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Lee v. Virginia State Board of Elections

United States District Court, E.D. Virginia, Richmond Division

May 19, 2016

BARBARA H. LEE, et al, Plaintiffs,
v.
VIRGINIA STATE BOARD OF ELECTIONS, et al Defendants.

          MEMORANDUM OPINION

          Henry E. Hudson United States District Judge

         This is an action challenging, on a number of fronts, the constitutionality of Virginia Code § 24.2-643(B), commonly referred to as the Virginia voter ID law or Senate Bill 1256 ("SB 1256")- In effect, this statutory provision requires voters in the Commonwealth of Virginia to present a form of statutorily-approved identification in order to vote. The approved forms of identification include a valid Virginia driver's license, U.S. passport, or other photo identification issued by the Commonwealth of Virginia, one of its political subdivisions, or the United States; a valid student identification card containing a photograph of the voter and issued by any institution of higher education located in the Commonwealth; or any valid employee identification card containing a photograph of the voter and issued by an employer of the voter in the ordinary course of the employer's business. Va. Code § 24.2-643(B);[1] see also Pls.' Trial Ex. 151 - Voter Identification Chart.

         Voters who are unable to produce valid identification are permitted to cast a provisional ballot which must be cured by the Friday succeeding election day. When voters are provided with a provisional ballot for lack of proper identification, it is noted by the election official in the provisional ballot log. The notation specifically includes that no identification is the reason the person is casting a provisional ballot. The voter is then advised of the procedure to cure, enabling her ballot to be counted. To cure a provisional ballot, voters must present valid identification to the local registrar either in person or by fax or email. (Trial Tr. 945:14-46:15, Feb. 25, 2016 (Test, of Myron McClees).)

         Under the regulations implementing SB 1256, voters without valid identification can obtain free photographic voter identification at a local registrar's office. The application process requires the voter to identify herself by date of birth and social security number. After confirming that the applicant is a registered voter, her picture is taken and her signature is recorded on a digital pad. A photograph-bearing identification card is then sent to the voter's address of record free of charge. This form of voter identification can only be issued at registrar's offices because it requires access to a secure computer system containing the voter's personal identification. Consequently, such identification cannot be issued at polling stations. (Id. at 1449:9-50:7, 1465:16-66:11, Feb. 26, 2016 (Test, of Edgardo Cortes).)

         Plaintiffs urge the Court to issue a permanent injunction enjoining the Commonwealth of Virginia and its agents from enforcing the voter ID law. In addition, they ask the Court to find that the photo ID requirement for voting adversely impacts minority voters in violation of Section 2 of the Voting Rights Act, as well as the First, Fourteenth and Fifteenth Amendments of the Constitution of the United States. Plaintiffs also ask this Court to find that the voter ID law intentionally discriminates against young voters in contravention of the Twenty-Sixth Amendment.

         Following resolution of pretrial motions addressing Plaintiffs' standing under Federal Rule of Civil Procedure 12(b)(1) and the adequacy of the underlying allegations under Rule 12(b)(6), this Court conducted a seven day trial without a jury. At the close of the evidence, in lieu of oral argument, the Court afforded each party an opportunity to file post-trial memoranda supporting their respective positions with specific references to pertinent portions of the voluminous documents placed into evidence in this case.[2] This opinion followed.

         The core contention in this case is that the voter identification law was enacted by the Virginia General Assembly with the intention of gaining partisan advantage by placing an undue burden on certain classes of opposition voters. Count I alleges a violation of Section 2 of the Voting Rights Act. In support, Plaintiffs contend that the voter ID law has an adverse disparate impact on African American and Latino voters. Plaintiffs maintain that the law imposes a discriminatory burden on a protected class, fostered in part by social and historical conditions in the Commonwealth of Virginia. In Count II, Plaintiffs maintain that the Virginia voter ID law violates the First Amendment and the Equal Protection Clause of the Fourteenth Amendment in that it imposes an undue burden on the right to vote and results in disparate treatment of protected classes without a rational basis. Count III, styled "Partisan Fencing, " alleges that the Virginia voter ID law subjects a group of voters to disfavored treatment by reason of their political views. Lastly, Counts IV and V allege intentional discrimination by race and age, respectively. Plaintiffs contend that the Virginia General Assembly enacted the Virginia voter ID law with the specific intent to suppress African American, Latino, and young voters.

