiff’s claim of improperly partisan motives, and confirms that photo identification ID requirements will increase public confidence in the integrity of the election process.

159 See NBC/WALL-STREET JOUR. Survey, available at: http://online.wsj.com/public/resources/documents/poll20060426.pdf (62% "strongly favored" Photo ID requirement, while an additional 19% "mildly favored" it).

160 Polling showed photo ID with overwhelming support “among Republicans and Democrats, Anglos and Hispanics and across income levels” in Albuquerque; a pre-election poll showed the measure supported by a 77 to 17% margin, including 92% of Republicans and 66% of Democrats. Dan McKay, Voter Picture ID Has Wide Support, ALBUQUERQUE JOUR., Aug. 24, 2005, at A1. Albuquerque Mayor Martin Chavez, a Democrat, endorsed the measure, emphasizing that “[i]ntegrity of the voting process is essential.” Jim Ludwick, Critics: Mail-in Voters Should Show ID, Too, ALBUQUERQUE JOUR., Sept. 12, 2005, at A1. Albuquerque “City Clerk Judy Chavez and other election officials said the rule change didn’t cause any problems” in the first election in which it was implemented. New ID Rule Passes Test, ALBUQUERQUE

JOUR., Nov. 16, 2005, at B1.


64

initiative (Proposition 200) that required prospective voters to present proof of citizenship before

registering to vote.161

The requirement that a person establish his eligibility as a lawful voter with a photo

identification document has emerged as a national consensus.162 When the issue has been placed

before voters, it enjoys overwhelming, consistent, bi-partisan support.

3. At least thirty-three states require some form of photo identification.

At least 33 states currently require every voter to provide identification before casting a

ballot;163 according to the National Conference of State Legislatures, of these 33, seventeen

require some form of photo identification. Among the jurisdictions requiring photo

identification to vote are ones subject to federal pre-clearance under Section 5 of Voting Rights.

(This was prior to Shelby County v. Holder 133 S. Ct. 2612 (2013)). The Justice Department has

approved voter identification requirements in Virginia, Georgia, Arizona and New Mexico.

Georgia’s photo identification requirement was approved twice.164

161 See Lawsuit Off Base In Challenging Voter ID Rules, ARIZ. DAILY STAR, May 15, 1006, at A6. This is the measure at issue in Purcell v. Gonzalez, 549 U.S. 1 (2006) (per curiam).

162 See also Developments in the Law: Voting and Democracy, 119 HARV. L. R. 1127 (2005); Michael Barone, Web Blog, Message to the Secretaries of State: 1679 and 2006, U.S.NEWS AND WORLD REPORT, Feb. 6, 2006, available at: http://www.usnews.com/blogs/barone/2006/2/6/message-to-the-secretaries-of-state-1679-and-2006.html (remarks at meeting of the National Association of Secretaries of State).

163 See National Conference of State Legislatures, Voter Identification Requirements, updated 1/4/16, available at: http://www.ncsl.org/research/elections-and-campaigns/voter-id.aspx#Laws in Effect.

For a more detailed discussion of the voter identification requirements in the various states, see Brief of Texas, et al. as Amici Curiae Supporting Respondents.

164 See, e.g., U.S. Department of Justice, Letter to Sen. Bond, Feb. 26, 2002, at http://www.usdoj.gov/crt/voting/hava/bond_ ltr.htm (“Far from automatically violating Section 5, identification requirements can be an efficient and effective means of combating voter fraud.”).


65

There are of course differences among the various states’ laws, and none are precisely

identical. However, the legislation many states have adopted demonstrates that the principle of

requiring a voter to provide some form of reliable identification (generally a government-issued

photo identification) enjoys broad support.

4. Numerous other countries require some form of photo identification.165

The interest in conducting honest elections, and concerns over vote fraud, are not unique

to the United States. Former President Carter is often called upon to visit other nations and

observe the conduct of their elections, or to recommend measures that other nations can take to

safeguard the integrity of their election process.166

The Carter-Baker Commission noted that “[v]oters in nearly 100 democracies use a photo

identification card without fear of infringement of their rights.”167 Mexico, for example, requires

strict voter identification to assure voter confidence in a fair and honest election.

Mexico spends much more than the U.S. on measures to prevent vote fraud. All voters in Mexico must present voter IDs at the polls, which include not only a photo but also a thumbprint. The IDs themselves are essentially counterfeit-proof, with special holographic images, imbedded security codes, and a magnetic strip with still more security information. As an extra precaution, voters' fingers are dipped in indelible ink to prevent them from voting multiple times.168

Observers have noted that these strict voter registration and identification requirements

have done nothing to suppress turnout: “in the three presidential elections Mexico has conducted 165 We do not suggest that the election practices of other nations determine whether a specific measure passes muster under the United States Constitution. Rather, the widespread adoption of Photo ID requirements, as a means to prevent vote fraud and assure the integrity of the election process, shows this is an internationally recognized “best practice.”