         In part, Plaintiffs' evidence consisted of testimony from a dozen Virginia voters who alleged that they were burdened by the Virginia voter ID law in casting their ballots during the 2014 and 2015 election cycles. These individuals cited a variety of impediments that allegedly made the voting process unduly cumbersome. But in most cases, complying with the law proved to be a surmountable hurdle. Plaintiffs offered a variety of expert witnesses describing the history of racial discrimination in Virginia politics and a demographic breakdown and analysis of segments of the Virginia population who may not possess valid identification. Virginia election officials and members of the General Assembly provided some legislative history on the enactment on the Virginia voter ID law and its implementation by the Virginia State Board of Elections ("SBOE").

         The centerpiece of Plaintiffs' evidence was the expert testimony of several professors with extensive experience testifying in election law related cases. One expert concluded that in person voter identification fraud was rare. Another, after providing an overview of election laws adopted by approximately thirty other states, concluded that there was no rational basis for the adoption of the Virginia voter ID law, and given the history of discrimination in Virginia, must have been adopted for the purpose of suppressing minority votes.

         The Defendants countered with a number of expert witnesses who pointed out that the statistical analysis employed by Plaintiffs arguably omitted a large segment of Virginia voters who likely would have valid identification. Defendants' experts also testified that based on their investigation and analysis, the implementation of the Virginia voter ID law resulted in very few individuals being unable to cast a vote during the 2014 election cycle. They described the burden imposed by the Virginia voter ID law as having a fairly even effect on individuals of all ages, races, and nationalities. Furthermore, under the statutory scheme adopted under SB 1256, no voter was actually disenfranchised; each had a means of casting a ballot if he or she chose to exercise alternative voting options.

         Lastly, the Defendants' experts pointed out that while the number of actual convictions for voter fraud may be minimal, that statistic may not accurately reflect the number of such cases reported to law enforcement authorities. Irrespective of statistics, one defense expert testified that in her opinion, several legitimate reasons existed warranting passage of the voter ID law, including that a large segment of the Virginia population had a perception that in person voter fraud could potentially occur and supported the legislation challenged in this case.

         To provide some insight into the deliberative process underlying the enactment and the implantation of SB 1256, the Defendants, a former Secretary of the SBOE, and a number of SBOE and Virginia Department of Elections ("VDOE") employees, along with other local election officials, outlined the extensive public information campaign launched in 2014 to educate voters on the necessity for proper identification when voting. Edgardo Cortes ("Cortes"), the current Commissioner of the VDOE, who opposed SB 1256, testified that he and his staff attempted to implement the law in the least burdensome way possible. (Trial Tr. 1500:11-18, Feb. 26, 2016.) While this outreach was not flawless, it included a large swath of voters.

         The evidence in this case clearly demonstrated, as both parties will concede, that Virginia has an unfortunate history of racial discrimination and statutory artifice to hinder black voting. The evidence is equally clear that prior to the adoption of the Voting Rights Act in 1965 ("the Act"), legislation was enacted by the Virginia General Assembly that materially affected the rights of African Americans to vote. The Voting Rights Act was intended as a safeguard against policies and practices undermining an equal opportunity by black and white voters alike to elect their preferred representatives. Thornburg v. Gingles, 478 U.S. 30, 47 (1986). While the Act undoubtedly ushered in significant reform measures, underlying issues continued to spark partisan debate.

         The evidence also revealed that the Virginia voter ID law has created a layer of inconvenience for some voters. But the question squarely presented in this case is whether Virginia Code § 24.2-643(B) is unconstitutional either in its adoption, implementation, or enforcement. Does it, by design or otherwise, adversely affect the opportunity of minorities to vote or is the burden evenly spread? Is a legislative body's authority to adopt protective legislation dependent on objective criteria or their delegated judgment?

         I. A Second Look at Standing

         Before turning to the merits of Plaintiffs' claims, the Defendants urge the Court to revisit its earlier finding that the Democratic Party of Virginia ("DPVA") has Article III standing. In a Memorandum Opinion issued December 18, 2015, this Court concluded, based upon a facial review of the Amended Complaint, that "[i]n the immediate case, the DPVA claims direct injury to its raison d'etre-electing candidates who support the Democratic platform, as opposed to individualized interests of its members." (Mem. Op. 8, ECFNo. 110).