166 Committee for Federal Election Reform, supra n. 53, at 5.

167 Id.

168 John R. Lott Jr. & Maxim C. Lott, Look South: Americans could learn from Mexican elections, NATIONAL REVIEW ON-LINE, July 6, 2006, at http://article.nationalreview.com (also noting that Mexican voters are required to appear in-person both to apply for Photo ID card, and to receive the issued card).


66

since the National Election Commission reformed the election laws ‘68% of eligible citizens

have voted, compared to only 59% in the three elections prior to the rule changes.’ People are

more likely to vote if they believe their ballot will be fairly counted.”169

5. Requiring photo identification increases public confidence, and increased public confidence increases participation.

The Supreme Court has held that “the prevention of corruption or its appearance

constitutes a sufficiently important interest to justify political contribution limits,” a direct

restriction on political expression. McConnell v. Federal Election Comm'n, 540 U.S. 93, 143

(2003). Even in that context – where the exercise of individual rights is directly and significantly

curtailed – the Court has recognized that “the appearance of undue influence * * * ‘could

jeopardize the willingness of voters to take part in democratic governance.’” Id. at 144 (citation

omitted).

Thus, even apart from the use of photo ID requirements to prevent actual vote fraud, the

fact that such requirements will increase public confidence in the integrity of the election process

provides a separate justification for such measures.

Increasing public confidence in the election process was one of the primary motivations

for the Carter-Baker Commission’s recommendations. As the Commission noted,

Elections are the heart of democracy. They are the instrument for the people to choose leaders and hold them accountable. At the same time, elections are a core public function upon which all other government responsibilities depend. If elections are defective, the entire democratic system is at risk. Americans are losing confidence in the fairness of elections, and while we do not face a crisis today, we need to address the problems of our electoral system.

Our Commission on Federal Election Reform was formed to recommend ways to raise confidence in the electoral system.170

169 John Fund, OpinionJournal, How to Run a Clean Election, What Mexico can teach the United States, WALL STREET JOUR., July 10, 2006, at http://www.opinionjournal.com/diary/?id=110008630.


67

The test of our nation’s election system is not found in landslides, but when the outcome

turns upon a handful of votes. As this Court and our nation learned in 2000, even the presidency

can be decided by several hundred votes. That election was not unique. In 2006, control of the

United States Senate was decided by less than 4,000 votes: the margin of victory in the Montana

and Virginia Senate races was 3,562, and 9,329, respectively; control of the Senate turned upon

the outcome of either race. A number of Congressional races were similarly determined by

several hundred votes. In 2004 Washington State experienced a several month ordeal during

which the outcome of their Governor's race was decided in the course of three recounts by a

margin of 129 votes.171

The point is this: vote fraud need not be massive or widespread to undermine an

election’s outcome. Several hundred, or several thousand, votes can determine the Presidency,

control of Congress, or the victor in a state-wide election.

6. Clear and uniform photo ID requirements facilitate expeditious, consistent processing of voters at the polls.

The conduct of American elections depends to a significant degree upon the participation

of tens of thousands of poll workers, who generally serve on a volunteer (or nominally

compensated) basis, and who are not full-time government employees. There is limited

opportunity to train these civic-minded election workers.

Some states allow voters to simply identify themselves at the poll; unless challenged, this

self-identification is self-validating. In other states, voters are merely required to sign a voter

register (leaving it to inexpert poll workers to then compare that signature to one on file). In still

other states, existing laws permit voters to appear with a veritable smorgasbord of forms of

170 See Commission on Federal Election Reform, supra, n. 53, at ii.

171 Id. at 4.


68

identification, singly or in combination: utility bills; (government or private) checks made

payable in their names (with or without addresses); Social Security cards; bank statements; or

employer-, military-, or school-issued identification.

This multitude of identification alternatives can create confusion for poll workers – and

for voters. The result is delays in processing voters prior to issuing them a ballot, and the

significant potential for inconsistent treatment of voters between polling stations, and even

between poll workers at a single location.

A uniform standard of reliable identification readily and freely accessible to all eligible

voters, such as Virginia’s photo ID requirement, eliminates this confusion by imposing a single

standard familiar to poll workers and voters alike. The result of imposing a uniform Photo ID

requirement is more expeditious, consistent and fair processing of all eligible voters, which

furthers the aim of instilling public confidence, and encouraging the widest possible

participation. Don Palmer will testify to this point.

C. Virginia’s voter identification requirements are not the result of past discrimination.

Justice Scalia dissented in United States v. Virginia (1996), a ruling ending the Virginia

Military Institute’s men-only admissions policy:

Much of the Court’s opinion is devoted to deprecating the closed-mindedness of our forebears with regard to women’s education, and even with regard to the treatment of women in areas that have nothing to do with education. Closedminded they were—as every age is, including our own, with regard to matters it cannot guess, because it simply does not consider them debatable. The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution.