         The testimony at trial appears to support this conclusion. While it has no formal membership roster, the DPVA is an umbrella organization encompassing committees of supporters in every city and county in Virginia. Rebecca Slutzky ("Slutzky"), Executive Director of the DPVA, testified that under the party plan, it includes anyone who leans Democratic, votes Democratic, or supports the Party. As the United States Supreme Court explained in Worth v. Seldin, 422 U.S. 490 (1975), associations can allege standing based upon two distinct theories. First, the association "may have standing in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy." Warth, 422 U.S. at 511. Second, the association may have standing as the representative of its members who have been harmed. Id.; see also Hunt v. Wash. State Apple Advert. Comm 'n, 432 U.S. 333, 342-3 (1977).

         The DPVA serves as an umbrella organization overseeing local committees composed of Democratic supporters, coordinating statewide campaign strategies, and promoting voter turnout. The party expended time and resources to educate voters and party members on the requirements of SB 1256. The party obtained lists of individuals who may not possess proper identification for information targeting. It also hired a voter protection director whose responsibilities included the identification and education of voters potentially burdened by identification requirements. Slutzky also testified that the voter education program necessitated by SB 1256 detracted time and resources that would have otherwise been expended increasing voter turnout.

         Both the chair and vice chair of the Henrico County Democratic Committee described similar experiences. Both were active in voter identification education. Cheryl Zando ("Zando"), Chair of the Henrico County Democratic Committee, also chaired a task force which organized phone banks promoting free identification available at the registrar's office. Cathy Woodson ("Woodson"), Vice Chair of the Henrico County Democratic Committee, organized outreach projects at community events to familiarize voters with identification requirements and access to free forms of valid identification. Both Zando and Woodson testified that but for the need to educate voters on the requirements of SB 1256, they would have engaged in other campaign-related activity. Near identical experiences were recounted by Susan B. Kellom, Chair of the Alexandria City Democratic Committee, and Jeff Allen ("Allen"), a Democratic Party field organizer.

         Collectively viewed, the DPVA has shown sufficient injury primarily in the form of diversion of time, talent, and resources to educate their voters and implement the requirements of the Virginia voter identification law. See Crawford v. Marion Cnty. Elec. Bd., 472 F.3d 949, 951 (7th Cir. 2007) (citing Friends of the Earth, Inc. v. Laidlaw Envtl Sevrs. Inc., 528 U.S. 167, 180-84 (2000)), affirmed 553 U.S. 181 (2008)).

         In the Court's opinion, Plaintiffs have satisfied their burden of demonstrating a realistic danger of sustaining direct injury as a result of SB 1256, if in fact it suppresses minority voters likely to support Democratic candidates. Fla. State Conf of NAACP v. Browning, 522 F.3d 1153, 1161 (11th Cir. 2008). Both individual Plaintiffs in this case are registered voters in Virginia who affiliate themselves with the Democratic Party. They express an intention to vote for Democratic candidates in the future and have been involved in voter registration, education, and voter turnout projects. Both Barbara H. Lee ("Lee") and Gonzalo Aida Brescia ("Aida") are members of their local Democratic committee and intend to participate in get-out-the-vote activities during the next election cycle. Aida also testified that as a result of the enactment of SB 1256, he had the additional burden of preparing educational materials on valid forms of voter identification, including emails, graphics, and Facebook postings. These tasks consumed time that he would have otherwise devoted to issue and candidate advocacy.

         II. Overview of Legal Standards by Which Evidence is Measured

         Section 2 of the Voting Rights Act, codified at 52 U.S.C. § 10301(a), prohibits any "standard, practice, or procedure ... 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." The statute further explains that '"[a] violation of subsection (a) is established if, based on the totality of the 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' citizens of protected races 'in that [they] have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.'" League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 238 (4th Cir. 2014) (second alteration in original) (quoting 52 U.S.C. § 10301(b)).