So to counterbalance the Court’s criticism of our ancestors, let me say a word in their praise: They left us free to change. This Court has already addressed the relevance (or lack of relevance) of Virginia’s deplorable history of racism during


69

reconstruction and the Jim Crow era. See Order Dkt. 165. But that history has norelevance to the voter ID law, a different political party and a legislative body generations removed from reconstruction.

III. Virginia’s voter ID law does not violate Section 2 of the Voting Rights Act.

Section 2 of the Voting Rights Act, 52 U.S.C. 10301 provides:

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 10303(f)(2) of this title, as provided in subsection (b).

(b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.

Section 2 contemplates two situations, vote-denial and vote-dilution. The common

Section 2 case is a vote-dilution case such as legislative or congressional reapportionment cases.

A vote-dilution claim asserts that, despite equal access to the ballot, a State’s malapportionment

of legislative districts unlawfully diluted the weight of minority votes and thus denied minorities

opportunity to elect their preferred representative.

In a vote-denial case, Section 2 prohibits states from imposing a voting “standard,

practice or procedure” that results in the “denial or abridgement” of the right “to vote on account

of race or color.” Importantly, subsection (b) requires be established “based on the totality of

circumstances.” To establish a Section 2 violation the plaintiff must show that the political


70

process is “not equally open to participation by members of a class of citizens” on account of

race or color.

The plain language of Section 2 prohibits only voting practices imposed by the State that

“result in”, (in other words “cause”) minority voters to have “less opportunity” to participate

than non-minority voters because the system is not “equally open” to minorities. Section 2 does

not require states to maximize minority voting by eliminating the usual burdens of voting to

overcome underlying socio-economic disparities that may exist among racial groups. Nor does

Section 2 invalidate a voting practice because the practice “has a disparate effect on minorities,”

Frank, 768 F.3d at 753. As such, Section 2 is “an equal-treatment requirement,” not “an equal-

outcome command.” Id. at 754. This point is explicitly confirmed by the text which provides,

“nothing in this section establishes a right to have members of a protected class elected in

numbers equal to their proportion in the population.” 52 U.S.C. 10301.

A. Plaintiffs premise their Section 2 challenge on a theory contrary to the text and intent of Section 2.

Plaintiffs’ premise their Voting Rights Act claim on a radical theory. Plaintiffs do not

challenge any “qualification” to vote in Virginia Virginia’s constitution establishes only three

qualifications to vote – being eighteen years old, an American citizen and a resident of Virginia.

Rather, plaintiffs Section 2 challenge is to Virginia’s race-neutral regulation of the time, place

and manner in which Virginia conducts an election – how Virginia conducts the process of

voting and, specifically, how Virginia confirms persons seeking to cast a ballot are, in fact, the

individual who is registered to vote.


71

Plaintiffs have not, and cannot establish that Virginia’s voter identification requirements

reduce minority turnout.172 But even if there was some showing of lower minority participation,

Section 2 would only prohibit the voter ID law if it was proven the ID requirement (and not some

other factor) “results” in minorities having “less opportunity” to vote because the political

process is not “equally open” to them. Correspondingly, if Virginia’s voting system (considered

in its totality) is “equally open” and provides “equal opportunity” any supposed reduced minority

participation cannot be the “result of” or “caused by” the voting practice. If there is a difference

in participation between minorities and non-minorities it is attributable to different levels of

interest in the election or underlying socio-economic factors.

Justice Brennan explained this point in Thornburg v. Gingles, 478 U.S. 30, 50 n.17

(1986), a voting practice has a prohibited “result” only if the practice itself, rather than

underlying socio-economic factors, ‘proximately cause[d]” the disproportionate exclusion of

minority voters. See also Irby v. Virginia State Bd. Of Elections, 889 F.2d 1352, 1358 (4th Cir.

1989) (rejecting a Section 2 challenge because there was “no proof that the [challenged] process

caused the disparity.”) Like Irby, plaintiffs offer no proof that Virginia’s voter ID requirement

has caused any disparity in the opportunity for minorities to participate in Virginia elections.

Further, plaintiffs have not identified a single person who is prevented from voting by

operation of Virginia’s voter identification law. This is hardly surprising, given the ubiquity of

photo identification in modern society the wide variety of acceptable photo identification, those

172 Plaintiff’s expert Minnite co-authored one of the leading studies with Robert S. Erikson, Modeling Problems in the Voter Identification – Voter Turnout Debate, Election Law Journal, Vol 8, No. 2 (2009). The study concluded, “It should be evident that our sympathies lie with the plaintiffs in the voter ID cases. Yet we see the existing science regarding vote suppression as incomplete and inconclusive. This is not because of any reason to doubt the suppression effect but rather because the data that have been analyzed to date do not allow a conclusive test.” Id at 98.


72

provisions of Virginia’s law which allow voters to exercise the franchise even without a photo

identification by casting an absentee ballot, and the provision that allow a person to cast a

provisional ballot on Election Day and then obtaining a free photo identification which the voter

can later send to the registrar and the ballot will be counted.

Following the 2006 mid-term elections in Indiana, an election conducted under the voter

ID law upheld in Crawford, Dan Seligman of the non-partisan Electionline.org organization

testified to the Federal Election Assistance Commission.

On voter I.D., new rules and pre-election court challenges to new voter I.D. laws in Indiana, Ohio, and Georgia did not cause significant problems in the polls. Indiana's new photo-only voter I.D. law did not hinder those voters that showed up at the polls, at least according to Indiana's Secretary of State, and an independent organization that ran hotlines for voters reported that only a small percentage, under seven percent, of election day complaints focused on voter I.D. issues…. Scattered issues aside and not straying into the debate about whether voter I.D. secures the vote or blocks access to it, voter I.D. requirements did not seem to pose a stumbling block on election day to those voters who came to polling places.173

Plaintiffs must also establish that the challenged practice results in less minority

opportunity compared to an objective benchmark - not compared to what would result from

plaintiffs’ preferred minority-maximizing alternative. Holder v. Hall, 512 U.S. 874, 881 (1994)

(opinion of Kennedy, J.).

This rule follows from Section 2’s text that prohibits practices that “deny or abridge” the

right to vote. Since time, place, and manner regulations (unlike a literacy tests or poll tax) do not

“deny” anyone the vote. The concept of “abridgement” in turn “necessarily entails a

comparison” with “what the right to vote ought to be.” Reno v. Bossier Parish School Bd., 528

U.S. 320, 334 (2000) (Bossier II). Since Section 2 does not require a system that maximizes

173 Testimony of Dan Seligman, Editor, Electionline.org., before the U.S. Election Assistance Commission (Dec. 7, 2006).


73

minority opportunities, but only one that provides an “equal opportunity,” the benchmark is not

an alternative that enhances minority voter convenience compared to the challenged practice.

Plaintiffs claim that Section 2 requires this Court to invalidate Virginia’s photo ID law, but they

offer no benchmark for what identification requirements, if any, should be in place. Plaintiffs are

silent as to why a non-photo identification requirement constitutes an objective benchmark as

opposed to a requirement based on voter registration cards, comparison of signatures, or

presentation of multiple documents.

Section 2 does not impose an “anti-retrogression” standard like Section 5, which

compares the state’s current voting laws to the prior status quo. It is settled law that

“[r]etrogression is not the inquiry [under] § 2.” Holder, 512 U.S. at 884 (opinion of Kennedy,

J.). Rather, the measure of “abridgement” under Section 2 must be a nationwide, “objective”

benchmark. Since Plaintiffs do not (and cannot) point to any “benchmark” of voting practices

that are objectively superior to the challenged practices, but instead propose alternatives that are

purportedly superior only because they enhance minority participation, they have not alleged a

violation of Section 2.

Finally, Plaintiffs’ reading of Section 2 would render it unconstitutional. Requiring states

not just to refrain from adopting laws that cause minority voters to have less opportunity, but to

adopt laws to maximize or achieve proportionate minority participation, would exceed

Congress’s power to enforce the Fifteenth Amendment’s prohibition against intentional

discrimination. Moreover, requiring states to base their laws on what most benefits minority

voters, rather than on race-neutral considerations, or to act in a racially-conscious way to remedy

societal discrimination, would violate the Equal Protection Clause.


74

B. Plaintiffs fail to show that Virginia’s voter ID law is a proximate cause of minorities having less opportunity to participate.

To violate Section 2, a voting practice must proximately cause harm to minority voters.

That is so because Section 2 liability is established only if a voting practice “imposed by [the]

State” “results in a denial or abridgement of the right of any citizen . . . to vote on account of race

or color.” 52 U.S.C. § 10301(a); see Memorandum Opinion at *9 (“the appropriate inquiry is

where as a result of the challenged practice or structure plaintiffs do not have an equal

opportunity”) (internal quotation marks omitted). Thus, if the alleged “abridgement” “results”

from something other than the state-imposed practice, such as underlying socio-economic

disparities or disparate levels of interest, Section 2 does not reach it. Saying that a practice

“result[s] in” a particular effect is the same thing as saying that it causes that effect.

In Gingles, Justice Brennan emphasized that Section 2 “only protect[s] racial minority

vote[r]s” from denials or abridgements that are “proximately caused by” the challenged voting

practice. 478 U.S. at 50, n.17 (citation and quotation marks omitted). Applying this basic rule in

the vote-dilution context, Gingles held that plaintiffs challenging at-large, multi-member districts

must show, as a “necessary precondition[n]” to establishing a potential Section 2 violation, that it

was the state-imposed voting practice – i.e., the multi-member electoral system—that caused the

disparate exclusion of minority candidates from the relevant offices. Id. at 50.