         The central inquiry under Section 2 "is whether as a result of the challenged practice or structure plaintiffs do not have an equal opportunity to participate in the political processes and to elect candidates of their choice." Gingles, 478 U.S. at 44 (internal quotation marks and citation omitted). Proof of intentional discrimination is unnecessary to prevail on a Section 2 claim. Proof of discriminatory results is sufficient. Chisom v. Roemer, 501 U.S. 380, 404 (1991). "The essence of a [Section] 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives." Gingles, 478 U.S. at 47.

         Based on a thorough analysis of Section 2 vote-denial jurisprudence, the Court of Appeals for the Fourth Circuit in League of Women Voters of North Carolina isolated the two critical elements of proving such a claim:

First, the challenged standard, practice, or procedure must impose a discriminatory burden on members of a protected class, meaning that members of the protected class have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. Second, that burden must in part be 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 240 (internal quotation marks and citations omitted).

         The Supreme Court has continually counseled that vote-denial cases brought under Section 2 should not be viewed in isolation, but should be evaluated in light of the totality of circumstances. The court in Gingles suggested a number of potentially relevant factors. These include: (1) any history of voting-related discrimination in the pertinent state; (2) the extent to which voting is racially polarized; (3) the history of use of voting practices or procedures that tend to enhance the opportunity for discrimination against minority groups; (4) the exclusion of members of the minority group from candidate slating processes; (5) the extent to which minority group members bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process; (6) the use of even subtle racial appeals in political campaigns; (7) the extent to which the members of the minority group have been elected to public office in the jurisdiction; (8) evidence that elected officials are unresponsive to the particularized needs of members of the minority group; and (9) the extent to which the policy underlying the state's use of the practice or structure at issue is tenuous. Gingles, 478 U.S. at 44-45.

         In applying the analytical framework articulated in Gingles, "'there is no requirement that any particular number of factors be proved, or [even] that a majority of them point one way or the other.' ... Instead, courts must undertake 'a searching practical evaluation of the past and present reality, ' [with] a 'functional' view of the political process." League of Women Voters of N.C, 769 F.3d at 240-41 (alterations in original) (quoting Gingles, 478 U.S. at 45).

         Turning to the First Amendment and Equal Protection claims raised in Count II of the Amended Complaint, this Court's review is guided by the balancing framework articulated in Anderson v. Celebrezze, 460 U.S. 780 (1983), and amplified by Burdick v. Takushi, 504 U.S. 428 (1992). The Court succinctly framed the Anderson-Burdick controlling standard in Crawford v. Marion County Election Board: "a court evaluating a constitutional challenge to an election regulation [must] weigh the asserted injury to the right to vote against the precise interests put forward by the State as justifications for the burden imposed by its rule." 553 U.S. 181, 190 (2008) (quoting Burdick, 504 U.S. at 434) (internal quotation marks omitted).

         Finally, the teachings of the Supreme Court in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977), are instructive in analyzing the intentional discrimination claims in Counts IV and V. The court in Arlington Heights restated the well-established tenet that "[p]roof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause." Id. at 265. Arlington Heights identified a number of factors to be employed by reviewing courts in evaluating facially neutral laws allegedly passed with a discriminatory purpose. This evaluation requires courts to perform "a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Id. at 266. The court further stressed that the impact of the official action may provide an important starting point under discriminatory purpose analysis. Id.

         In assessing whether racial discrimination has been demonstrated to be a substantial or motivating factor behind the enactment of legislation, Arlington Heights also delineated a number of non-exhausting factors to guide the court: (1) the historical background of the decision-making process, particularly if it indicates a series of official actions taken for invidious purposes; (2) the specific sequence of events leading up to the challenged legislative action; (3) departures from normal procedural sequence; (4) substantive departures, particularly if the factors usually considered important by the decision-maker strongly favor a decision contrary to the one reached; (5) the legislative or administrative history especially where they are contemporary statements by members of the decision-making body, minutes of its meetings or reports. Id. at 267-68.

         "Once racial discrimination is shown to have been a substantial or motivating factor behind the enactment of the law, the burden shifts to the law's defenders to demonstrate that the law would have been enacted without this factor." Hunter v. Underwood, 471 U.S. 222, 228 (1985) (internal quotation marks and citation omitted).