Section 2 plaintiffs must show that challenged vote dilution is not attributable to a general

socio-economic condition – i.e., the absence of a minority community “sufficiently large and

geographically compact to constitute a majority in a single-member district.” Id. Thus, if

Plaintiffs cannot establish the existence of a naturally compact, predominantly minority

community that would allow them to elect a candidate in a single-member district, then the state-


75

imposed “multi-member form of the district cannot be responsible for minority voters’ inability

to elect its candidates.” Id. (emphasis in original).

Gingles holds that a threshold requirement for a Section 2 claim is establishing that the

state-imposed voting practice—in that case, the “multi-member form” of electing candidates – is

“responsible for” the alleged deprivation. If, alternatively, a socio-economic condition, such as

the racial composition of the relevant neighborhoods, is “responsible for” the unequal ability to

elect, there is no cognizable Section 2 claim (even though government policies have obviously

influenced the degree of residential integration).

As Gingles emphasized, if the voting procedure “cannot be blamed” for the alleged

dilution, there is no cognizable Section 2 problem because the “results” standard does “not

assure racial minorities proportional representation” but only protection against “diminution

proximately caused by the districting plan.” Id. at 50 n.17 (emphasis in original). In the vote-

denial context, therefore, a Section 2 plaintiff must show that the alleged deprivation is the result

of a state-imposed voting practice, rather than some socio-economic factor such as, for example,

fewer minority voters having cars to get to the polls.

Lower courts follow this proximate-cause requirement. For example, the Fourth Circuit

rejected a Section 2 challenge against Virginia’s decision to choose school-board members by

appointment rather than election because, although there was a “significant disparity . . . between

the percentage of blacks in the population and the racial composition of the school boards,” there

was “no proof that the appointive process caused the disparity.” Irby, 889 F.2d at 1358. The

disparity was not caused by anything the State had done because black people were “not seeking

school board seats in numbers consistent with their percentage of the population.” Id. The Ninth

Circuit recently explained that “a § 2 challenge ‘based purely on a showing of some relevant


76

statistical disparity between minorities and whites,’ without any evidence that the challenged

voting qualification causes that disparity, will be rejected.” Gonzalez v. Arizona, 677 F.3d 383,

405 (9th Cir. 2012) (en banc) (emphasis added) (citation and internal quotation marks omitted),

aff'd sub nom. Arizona v. Inter Tribal Council of Arizona, Inc., 133 S. Ct. 2247 (2013).

Because the focus of the Section 2 inquiry under the text of the statute and Irby is the

effects of the state-imposed voting practice, not other governmental discrimination, it follows

that it is even more insufficient to rely on the effects of private or societal discrimination that has

led to socioeconomic disparities. As the Seventh Circuit explained in Frank, courts must

“distinguish discrimination by the defendants from other persons’ discrimination.” 768 F.3d at

755. That is because “units of government are responsible for their own discrimination but not

for rectifying the effects of other persons’ discrimination.” Id. at 753 (citing Milliken v. Bradley,

418 U.S. 717 (1974)). “Societal discrimination, without more, is too amorphous a basis” for

crafting remedies. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 276 (1986) (plurality opinion).

Indeed, even in cases where a court looked (improperly) beyond the effect of the state-

imposed voting practice to those effects “caused by or linked to social and historical conditions,”

courts have focused their inquiry on those “social and historical conditions” related to

government-based discrimination. In League of Women Voters of North Carolina v. North

Carolina, for example, the Court listed only one relevant “social and historical condition”:

“overtly discriminatory practices” in North Carolina’s “history of voting-related discrimination.”

769 F.3d at 245. The Court then discussed “socioeconomic indicators,” i.e., statistics regarding

socioeconomic disparities, that were evidence of the “effects of past discrimination.” Id. The

opinion thus provides no indication that private or societal discrimination is itself sufficient as

“past discrimination” under Section 2.


77

In this case, plaintiffs have not shown that any practice adopted by Virginia proximately

causes the exclusion of minority voters. They have not demonstrated that Virginia has “imposed

or applied” a barrier – such as a literacy test or a poll tax – that “results in” the disproportionate

denial of the right to vote to members of minority races. Quite the contrary, Virginia allows all

adult citizens to vote.

More recently, in League of Women Voters of North Carolina v. North Carolina, 769

F.3d 224, 245 (4th Cir. 2014) – an appeal from the denial of a preliminary injunction against new

voting laws in North Carolina – the Fourth Circuit changed course. It concluded, without

mentioning Irby, that a challenger may satisfy Section 2’s requirement of causation by showing

that the discriminatory effect in question is “caused by or linked to social and historical

conditions that have or currently produce discrimination against members of the protected class.”

League of Women Voters does not bind this Court. As the en banc Fourth Circuit has held, “one

panel cannot overrule a decision issued by another panel.” McMellon v. United States, 387 F.3d

329, 332 (4th Cir. 2004) (en banc). “When published panel opinions are in direct conflict on a

given issue, the earliest opinion controls.” Id. League of Women Voters’ holding that a Section

2 challenger need only show a “lin[k]” between the racially disparate effect and “social and

historical conditions,” 769 F.3d at 245 (emphasis added), contradicts Irby’s earlier holding that a

Section 2 challenger must show a “causal link” between the racially disparate effect and the

challenged practice itself, 889 F.2d at 1359. Because Irby was “the first case to decide the

issue,” it – not League of Women Voters – “is the one that must be followed, unless and until it

is overruled by [the Fourth Circuit] sitting en banc or by the Supreme Court.” McMellon, 387

F.3d at 334. That is all-the-more true because League of Women Voters concerned only a

preliminary injunction, and “the findings of fact and conclusions of law made by a court granting


78

a preliminary injunction are not [even] binding at trial on the merits” in that case. University of

Texas v. Camenisch, 451 U.S. 390, 395 (1981).174

As it turns out, however, the challengers in this case would lose even under the

improperly relaxed standards adopted in League of Women Voters. That case, to repeat, requires

a showing that the disparate effect in question is “caused by or linked to social and historical

conditions that have or currently produce discrimination against members of the protected class.”

769 F.3d at 245; see Memorandum Opinion at *9. Relevant “conditions” may include, for

example, “the history of voting-related discrimination in the pertinent State.” Id.

We acknowledge and condemn the historical reality that past generations of some whites

in Virginia disfranchised black citizens in blatant violation of the Fifteenth Amendment. Even

so, plaintiffs have not shown that any disproportionate effect of Virginia’s photo-identification

requirement is “caused by or linked to” this history, or for that matter to any other discriminatory

past or present condition. Rather, any disproportionate effect is caused by socioeconomic factors

that have at best a tenuous connection to historical discrimination. And, as discussed above,

174 In addition, the preliminary injunction in League of Women Voters was stayed by the Supreme Court. See North Carolina v. League of Women Voters of North Carolina, 135 S. Ct. 6 (2014). That stay is doubly relevant. First, because the grant of a stay reflects a judgment that a majority of the Justices likely “would . . . set the order aside,” I.N.S. v. Legalization Assistance Project of Los Angeles County Federation of Labor, 510 U.S. 1301, 1303 (1993) (O’Connor, J., in chambers), the stay here indicates that a majority of the Supreme Court disagrees with the Fourth Circuit’s interpretation and application of Section 2. Second, the grant of a stay drainedthe League of Women Voters preliminary injunction of virtually all practical effect, because it rendered the preliminary injunction inapplicable to the 2014 midterm elections. To be sure, the stay expired and the preliminary injunction went back into effect after those elections, when the Supreme Court denied an interlocutory certiorari petition. See 135 S. Ct. 1735 (2015) (denying certiorari); 135 S. Ct. at 6 (providing that stay would expire upon denial of certiorari). By that time, however, even the challengers in League of Women Voters agreed that the preliminary injunction had become functionally moot. As they put it: “By its very nature, the preliminary injunction . . . will expire once [the district court] conducts a trial on the merits and enters a final judgment. That will occur in short order. . . . There are no elections in North Carolina currently scheduled to take place before that time.” Brief in Opposition, North Carolina v. League of Women Voters, No. 14-780, at 11 (2015).


79

even if plaintiffs could show that socioeconomic inequalities were linked to discrimination by

private parties, that would not be enough, for Section 2 is concerned only with government-based

discrimination: “[U]nits of government are responsible for their own discrimination but not for

rectifying the effects of other persons’ discrimination. . . . Section 2(a) forbids discrimination by

‘race or color’ but does not require states to overcome societal effects of private discrimination

that affect the income or wealth of potential voters.” Frank, 768 F.3d at 753 (emphasis added).

Virginia’s law “does not draw any line by race,” and it “extends to every citizen an equal

opportunity to get a photo ID.” Id. Because plaintiffs have not shown that any disproportionate

effect of the photo-identification requirement is linked to state-sponsored discrimination, their

Section 2 claims must fail.