         III. Legislative History of Virginia Voter Identification Bills

         To provide historical context for the present litigation, some explanation of the evolution of SB 1256 may serve as an enlightening preface. The stage is set with the adoption of the Help America Vote Act ("HAVA") of 2002 by the United States Congress. With the objective of protecting the integrity of the electoral process, HAVA imposed a number of requirements on the individual states. Congress required every state to create and maintain a computerized statewide list of all registered voters. 52 U.S.C. § 21083(a)(1)(A). In addition, HAVA required states to verify voter information contained on a voter registration application by using the applicant's driver's license number or the last four digits of the applicant's social security number. Id. § 21083(a)(5)(A)(i). Most pertinent to the case at hand,

HAVA also impose[d] new identification requirements for individuals registering to vote for the first time who submit their applications by mail. If the voter is casting his ballot in person, he must present local election officials with written identification, which may be either "a current and valid photo identification" or another form of documentation such as a bank statement or pay check. If the voter is voting by mail, he must include a copy of the identification with his ballot. A voter must also include a copy of the documentation with his application or provide his driver's license number or Social Security number for verification. Finally, in a provision entitled "Fail-safe voting, " HAVA authorizes the casting of provisional ballots by challenged voters.

Crawford, 553 U.S. at 193 (citations omitted).

         The photograph identification requirements established by HAVA applied only to federal elections. However, as the Court pointed out in Crawford, the safeguard measures adopted in HAVA did "indicate that Congress believes that photo identification is one effective method of establishing a voter's qualification to vote and that the integrity of elections is enhanced through improved technology. That conclusion is also supported by ... the Commission on Federal Election Reform, chaired by former President Jimmy Carter and former Secretary of State James A. Baker III." Id.

         The requirement that voters present a non-photo form of identification at the polls has been in effect since 1996 in the Commonwealth of Virginia. A registered voter without any form of identification could cast his or her ballot by simply executing an affirmation of identity. (Trial Tr. 956:20-24, Feb. 25, 2016 (Test, of Myron McClees).) In 2012, it became apparent to the SBOE that the mere signing of an affirmation of identity for first time voters in federal elections who registered by mail was inadequate to comply with HAVA standards. (Id. at 1611:15-12:4, Mar. 1, 2016 (Test, of Donald Palmer).) The differing identification procedures for state and federal elections created considerable confusion among poll workers. (Id. at 1611:18-12:11.)

         In 2012, the Virginia General Assembly rescinded the self-affirmation procedure and substituted a limited field of non-photograph bearing identification. To promote uniformity, voters in Virginia were required to produce one of the specified forms of identification in all elections, both state and federal. Va. Code § 24.2-643 (version effective until July 1, 2014). Voters could register by mail without submitting any form of identification and receive a non-photo registration card. While largely supported by Republicans, this legislation was adopted with bipartisan support. It was subsequently reviewed and precleared by the United States Department of Justice as required by the Voting Rights Act.

         In 2013, just one year after a voter identification bill had been adopted, the General Assembly passed SB 1256. While this legislation expanded the list of permissible forms of identification, it required that the identification include a photograph of the voter. The bill, introduced by Senator Mark Obenshain ("Senator Obenshain"), sparked spirited partisan debate on the floor of the Virginia General Assembly. SB 1256 was ultimately adopted with unanimous Republican support, coupled with one Democrat and one Independent supporter. (Trial Tr. 1615:8-14, Mar. 1, 2016 (Test, of Donald Palmer).) The law as enacted also provided for the issuance of a free photograph-bearing voter identification card by local registrars' offices. If the applicant is a registered voter, no further identification is required to obtain a free photo Id. Va. Code § 24.2-643 (version effective from July 1, 2014). Approximately 4, 500 free photo IDs have been issued.

         The language of SB 1256 also required that the photo ID be valid. Donald L. Palmer ("Palmer"), Secretary of the SBOE in 2013, testified that the definition of the term "valid" kindled considerable debate between the SBOE and Senator Obenshain, patron of SB 1256. In reviewing SBOE's regulations, Palmer discovered that in either 2000 or 2001, the SBOE had issued guidance to registrars that any form of identification expired in excess of thirty days should be considered invalid. In the ensuing discussions regarding SB 1256's implementation, the SBOE was not in favor of adopting any specific expiration period. Senator Obenshain sent a letter to the SBOE challenging its authority to permit any form of expired identification to be honored by election officials as valid. The SBOE, over the Senator's objection, voted to define a valid identification as one not expired over one year. (Trial Tr. 1621:4-17, Mar. 1, 2016 (Test, of Donald Palmer).)

         After inviting public comment, the regulation was adopted. Palmer also testified that in his opinion, SB 1256 deterred voter fraud and served as a valuable safeguard. (Id. at 1634:5-7.) In fact, he recalled that a computerized interstate cross-check of persons voting in Virginia against votes cast in other states revealed several cases of possible multiple voting. These cases were referred to the Virginia State Police but did not result in prosecution. (Id. at 1682:3-23.)

         According to Palmer, many of the provisions of SB 1256 were modeled after voter ID laws adopted in other states such as Georgia and South Carolina, which had been precleared by the Department of Justice pursuant to the Voting Rights Act. (Id. at 1650:16-23, 1680:10-14.)

         J. Justin Riemer ("Riemer"), Deputy Secretary of the SBOE from October 2011 through January 2014, testified to several initiatives the SBOE undertook to improve the electoral process in Virginia. For example, the SBOE promoted legislation allowing for the Department of Motor Vehicles ("DMV") to transmit completed voter registration forms electronically to the appropriate registrar's office so that those voters may be registered and added to the voter rolls. (Id. at 1554:3-55:11.) Additionally, the SBOE attempted to improve the process for absentee voting by allowing voters to apply for an absentee ballot online. (Id. at 1555:17-56:3.) Although this initiative ultimately launched after his tenure with the SBOE, he helped to lay the policy groundwork for its implementation. (Id. at 1556:4-6.)

         In the debate preceding the adoption of SB 1256, Riemer recalled commentary in the General Assembly concerning the existence of voter fraud. He specifically remembered a comment by Senator Thomas A. Garrett ("Senator Garrett"), in his former capacity as a Commonwealth's Attorney, that Garrett had prosecuted such a case. He also remembered an article in the Richmond Times-Dispatch indicating that voter related fraud may be a "bigger problem in Virginia than [the Times-Dispatch] had realized and ... had acknowledged." (Id. at 1563:11-64:2.) While Riemer recalled reports of voter registration fraud, he admitted no knowledge of any prosecution for in person voter fraud. He noted that the SBOE conducted no formal study of voter fraud before SB 1256 was adopted. (Id. at 1573:6-9.)

         Riemer did testify that an analysis was conducted to determine how many voters were in the DMV's system as either having operator's licenses or other forms of DMV identification. The results indicated that 93.22 percent of active voters in Virginia had some form of DMV-issued identification. (Pls.' Trial Exs. 168, 185.) Riemer conceded though that this statistic did not reflect the number of individuals residing in rural areas without access to a motor vehicle or were too disabled to get to polling locations.

         The 2012 legislation, in its original form, included a provision requiring voters to present photo identification. Delegate Jennifer McClellan ("Delegate McClellan"), a Democrat representing the Richmond area, testified that she was so concerned about its effect on her minority constituents that she approached Governor Robert McDonnell, a Republican, for assistance. Delegate McClellan described her district as an economically diverse majority-minority district with a total black population approaching seventy percent. She also believed that a number of her constituents born as late as 1940s may not have birth certificates enabling them to acquire the necessary identification. Furthermore, in her opinion, the photo identification issued by the DMV was the equivalent of a poll tax because of the $10 cost. She testified that she found the Republican rationale for the photograph bearing identification to be unpersuasive. She was unaware of any reported incidents of voter fraud that would be deterred by such legislation. (Trial Tr. 376:14-77:8, Feb. 23, 2016.)

         Delegate McClellan convinced Governor McDonnell that the photograph requirement would place an undue burden on her less-affluent constituents. At Delegate McClellan's urging, and after conferring with other groups representing minority interests, Governor McDonnell amended the 2012 legislation by adding non-photo ID options to the list of acceptable forms of identification. Governor McDonnell also pressed the General Assembly to include a budget item underwriting the cost of educating voters on the new identification requirements. Despite these modifications to the legislation, Delegate McClellan still opposed the 2012 voter identification bill. She testified that she had many constituents who were unemployed, had no driver's license, or any form of student identification. (Id. at 377:9-18.) Moreover, she stridently opposed the 2013 bill which revived the photo identification requirement. She added that no African-American member of the General Assembly supported the 2013 bill which, in her view, burdened her constituency. Voters in her district were opposed to the 2013 voter identification law because there was no compelling reason to amend the 2012 law by adding a photo identification requirement. (Id. at 380:18-82:7.) In their view, nothing occurred between 2012 and 2013 to justify such action.

         Prior to being elected to the Virginia Senate in 2015, Scott A. Surovell ("Senator Surovell") represented the Mount Vernon area of Fairfax County in the House of Delegates. He described his House district as predominately upper class with the exception of Gum Springs, an historic area with a lower income mix of African American and Latino population. The Senator described himself as a life-long political activist aggressively involved in voter recruitment and working the polls. Senator Surovell testified that he dedicated a considerable amount of time as a House member interacting personally with Gum Springs constituents. In his campaign for the state Senate in 2015, Senator Surovell testified that he knocked on approximately 25, 000 doors in the area he represents.

         Although Senator Surovell had only anecdotal evidence, and minimal hard numbers, he suspected that many Gum Springs residents had neither the resources nor the transportation to obtain any form of valid photo identification. Many residents of that area had no Virginia driver's license and relied on public transportation. The Fairfax County Registrar's Office, according to Senator Surovell, is located in the government center, which is approximately a two-hour bus ride from his district, and a forty-five minute commute by car. He believed this distance made a free form of voter identification beyond the reach of some lower income voters.

         Despite an unscientific poll of residents of his House district narrowly favoring a photo identification requirement to vote, [3] Senator Surovell led the opposition to such legislation on the House floor. He too was unconvinced that there were any reported incidents of voter impersonation in Virginia warranting such legislative action. He remembered asking his Republican colleagues to offer examples of voter fraud. He recalls none. In his view, the 2013 legislation was a "solution in search of a problem." (Id. at 312:23-24.) Although Senator Surovell argued forcefully on the floor of the Virginia General Assembly that such legislation limited the constitutional right of his constituents to vote, he admitted that he was unaware of any incidents where someone was actually denied the right to vote as a result of the photo identification law. While Senator Surovell suspected partisan motives for the adoption of the 2013 legislation, he conceded that popular support for photo identification was probably a factor in its adoption.

         Algie Howell, Jr., a former member of the Virginia House of Delegates, currently serving on the Virginia Parole Board, opposed voter identification laws. His opposition was based in part on his personal experience attending racially-segregated schools in Virginia, and what he described in his testimony as Virginia's fifty-year history of discrimination. He recalled that many members of his African-American family had no education. (Id. at 471:2-72:12.)

         Following the adoption of SB 1256, the VDOE launched a statewide pre-election campaign informing voters of the photo identification requirement. This included sending 86, 000 postcards to persons on the active voter list who DMV records reflected possessed no DMV-issued ID and would likely need a photo ID to vote under the new law. (Id. at 1474:20-75:6, Feb. 26, 2016 (Test, of Edgardo Cortes).) This excluded certain regular absentee voters who would not need photo ID to cast an absentee ballot. To educate local electoral board members, general registrars, and poll workers, the VDOE instituted training programs and issued handbooks and procedural guides. (Id. at 1471:5-14; id. at 940:5-24, Feb. 25, 2016 (Test, of Myron McClees).)

         Matthew J. Davis ("Davis"), the Chief Information Officer for the VDOE, also testified that his agency employed billboard ads, radio, and Facebook, to acquaint voters with the recently enacted identification requirements. (Id. at 1006:15-07:24.) The VDOE contracted with a marketing agency to assist in developing an outreach strategy. With the agency's assistance, the VDOE distributed over 500, 000 fliers and posters to registrars' offices. (Pls.' Trial Ex. 155.) There are 133 local registrar's offices in Virginia.

         In addition, Davis indicated that VDOE records reflected that 773 provisional ballots were cast by voters without valid identification in 2014, as reported by 129 Virginia jurisdictions. The following year in 2015, 408 provisional ballots were cast by voters with no acceptable form of identification. In 2015, however, twenty-seven jurisdictions failed to report the number of provisional ballots issued to voters without identification. ...


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