C. Plaintiffs’ Section 2 theory violates the Constitution.

Justice Kennedy has repeatedly emphasized the Supreme Court has never confronted the

difficult question of whether Section 2’s “results” test complies with the Constitution. Justice

Kennedy’s pointed reminders underscore that Section 2’s results test teeters at the edge of

constitutionality. Interpreting Section 2 to prohibit Virginia’s race-neutral voting laws and to

require Virginia to adopt new laws for the racial purpose of enhancing minority voting, would

push Section 2 well beyond the limits of the Constitution.175

175 See, e.g., Chisom, 501 U.S. at 418 (Kennedy, J., dissenting) (“I write to add only that the issue before the Court is one of statutory construction, not constitutional validity. Nothing in today’s decision addresses the question whether § 2 . . . is consistent with the requirements of the United States Constitution.”); Johnson v. DeGrandy, 512 U.S. at 1028–29 (1994) (Kennedy, J., concurring in the judgment) (“It is important to emphasize that [the Supreme Court’s § 2] precedents . . . , like today’s decision, only construe the statute, and do not purport to assess its constitutional implications.”). Cf. Georgia v. Ashcroft, 539 U.S. 461, 491 (2003) (Kennedy, J., concurring) (it would be a “fundamental flaw” to require “consideration[] of race” in order to “compl[y] with a statutory directive” under the Voting Rights Act); Miller v. Johnson, 515 U.S. 900, 914 (1995) (explaining that “race-based decisionmaking” is unconstitutional).


80

If Plaintiffs’ novel interpretation of Section 2 is accepted, the statute would exceed

Congress’s power to enforce the Fifteenth Amendment. The Fifteenth Amendment prohibits

only “purposeful discrimination,” and does not prohibit laws simply because they “resul[t] in a

racially disproportionate impact.” City of Mobile, 446 U.S. at 63, 70 (quoting Arlington Heights

v. Metrop. Housing Dev. Corp., 429 U.S. 252, 265 (1977)); cf. Washington v. Davis, 426 U.S.

229 (1976) (Fourteenth Amendment). Congress has power to “enforce” that provision “by

appropriate legislation,” which allows Congress to “remedy or prevent” instances of intentional

discrimination, so long as there is “a congruence and proportionality between the injury to be

prevented or remedied and the means adopted to that end.” City of Boerne v. Flores, 521 U.S.

507, 519–20 (1997). The enforcement power does not, however, allow Congress to “alte[r] the

meaning” of the Fifteenth Amendment’s protections. Id. at 519.

Accordingly, to fall within the enforcement power, Section 2 must be a “congruent and

proportional” effort to prevent purposeful race discrimination. This does not mean that

congressional enactments are strictly limited to banning only “purposeful discrimination.” They

may bar actions with discriminatory effects but only to eliminate intentional discrimination.

Properly interpreted, the Section 2 “results” test is appropriate enforcement legislation.

As established above, the test prohibits only practices that depart from an “objective benchmark”

in a manner that proximately causes minorities to have “less opportunity” to vote than non-

minorities. Needless to say, if a State departs from an objective benchmark practice and adopts a

practice that causes minorities to have less voting opportunity, such departure can be banned to

prohibit intentional discrimination. After all, such harmful departures from the norm are “actions

. . . from which one can infer, if [they] remain unexplained, that it is more likely than not that

such actions were [purposefully] discriminatory.” Furnco Constr. Corp. v. Waters, 438 U.S.


81

567, 576 (1978) (addressing standard for establishing intentional discrimination). This is

particularly true if the practice has a racist history, as does a poll tax or a literacy test. By

ensuring that Section 2 is thus “limited to those cases in which constitutional violations [are]

most likely,” the Section 2 “results” test stays within the bounds of Congress’s enforcement

power. City of Boerne, 521 U.S. at 533.

For this reason, in the vote-dilution context, the Supreme Court has been careful to

interpret and implement Section 2’s “results” test in a way that prohibits districting efforts only

where there is a strong inference that the state’s line-drawing efforts were motivated by a

discriminatory purpose. Specifically, in order to establish even a prima facie violation of Section

2 vote dilution, plaintiffs must show circumstances from which it can be readily inferred that the

failure to create an “electable” minority district reflects a discriminatory purpose. As noted, the

very first Gingles “pre-condition” requires plaintiffs to establish that minority voters could

naturally constitute a “geographically compact” majority in a district adhering to “traditional

districting principles, such as maintaining communities of interest and traditional boundaries.”

Abrams v. Jognaon, 521 U.S. 74, 92 (1997); LULAC, 548 U.S. at 433. Prohibiting departures

from traditional districting principles in a way that harms minorities can thus be justified as an

effort to enforce the constitutional ban on purposeful discrimination. Conversely, the Supreme

Court’s interpretation of Section 2 does not require States to engage in preferential treatment by

deviating from traditional districting principles in order to create majority-minority districts. The

same holds true in the vote-denial context: Section 2 cannot be interpreted to require departure

from ordinary race-neutral election regulations in order to enhance minority voting participation.

In addition to exceeding the enforcement power, interpreting Section 2 to require states to

boost minority voting participation would affirmatively violate the Constitution’s equal-


82

treatment guarantee. The Supreme Court has expressly held that abandoning “traditional

districting principles” for the purpose of enhancing minority voting strength violates the

Constitution. See Shaw v. Hunt, 517 U.S. 899, 919 (1996) (state may not subordinate neutral

principles to create a majority-minority district). Section 2 thus cannot require States to abandon

traditional electoral practices such as requiring voter identification for the purpose of maximizing

minority voter participation. In short, “race” cannot be the “predominant factor” in electoral

decisions. Miller, 515 U.S. at 916. Yet requiring States to adjust their race-neutral laws to

enhance minority participation rates would require exactly that – the “sordid business” of

“divvying us up by race” through deliberate race-based decision-making. LULAC, 548 U.S. at

511 (opinion of Roberts, C.J.). This is especially true because, under plaintiffs’ interpretation,

any failure to enhance minority voting opportunity constitutes a discriminatory “result,” and

Section 2’s text flatly prohibits all such “results,” regardless of how strong or compelling the

state’s justification for the practice. Cf. Ricci v. DeStefano, 557 U.S. 557, 595 (2009) (Scalia, J.,

concurring).

Moreover, interpreting Section 2 to require states to act based on societal as opposed to

government-based discrimination also would contravene the Equal Protection Clause. The Equal

Protection Clause requires that race-based government action be justified by “some showing of

prior discrimination by the governmental unit involved.” Wygant v. Jackson Bd. of Educ., 476

U.S. 267, 274 (1986) (plurality opinion) (emphasis added); see City of Richmond v. J.A. Croson

Co., 488 U.S. 469, 491-92 (1989). “Societal discrimination, without more, is too amorphous a

basis for imposing a racially classified remedy.” Wygant, 476 U.S. at 276 (plurality opinion). In

other words, “remedying past societal discrimination does not justify race-conscious government

action.” Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 731-32 (2007).


83

Requiring States to adjust their voting laws because of private discrimination – discrimination

that for the government involved is “not traceable to its own actions,” Wygant, 476 U.S. at 288

(O’Connor, J., concurring in part and concurring in judgment) – would require just that

forbidden course.

Because Plaintiffs’ interpretation raises “serious constitutional question[s]” concerning

both Congress’s enforcement powers and the Fourteenth Amendment’s equal-treatment

guarantee, it must be rejected if it is “fairly possible” to interpret Section 2 as outlined above.

Crowell v. Benson, 285 U.S. 22, 62 (1932). This is particularly true because Plaintiffs’

interpretation rearranges “the usual constitutional balance of federal and state powers,” and so

must be rejected unless Congress’s intent to achieve this result has been made “unmistakably

clear in the language of the statute.” Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (citation

omitted). Of course, the Constitution reserves to the States the power to fix and enforce voting

qualifications and procedures. See Inter Tribal Council of Arizona, 133 S. Ct. at 2259. If

Section 2 truly did authorize the federal judiciary to override state election laws as extensively as

plaintiffs claim, Congress would have needed to say so clearly.

In sum, plaintiffs’ interpretation of Section 2 contradicts its text and history, overlooks

the requirement of proximate causation, ignores the need to identify an objective benchmark

against which to measure the challenged practice, clashes with binding Supreme Court

precedent, and violates the Constitution. That interpretation should be rejected, and Virginia’s

reasonable, race-neutral voter requirements should be upheld.

CONCLUSION

Virginia’s requirement that a person provide one of the requisite forms of identification

before voting, when that identification is free and reasonably accessible to every eligible Virginia

voter does not violate the Equal Protection Clause, the First Amendment, nor Section 2 of the


84

Voting Rights Act. Virginia’s race-neutral election regulation was adopted for the legitimate

purposes of preventing vote fraud and increasing public confidence in the election process.

Virginia’s photo identification law is consistent with sound election practice recommended by

the Carter-Baker Commission and is less of a burden than the voter identification law the

Supreme Court upheld in Crawford and the Seventh Circuit upheld in Frank.

Respectfully submitted,

ARENT FOX, LLP

By: /s/ Mark F. (Thor) Hearne, IIMark F. (Thor) Hearne, II(admitted pro hac vice)112 S. Hanley Road, Suite 200Clayton, MO 63105Tel: 314.296.4000Facsimile: 202.857.6395Email: [email protected]

Dana J. Finberg (VSB # 34977)55 Second Street, 21st FloorSan Francisco, CA 94105Telephone: 415.757.5500Facsimile: 415.757.5501Email: [email protected]

Attorneys for Defendants


85

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was served via the Court’s CM/ECF system on February 17, 2016, to the following:

Joshua L. Kaul Marc E. EliasPerkins Coie LLP Bruce V. Spiva1 East Main Street, Suite 201 Elisabeth C. FrostMadison, WI 53703 Aria C. Branch

Perkins Coie LLP 700 13th Street, NW, Suite 600Washington, DC 20005-3690

/s/ Dana J. Finberg


IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT ...

Documents

Transcript of IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT ...