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Ohio Democratic Party v. Husted opinion 3561

Ohio Democratic Party v. Husted opinion 3561

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Date Created:August 23, 2016

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Case: 16-3561
Document: 59-2
Filed: 08/23/2016
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0204p.06
UNITED STATES COURT APPEALS
FOR THE SIXTH CIRCUIT
_________________
OHIO DEMOCRATIC PARTY; DEMOCRATIC PARTY
CUYAHOGA COUNTY; MONTGOMERY COUNTY
DEMOCRATIC PARTY; JORDAN ISERN; CAROL
BIEHLE; BRUCE BUTCHER,
Plaintiffs-Appellees,
JON HUSTED, his official capacity Secretary
State the State Ohio; MIKE DEWINE, his
official capacity Attorney General the State
Ohio,
Defendants-Appellants.
No. 16-3561
Appeal from the United States District Court
for the Southern District Ohio Columbus.
No. 2:15-cv-01802 Michael Watson, District Judge.
Argued: August 2016
Decided and Filed: August 23, 2016
Before: McKEAGUE, GRIFFIN, and STRANCH, Circuit Judges.
_________________
COUNSEL
ARGUED: Eric Murphy, OFFICE THE OHIO ATTORNEY GENERAL, Columbus,
Ohio, for Appellants. Marc Elias, PERKINS COIE LLP, Washington, D.C., for Appellees. BRIEF: Eric Murphy, Michael Hendershot, Stephen Carney, Steven Voigt,
OFFICE THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellants. Marc
Elias, Bruce Spiva, Elisabeth Frost, Rhett Martin, Amanda Callais, PERKINS COIE
LLP, Washington, D.C., Joshua Kaul, PERKINS COIE LLP, Madison, Wisconsin, Donald
McTigue, Corey Colombo, Derek Clinger, MCTIGUE COLOMBO LLC, Columbus,
Ohio, for Appellees. Chad Readler, JONES DAY, Columbus, Ohio, Michael Carvin,
Anthony Dick, Stephen Vaden, JONES DAY, Washington, D.C., Thomas Fisher,
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Ohio Democratic Party, al. Husted, al.
OFFICE THE INDIANA ATTORNEY GENERAL, Indianapolis, Indiana, Joseph
Vanderhulst, PUBLIC INTEREST LEGAL FOUNDATION, Plainfield, Indiana, Linda Carver
Whitlow Knight, GULLETT SANFORD ROBINSON MARTIN PLLC, Nashville, Tennessee,
Paul Orfanedes, JUDICIAL WATCH, INC. Washington, D.C., Elizabeth Wydra,
CONSTITUTIONAL ACCOUNTABILITY CENTER, Washington, D.C., for Amici Curiae.
McKEAGUE, J.; delivered the opinion the court which GRIFFIN, J., joined.
STRANCH, (pp. 43), delivered separate dissenting opinion.
_________________
OPINION
_________________
McKEAGUE, Circuit Judge. This case presents yet another appeal (there are several
pending the Sixth Circuit alone) asking the federal courts become entangled, overseers
and micromanagers, the minutiae state election processes. one denies that our
Constitution, defining the relationship between the people and the government, establishes
certain fundamental rights including the right vote that warrant vigilant enforcement. But
our Constitution also defines the relationship between spheres government, state and federal,
and their responsibilities for protecting the rights the people. The genius this balance
power less deserving vigilant respect.
Ohio national leader when comes early voting opportunities. The state election
regulation issue allows early in-person voting for days before Election Day. This really
quite generous. The law facially neutral; offers early voting everyone. The Constitution
does not require any opportunities for early voting and many thirteen states offer just one
day for voting: Election Day. Moreover, the subject regulation the product bipartisan
recommendation, amended pursuant subsequent litigation settlement. the product
collaborative processes, not unilateral overreaching the political party that happened
power. Yet, plaintiffs complain that allowance days early voting does not suffice under
federal law. They insist that Ohio prior accommodation days early voting, which also
created six-day Golden Week opportunity for same-day registration and voting established federal floor that Ohio may add but never subtract from. This astonishing proposition.
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Ohio Democratic Party, al. Husted, al.
Nearly third the states offer early voting.
Adopting plaintiffs theory
disenfranchisement would create one-way ratchet that would discourage states from ever
increasing early voting opportunities, lest they prohibited federal courts from later
modifying their election procedures response changing circumstances. Further, while the
challenged regulation may slightly diminish the convenience registration and voting, applies
even-handedly all voters, and, despite the change, Ohio continues provide generous,
reasonable, and accessible voting options all Ohioans. The issue not whether some voter
somewhere would benefit from six additional days early voting from the opportunity
register and vote the same time. Rather, the issue whether the challenged law results
cognizable injury under the Constitution the Voting Rights Act. conclude that does not.
Federal judicial remedies, course, are necessary where state law impermissibly
infringes the fundamental right vote. such infringement having been shown this case,
judicial restraint order. Proper deference state legislative authority requires that Ohio
election process allowed proceed unhindered the federal courts. Accordingly, and for
the reasons more fully set forth below, REVERSE the decision the district court insofar declared the subject regulation invalid and enjoined its implementation. BACKGROUND Procedural History
This appeal State Ohio officials from district court judgment declaring
state election regulation invalid violative equal protection and Section the Voting
Rights Act 1965. The law, known Senate Bill 238, amends Ohio Revised Code 3509.01 allow early in-person voting for period days before Election Day. Though the law
facially neutral, the district court held that results impermissible disparate burden
some African-American voters. Following ten-day bench trial November and December
2015, the district court issued its 120-page ruling May 24, 2016, the form findings
fact and conclusions law. The court enjoined enforcement S.B. 238, thereby effectively
restoring Ohio preexisting 35-day early in-person voting period. Ohio officials promptly
moved for stay, arguing that implementing the district court order ahead special election
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Ohio Democratic Party, al. Husted, al. August 2016, and the general election November 2016, would cause irreparable harm its boards elections and voting public. The court granted Ohio motion part, staying its
order only with respect the special election that has since taken place August Ohio
officials did not appeal the court ruling the motion stay, but asked expedite the
merits appeal the matter may resolved prior the November general election, motion
granted. Voting Ohio brief review recent voting regulation history Ohio provides context. 2004,
Ohio permitted absentee ballots only registered voters asserted one several excuses. See
Ohio Rev. Code 3509.02(A)(1) (8) (2004). The timeline for voting absentee ballot was
generous: voter could pick ballot days before Election Day, the first five which
extended into Ohio voter registration period (which ended days before election). Thus,
Ohio maintained five-day overlap its registration period and its absentee voting period,
allowing residents armed with proper excuse both register and vote (absentee) the same
day. This same-day registration window became known Ohio Golden Week. 117,
Opinion 34, Page 6156.
The 2004 presidential election brought special challenges Ohio general voting
apparatus. Among other problems, Ohio voters faced long lines and wait-times that, some
polling places, stretched into the early morning the following day. Obama for America
Husted, 697 F.3d 423, 426 (6th Cir. 2012). Largely response this experience, Ohio refined
its absentee voting system 2005 permit early voting without need excuse. Id. Ohio
residents enjoying the freedom this no-fault no-excuse system could vote absentee
mail person early in-person EIP voting) their convenience. Ohio retained its preexisting absentee voting time frame.
Until 2012, each Ohio county boards elections retained the discretion
implement its own schedule for early in-person absentee voting. Varying schedules resulted.
remedy the inconsistencies, task force from the Ohio Association Election Officials
(OAEO), bipartisan association election officials, proposed adoption uniform 21-day
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early in-person voting schedule, under which the period for early absentee voting would
start nine days after the end the voter registration period. 2012, Ohio passed law based the OAEO recommendation, but repealed after the
law became subject referendum. 2013, another bipartisan task force recommended that
absentee voting not allowed until the day after the registration period closed, establishing
early voting time frame days instead the previously recommended days.
February 19, 2014, Ohio passed S.B. 238, amending Ohio Rev. Code 3509.01 make the first
day early absentee voting whether early in-person mail the day after the close
voter registration. This amendment effectively eliminated Golden Week and the possibility
same-day registration.
Shortly before the 2014 election, the NAACP and other groups challenged S.B. 238,
alleging that disproportionally affected African Americans, thereby (1) violating the Equal
Protection Clause the Fourteenth Amendment burdening African Americans fundamental
right vote; and (2) violating Section the Voting Rights Act 1965 burdening AfricanAmerican voters ability participate effectively Ohio political process. Though panel
this court upheld preliminary injunction preventing implementation the law, see Ohio State
Conference NAACP Husted, 768 F.3d 524, 529 (6th Cir. 2014) (hereinafter NAACP the
Supreme Court stayed the injunction, Husted Ohio State Conference NAACP, 135 Ct.
(2014), and the panel subsequently vacated its decision for mootness. Ohio State Conference
NAACP Husted, 2014 10384647, (6th Cir. Oct. 2014). Thus, the 2014 election
took place with S.B. 238 full effect. After the election, the parties NAACP reached
settlement under which Ohio added another Sunday early in-person voting well
additional evening hours, and the plaintiffs voluntarily dismissed their claim challenging the 29day voting period.1
This brings the present action. After NAACP settled, plaintiffs this action, the
Ohio Democratic Party, the Democratic Party Cuyahoga County, the Montgomery County
Democratic Party, and three individuals (collectively referred plaintiffs the
Plaintiffs the case before were not parties the settlement.
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Democratic Parties evidently finding the settlement negotiated the NAACP
unsatisfactory, challenged S.B. 238 (as modified per settlement) and other Ohio laws violating
the Equal Protection Clause and Section the Voting Rights Act, U.S.C. 10301.2
Despite subsequently acknowledging that Ohio national leadership voting opportunities commended, 125, Stay Order, Page 6302, the district court held that S.B. 238
violated the Equal Protection Clause and the Voting Rights Act based largely what called
the highly persuasive reasoning this court since-vacated ruling upholding preliminary
injunction NAACP. See 117, Opinion 36, Page 6156 57.
Regarding plaintiffs equal protection challenge, the district court concluded that S.B.
238 imposed modest (i.e., more than minimal but less than significant disparate burden
African Americans. The numerous opportunities cast ballot Ohio, including vot[ing]
mail, person Election Day, and other EIP voting days were deemed insufficient
mitigate the burden.
See 117, Opinion 36, 43, Page 6156 58, 6164 65.
Although Ohio allows numerous and convenient registration options (including registration
mail), more than four weeks absentee voting, and more than three weeks early in-person
voting, the district court acknowledged that there are minimal postage costs associated with
voting mail and accepted what characterized anecdotal evidence that African
Americans are distrustful voting mail conclude that voting mail may not
suitable alternative early in-person voting for many African-Americans. Id. 44, Page
6165 66.
The court concluded that, despite Ohio generous voting options, S.B. 238
modification Ohio early voting schedule resulted disparate burden some AfricanAmerican voters. And despite accepting the legitimacy Ohio asserted interests (preventing
fraud, decreasing costs, reducing administrative burdens, and enhancing voter confidence, id.
The Democratic Parties also challenged Ohio statutes: (1) establishing one early in-person voting location
per county; (2) altering the number voting machines per county; (3) revamping the requirements for unsolicited
absentee-ballot mailing applications; and (4) regarding the state absentee and provisional ballot requirements. 117, Opinion Page 6124. The district court rejected all these claims, and plaintiffs did not crossappeal. However, display incongruity between district court judges the same district, separate district
court the Southern District Ohio, fully aware the district court ruling this case, found Ohio very same
absentee-ballot and provisional-ballot laws constitute significant burden not justified the State interests.
Ne. Ohio Coal. for the Homeless Husted, No. 2:06-CV-896, 2016 3166251, *36 (S.D. Ohio June 2016).
The court declared both laws violative the Equal Protection Clause and Section the Voting Rights Act.
Ohio appeal that decision currently pending before different panel this court.
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Ohio Democratic Party, al. Husted, al. 57, Page 6171 79), the court held they did not justify the modest burdens imposed the
law.
The court then turned the Democratic Parties Voting Rights Act claim and held that
S.B. 238 violated Section the Voting Rights Act interacts with the historical and social
conditions facing African Americans Ohio reduce their opportunity participate Ohio
political process relative other groups voters[.] Id. 107, Page 6229.
II. EQUAL PROTECTION Framework
Election cases rest the intersection two competing interests.
Though not
delineated right per se, the Supreme Court has readily acknowledged the general right vote
implicit our constitutional system. Mixon State Ohio, 193 F.3d 389, 402 (6th Cir.
1999) (quoting San Antonio Indep. School Dist. Rodriguez, 411 U.S. n.78, (1973)).
such, this precious and fundamental right afforded special protection the courts,
Harper Virginia State Bd. Elections, 383 U.S. 663, 670 (1966), voting the most
fundamental significance under our constitutional structure. Burdick Takushi, 504 U.S. 428,
433 (1992) (citation omitted).
Against this backdrop, however, also acknowledge the
obvious: the right vote any manner [is not] absolute, id., the Constitution
recognizes the states clear prerogative prescribe the Times, Places and Manner holding
Elections for Senators and Representatives. U.S. Const. Art. cl. Common sense,
well constitutional law, compels the conclusion that [there] must substantial
regulation elections they are fair and honest and some sort order, rather than
chaos, accompany the democratic processes. Burdick, 504 U.S. 433 (quoting Storer
Brown, 415 U.S. 724, 730 (1974)). Federal law thus generally defers the states authority
regulate the right vote. See Crawford Marion Cty. Election Bd., 553 U.S. 181, 203
(2008) (Stevens, J., op.) (recognizing that neutral, nondiscriminatory regulation will not
lightly struck down, despite partisan motivations some lawmakers, avoid frustrating
the intent the people elected representatives).
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When constitutional challenge election regulation calls resolve dispute
concerning these competing interests, apply the so-called Anderson-Burdick framework,
analysis arising from the Supreme Court holdings Anderson Celebrezze, 460 U.S. 780
(1983), and Burdick Takushi, 504 U.S. 428 (1992).
The Anderson-Burdick framework
involves the following considerations:
[T]he court must first consider the character and magnitude the asserted injury the rights protected the [Constitution] that the plaintiff seeks vindicate.
Second, must identify and evaluate the precise interests put forward the State justifications for the burden imposed its rule. Finally, must determine the
legitimacy and strength each those interests and consider the extent which
those interests make necessary burden the plaintiff rights.
Green Party Tennessee Hargett, 791 F.3d 684, 693 (6th Cir. 2015) (internal quotation
marks and citations omitted). Though the touchstone Anderson-Burdick its flexibility
weighing competing interests, the rigorousness our inquiry into the propriety state
election law depends upon the extent which challenged regulation burdens First and
Fourteenth Amendment rights. Burdick, 504 U.S. 434. This flexible balancing approach
not totally devoid guidelines. state imposes severe restrictions plaintiff
constitutional rights (here, the right vote), its regulations survive only narrowly drawn
advance state interest compelling importance.
Id. the other hand, minimally
burdensome and nondiscriminatory regulations are subject less-searching examination
closer rational basis and the State important regulatory interests are generally sufficient
justify the restrictions. Ohio Council Am. Fed State Husted, 814 F.3d 329, 335 (6th
Cir. 2016) (citing Hargett, 767 F.3d 546, and quoting Burdick, 504 U.S. 434). Regulations
falling somewhere between i.e., regulations that impose more-than-minimal but less-thansevere burden require flexible analysis, weighing the burden the plaintiffs against the
state asserted interest and chosen means pursuing it. Hargett, 767 F.3d 546.
Because plaintiffs have advanced broad attack the constitutionality S.B. 238,
seeking relief that would invalidate the statute all its applications, they bear heavy burden persuasion. Crawford, 553 U.S. 200 (Stevens, J., op.). Because conclude that S.B. 238
results, most, minimal disparate burden some African Americans right vote, and
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because the State legitimate interests are sufficiently weighty justify this minimal burden,
S.B. 238 easily survives plaintiffs equal protection challenge. See id. 190. Disparate Burden African-American Voters District Court Characterization
The first step evaluating the plaintiffs equal protection challenge requires
identify the character and magnitude the burden African-American voters result
the challenged law.
The district court identified the burden imposed some African
Americans right vote considering the changes effected S.B. 238, rather than
examining Ohio election regime whole. The court found that operation S.B. 238
resulted disparate burden some African Americans function two changes: (1)
reducing the overall [early in-person] voting period, and (2) eliminating the opportunity for
[same-day registration]. 117, Opinion 35, Page 6157.
Regarding the reduction the early in-person voting period, the district court discerned
burden after accepting three simple premises: (1) that tens thousands people voted during
Golden Week both 2008 and 2012 and are likely the upcoming 2016 election;
(2) that S.B. 238 elimination Golden Week requires that [i]ndividuals who would have
voted during Golden Week future elections must now vote other days during the early
voting period, vote absentee mail, vote Election Day, not vote all; and (3) because
African Americans have shown preference for voting early person (and during Golden
Week) rate higher than other voters, the elimination the extra days for EIP voting
provided Golden Week will disproportionately burden African Americans. Id. 36, Page 6158.
The district court further noted that beginning early in-person voting after the
registration period eliminated same-day registration, meaning that voters must now register
and vote separate times, which increases the cost voting, especially for socioeconomically disadvantaged groups. Id. 40, Page 6162. That is, the court recognized that may more difficult for voters with time, resource, transportation, and childcare restraints
make two separate trips register and vote, and Golden Week allowed individuals both
once. Id. The district court concluded that, because African Americans particular are more
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likely subject economic, transportation, time, and childcare constraints, id. 40, Page 6162, they disproportionately make the group that benefits the most from [same-day
registration], and the elimination that opportunity burdens their right vote. Id. 42, Page 6164. Taking the reduction early in-person voting days and the elimination same-day
registration together, the district court characterized the changes effected S.B. 238
imposing modest burden African Americans right vote. Id. Defining the Burden threshold matter, note that the district court characterization the resultant
burden modest not factual finding, but legal determination subject novo review.
See Bright Gallia Cnty., 753 F.3d 639, 652 (6th Cir. 2014) (explaining that legal conclusions
masquerading factual allegations not convert legal questions into factual ones);
Libertarian Party Ohio Blackwell, 462 F.3d 579, 587 (6th Cir. 2006) (evaluating factual and
evidentiary factors reach legal conclusion the magnitude burden); Hargett, 767 F.3d 547 Whether voting regulation imposes severe burden question with both legal and
factual dimensions. Williams Mehra, 186 F.3d 685, 689 (6th Cir. 1999) (en banc) (applying novo review mixed questions law and fact, observing that findings ultimate fact
based the application legal principles subsidiary facts are subject novo review.
Inasmuch the State does not challenge the district court findings fact, evaluate novo
the district court application legal principles those subsidiary facts characterizing the
burden made out those facts.
The undisputed factual record shows that easy vote Ohio. Very easy, actually.
Viewing S.B. 238 one component Ohio progressive voting system, and considering the
many options that remain available Ohio voters, even accepting the district court focus
the changes wrought S.B. 238, the removal Golden Week can hardly deemed impose true burden any person right vote. worst, represents withdrawal contraction just one many conveniences that have generously facilitated voting participation Ohio.
This especially apparent when Ohio voting practices are compared those other states.
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Ohio early voting system, amended S.B. 238, one the more generous the
nation. The State 29-day early voting period currently the tenth-longest among all the states. 127-14, Trende Rep. 10, Page 6610. When compared the thirteen states (including
two other states our circuit, Kentucky and Michigan) that not permit any early in-person
voting days, Ohioan path voting open and easy, not burdensome. And S.B. 238
withdrawal the convenience same-day registration hardly obstructive; merely brings
Ohio into line with thirty-eight other states that require registration before individual may
vote.3 Ironically, Ohio had never expanded access absentee ballots the first place and
maintained early voting systems similar Michigan Kentucky (permitting early inperson voting), would have avoided this challenge altogether, well those addressed
Obama for America, 697 F.3d 423, and our since-vacated preliminary injunction decision
NAACP, 768 F.3d 524. Instead, [Ohio willingness further than many States
extending the absentee voting privileges that has provided [plaintiffs] with basis for arguing
that the provisions operate invidiously discriminatory fashion deny them more
convenient method exercising the franchise. McDonald, 394 U.S. 810 (emphasis
added). plaintiffs disregard the Constitution clear mandate that the states (and not the
courts) establish election protocols, instead reading the document require all states
maximize voting convenience. Under this conception the federal courts role, little stretch
imagination needed fast-forward and envision regime judicially-mandated voting
text message Tweet (assuming course, that cell phones and Twitter handles are not
disparately possessed identifiable segments the voting population).
The district court ignored Ohio national leadership affording privileged voting
opportunities, believing that comparison Ohio early-voting system that other states was
irrelevant under Anderson-Burdick. fail see the merit wearing blinders.
While
comparisons with the laws and experience other states may not determinative
challenged law constitutionality, ignore such information irrelevant needlessly forfeit potentially valuable tool construing and applying equal protection the laws,
constitutional standard applicable all the states. Forfeiting such tool would artificially
See Same Day Voter Registration, National Conference State Legislatures (May 25, 2016),
http://www ncsl.org/research/elections-and-campaigns/same-day-registration.aspx.
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constrict the court vision and deny reality: courts routinely examine the burden resulting from state regulation with the experience its neighboring states. See Blackwell, 462 F.3d 589
(comparing Ohio process for permitting minor political parties gain access the general
election ballot with numerous other states); Hargett, 791 F.3d 694 (comparing Tennessee
access-retention system broadly other states); Frank Walker, 768 F.3d 744, 745 (7th Cir.
2014) (comparing Wisconsin voter-ID statute Indiana s). certainly recognize that different states may offer different justifications for the
existence absence early in-person voting same-day registration, and not suggest that
Ohio may escape challenges election regulations simply pointing the least
accommodating state and saying, better. Rather, reject the notion that such
comparisons are irrelevant, they provide contextual basis for determining whether the
burden said fall here disproportionately some African-American voters properly
characterized non-existent, minimal, slight, limited, modest, significant,
enormous, severe. And besides, Ohio not simply arguing its practices are better. Instead,
State officials are defending liberal absentee voting practice that facilitates participation all
members the voting public, including those socioeconomically disadvantaged groups, see 117, Opinion 40, Page 6162, whatever race ethnic background, manner more
accommodating than the practices most other states, affording no-questions-asked right absentee ballot and litany ways use it.
Thus, evaluating the magnitude the burden, find that elimination Golden
Week small part what remains, objectively viewed, generous early voting schedule. The
notion that S.B. 238 elimination same day registration disparately imposes anything more
than minimal burden some African Americans ignores the abundant and convenient
alternatives that remain for all Ohioans who wish vote.
Consider the numerous options available all Ohio voters, including African Americans, conveniently cast ballot before Election Day. The State use no-excuse absentee
ballots provides any interested resident the chance cast ballot more than four weeks before
Election Day mail, and more than three weeks before Election Day voter prefers person. Ohio Rev. Code 3509.01. Moreover, this early in-person voting schedule includes
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two Saturdays, two Sundays, and ten days when voting permitted until either 6:00 p.m. 7:00
p.m. for voters who are distrustful voting mail, 117, Opinion 43, Page 6165,
who are assisted Souls the Polls initiatives, Page 6168, who struggle find time
away from hourly wage jobs, Page 6162, who merely prefer save postage. And
these accommodations are direct result the settlement reached NAACP which was
specifically designed accommodate voters Ohio African-American communities. See
127-14, Settlement, Page 6775 77.
The district court placed inordinate weight its finding that some African-American
voters may prefer voting Sundays, avoiding the mail, saving postage, voting after
nine-to-five work day. the extent S.B. 238 may viewed impacting such preferences, its
burden clearly results more from matter choice rather than state-created obstacle.
Frank, 768 F.3d 749. The Equal Protection Clause, applied under the Anderson-Burdick
framework, simply cannot reasonably understood demanding recognition and
accommodation such variable personal preferences, even the preferences are shown
shared higher numbers members certain identifiable segments the voting public. also conclude that the elimination same-day registration and the resulting need for
Ohioans register and vote separate occasions is, most, minimally burdensome. Like
voting before Election Day, Ohio also makes registration easy.
Registration forms are
conveniently distributed throughout its communities the boards elections offices well many other locations, including local libraries, many the municipal city halls, high
schools and can even printed from county websites. 97, Perlatti Tr., Page 4067.4
And this isn enough, the Secretary State mailed absentee ballot applications almost
every registered voter the state the past two elections and plans the 2016
election. Id. Thus, even without Golden Week, Ohio registration and voting processes afford
abundant opportunity for all Ohio voters, whatever racial ethnic background, register and
exercise their right vote.
Ohio has also recently passed law permitting voters register online, long they verify their social
security number and input their driver license number identification card number establish proof identity.
See S.B. (2016) (effective 9/13/2016).
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Ohio Democratic Party, al. Husted, al. surprise then, that the Supreme Court Crawford rejected analogous challenge undeniably more burdensome law based this sort burden making second trip
vote argument. The Court held that first going the Bureau Motor Vehicles and then
casting ballot was ultimately more burdensome than the usual challenges voting.
Crawford, 553 U.S. 198 (Stevens, J., op.) (the inconvenience making trip the
BMV, gathering the required documents, and posing for photograph surely does not even
represent significant increase over the usual burdens voting, even though somewhat
heavier burden may placed limited number persons including the elderly, the
economically disadvantaged, and the homeless). Scrounging birth certificate, making trip the BMV, and obtaining photo surely cannot considered less burdensome than
submitting one Ohio virtually ubiquitous registration cards (which can mailed back,
dropped off person, returned another) and enjoying the convenience no-excuse early
absentee voting any one Ohio twenty-nine voting days.
Therefore, viewing S.B. 238 objectively under the Anderson-Burdick framework
manner consonant with the Court most recent application the framework Crawford,
see regulation that can only characterized minimally burdensome the right some
African-American voters. Beyond evidence that African Americans may use early in-person
voting higher rates than other voters and may therefore theoretically disadvantaged
reduction the early voting period, the record does not establish that S.B. 238 opposed
non-state-created circumstances actually makes voting harder for African Americans.
Plaintiffs not point any individual who, post-S.B. 238, will precluded from voting.
Without sufficient evidence quantify either the magnitude the burden this narrow class voters the portion the burden that fully justified, the Crawford Court refused accept
bare assertions that small number voters may experience special burden and instead
looked the statute broad application all state voters concluding that the law imposed
only limited burden voters rights. Crawford, 553 U.S. 200, 202 (Stevens, J., op.).
The Crawford application Anderson-Burdick consistent with our precedent
recognizing that broadly applicable and non-discriminatory laws are presumed pass
constitutional muster: the State had enacted generally applicable, nondiscriminatory voting
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regulation that limited in-person early voting for all Ohio voters, its important regulatory
interests would likely sufficient justify the restriction. Obama for America, 697 F.3d
433 (quoting Burdick, 504 U.S. 434);5 see also Washington State Grange Washington
State Republican Party, 552 U.S. 442, 452 (2008) statute imposes only modest burdens,
however, then the State important regulatory interests are generally sufficient justify
reasonable, nondiscriminatory restrictions election procedures. (internal quotation marks
omitted; emphasis added)). The Crawford Court also recognized, fact, that had applied
Anderson standard for reasonable, nondiscriminatory restrictions and upheld Hawaii
prohibition write-in voting even though actually prevented significant number voters
from participating Hawaii elections meaningful manner. Crawford, 553 U.S. 190
(Stevens, J., op.) (internal citation and quotation marks omitted; emphasis added).
Considering the generally applicable and non-discriminatory nature S.B. 238 light Ohio generous absentee voting system, system which provides extensive opportunities for
all voters, including African Americans, cast their ballots short coming out Election
Day, hold that S.B. 238 results only minimal burden African Americans right vote.
See Burdick, 504 U.S. 434 (assessing Hawaii ban write-in votes for candidates
light the State otherwise easy access the ballot Ohio Council, 814 F.3d 335 (holding
that ballot restrictions judicial candidates imposed only minimal burdens political parties
because Ohio law gave parties many other opportunities champion [their] nominee[s]
therefore reject the district court conclusion that S.B. 238 imposes modest burden.
next look the State interests adopting the regulation. See Crawford, 553 U.S. 190
(Stevens, J., op.). State Interests
Because S.B. 238 minimally burdensome and nondiscriminatory, apply
deferential standard review akin rational basis and Ohio need only advance important
regulatory interests satisfy the Anderson-Burdick analysis. See Burdick, 504 U.S. 434;
Ohio Council, 814 F.3d 338 (plaintiffs bear heavy constitutional burden demonstrate
Obama for America, 697 F.3d 436, held that facially discriminatory law granting military personnel
additional voting days was unlikely survive constitutional scrutiny.
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that state minimally burdensome law unconstitutional). Here, the interests advanced the
State are analogous to, and even better substantiated than those accepted sufficient
Crawford. follows that the State present interests pass muster under Anderson-Burdick: they
justify the minimal burden potentially visited some African-American voters result
S.B. 238. However, even were accept the district court characterization the burden modest, which may conceivably trigger slightly less deferential review under the
flexible Anderson-Burdick framework, Ohio proffered interests are still sufficiently
weighty justify it.
Ohio contends S.B. 238 serves four legitimate interests: (1) preventing voter fraud;
(2) reducing costs; (3) reducing administrative burdens; and (4) increasing voter confidence and
preventing voter confusion. 117, Opinion 49, Page 6171. The district court rejected
Ohio justifications, noting that while they may legitimate, the State insufficient
evidence shows they are minimal, unsupported, not accomplished S.B. 238. Id. 56,
burdensome, the Anderson-Burdick analysis never requires state actually prove the
sufficiency the evidence. Munro Socialist Workers Party, 479 U.S. 189, 195 (1986)
(explaining that contrary rule would would invariably lead endless court battles over the
sufficiency the evidence
Rather, least with respect minimally burdensome
regulation triggering rational-basis review, accept justification sufficiency
legislative fact and defer the findings Ohio legislature long its findings are
reasonable. See Frank, 768 F.3d 750; see also Munro, 479 U.S. 195 96.
Voter Fraud and Public Confidence. Ohio first justifies S.B. 238 asserting that
decreases the opportunity for voter fraud arising from same-day registration during Golden
Week. The district court discounted Ohio interest combating potential fraud because, while
the general opinion evidence [showed] that Golden Week increases the opportunity for voter
fraud actual instances voter fraud during Golden Week are extremely rare and [t]his
very limited evidence voter fraud insufficient justify the modest burden imposed S.B.
238. 117, Opinion 49, Page 6171 72. But not require elaborate, empirical
verification the weightiness the State asserted justifications. Timmons Twin Cities
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Area New Party, 520 U.S. 351, 364 (1997). Moreover, such view totally irreconcilable with
Crawford, which upheld unquestionably more burdensome regulation requiring all in-person
voters Indiana maintain and present photo identification issued the government even
where the record contain[ed] evidence any such fraud actually occurring Indiana any
time its history. Crawford, 553 U.S. 194 (Stevens, J., op.). The Court had
question about the legitimacy importance the State interest counting only the votes
eligible voters, id. 196, and because the risk voter fraud [is] real [and] could affect the
outcome close election, the Court declined examine Indiana total lack evidence that
the photo identification law would actually preclude fraud the way was designed to. Id.
195 96.
Here, Ohio offers inconclusive, but concrete evidence voter fraud during Golden
Week same-day registration period. Under Crawford teaching, working achieve that goal sufficiently weighty interest justify the minimal burden experienced some AfricanAmerican voters. Crawford, 553 U.S. 191 (Stevens, J., op.). Running tandem with the
State interest preventing voter fraud its closely related, but independently significant
justification for eliminating same-day registration:
safeguarding public confidence
eliminating even appearances fraud. The Crawford court accepted this justification
practically self-evidently true, observing that state electoral system cannot inspire public
confidence safeguards exist deter detect fraud confirm the identity voters.
Crawford, 553 U.S. 197 (Stevens, J., op.). Unlike the district court, adhere Crawford
approach and conclude that the State purpose preventing potential fraud and promoting
public confidence furtherance legitimate and important regulatory interests.
The district court was not only dissatisfied with Ohio evidence, but also with Ohio
method combatting potential fraud. Part the State fraud-based rationale arose from the
bipartisan OAEO recommendation that early voting begin only after the close registration,
because overlapping registration and voting periods were deemed constitute the greatest time
for voter fraud occur. 103, Ward Tr., Page 5329; 104, Damschroder Tr., Page
5448 (explaining that Golden Week presented unique risk for voter fraud where person
could, one event, one moment, both register vote, request absentee ballot and cast
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absentee ballot and then disappear S.B. 238 addressed this concern eliminating Golden
Week same-day registration. The district court, again relying our vacated decision
NAACP, 768 F.3d 547, attacked the efficacy eliminating same-day registration targeting
potential fraud pointing hypothetical voter who could still register vote days before
the election and then return cast early in-person ballot the 29th day before the election theory, voting before the board elections completed its mail verification process. 117,
Opinion 51, Page 6173.
Yet, our task (especially with respect minimally burdensome laws) neither craft
the best approach, nor impose our own idea democracy upon the Ohio state legislature.
Libertarian Party, 462 F.3d 587; see also Crawford, 553 U.S. 196 (Stevens, J., op.) While
the most effective method preventing election fraud may well debatable, the propriety
doing perfectly clear. ).6 Rather, simply call balls and strikes and apply generous
strike zone when the state articulates legitimate and reasonable justifications for minimally
burdensome, non-discriminatory election regulations.7
Given the weight afforded State
measures targeting potential fraud (even without evidentiary support) Crawford; and given the
Court hesitation scrutinize the regulation fraud-fighting effectiveness, accept Ohio
goal reducing potential voter fraud important regulatory interest sufficient justify
the minimal burden identified this case. See Ohio Council, 814 F.3d 338. Moreover, Ohio
offers additional justifications.
Administrative Burdens. Asserting that its boards elections are extremely busy with
finalizing ballots, running ballots through voting machines for logic and accuracy testing,
processing the registration wave that arrives near the close registration, and recruiting and one Ohio witness asked rhetorically, you get weather forecast that says there chance rain, you run around and open all your windows you have wider open window, you close all your windows
when there chance rain[?] 103, Ward Tr., Page 5329. Ohio elimination same-day registration
limit mitigate potential fraud reasonable step, even will not erase all possibilities fraud.
See e.g., Hearing Before the Senate Judiciary Comm. the Nomination The Honorable John
Roberts, U.S.C.J., the Chief Justice the United States, 109th Cong. (Sept. 12, 2005), available
http://www.washingtonpost.com/wp-dyn/content/article/2005/09/13/AR2005091300693 html (statement John
Roberts) [I]ts job call balls and strikes and not pitch bat. see also Weber Shelley, 347 F.3d 1101,
1107 (9th Cir. 2003) [I]t the job democratically-elected representatives weigh the pros and cons various
balloting systems. long their choice reasonable and neutral, free from judicial second-guessing.
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training poll workers, Ohio justifies S.B. 238 reflecting realization the need balance
early-voting options with the burdens boards elections. Again, the district court rejected
the State justification because the only evidence support that notion [was] that 2010,
the Ohio Association Election Officials [OAEO] task force, aware these administrative
concerns, recommended that early voting begin twenty-one days before Election Day and the
State failed prove that the boards would unable manage the administrative burdens and
costs associated with Golden Week. 117, Opinion n.18, Page 6177.
Again, the district court demanded too much. agree rather with the Supreme Court
that legislatures should permitted respond potential deficiencies the electoral process
with foresight rather than reactively. Munro, 479 U.S. 195. Requiring that [s]tate
political system sustain some level damage before the legislature could take corrective action neither practical, nor constitutionally compelled. Id.8 Again, note that S.B. 238
minimally burdensome and facially non-discriminatory, and therefore not violative equal
protection advances important regulatory interests. Ohio Council, 814 F.3d 338.
Ohio proffered interests preventing voter fraud, increasing voter confidence eliminating
appearances voter fraud, and easing administrative burdens boards elections are
undoubtedly important regulatory interests, see Crawford, 553 U.S. 194 (Stevens, J.,
op.). The State interests thus provide ample justification. hold that plaintiffs have failed
establish their heavy constitutional burden demonstrating that S.B. 238 unconstitutional.
Ohio Council, 814 F.3d 338. final note, the district court failed consider Crawford when evaluating Ohio
interests due its nearly wholesale reliance our vacated decision NAACP, which went
great lengths distinguish Crawford ready acceptance voter fraud and voter confidence
sufficient justifications for regulation that imposed only limited burden voter rights.
Crawford, 553 U.S. 203 (Stevens, J., op.). the extent relied our now-vacated decision,
The same true regarding the district court outright rejection Ohio cost savings arguments.
Though saving tens thousands dollars may minimal benefit when compared the overall election
budgets, 117, Opinion 54, Page 6175 76, reject the district court dubious and blanket proposition
that where more than minimal burdens voters are established, the State must demonstrate that such costs would
actually burdensome. Id. 6176 (citing NAACP, 768 F.3d 548) (emphasis added). Fiscal responsibility,
even only incrementally served, undeniably legitimate and reasonable legislative purpose.
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the district court erred. NAACP different case, S.B. 238 that time still included the
Secretary State Directive 2014-17 that eliminate[ed] all evening voting hours for nonpresidential elections and provid[ed] only one Sunday [early in-person] voting. NAACP,
768 F.3d 539; see 127-14, Settlement, PID 6775 (removing Directive 2014-17 and
establishing agreed-upon voting schedule). NAACP therefore analyzed Ohio law one
imposing burden that was significant although not severe, requiring more justification than
the modest burden the district court identified this case, interest here hold
minimal. The district court therefore used NAACP imperfect legend, and applied
different map. Its reliance the vacated NAACP decision was not sound. Moreover, the
vacated opinion NAACP evinced certain dissatisfaction with the Crawford Court ruling
and preference for the view dissenting Justices. the extent the district court, relying NAACP, effectively resuscitated reasoning odds with the holding Crawford, the district
court ignored fundamental our hierarchical judicial system, which precludes lower court
from declar[ing] statute unconstitutional just because [it] thinks that the dissent was right
and the majority wrong. Frank, 768 F.3d 750.
When evaluating neutral, nondiscriminatory regulation voting procedure, [w]e
must keep mind that [a] ruling unconstitutionality frustrates the intent the elected
representatives the people. Crawford, 553 U.S. 203 (Stevens, J., op.) (quoting Ayotte
Planned Parenthood Northern New Eng., 546 U.S. 320, 329 (2006)). Plaintiffs prefer that
adopt broad rule that any expansion voting rights must remain the books forever. Such
rule would have chilling effect the democratic process: states would have little incentive
pass bills expanding voting access if, once place, they could never modified way that
might arguably burden some segment the voting population right vote. Accepting the
long recognized role the States laboratories for devising solutions difficult legal
problems, Arizona State Legislature Arizona Indep. Redistricting Comm 135 Ct. 2652,
2673 (2015), hold that imposing such one-way ratchet incompatible with the flexible
Anderson-Burdick framework.
Applying Anderson-Burdick S.B. 238, hold that the State justifications easily
outweigh and sufficiently justify the minimal burden that some voters may experience.
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Accordingly, plaintiffs equal protection challenge fails and the district court decision must,
this respect, reversed.
III. VOTING RIGHTS ACT Section
The district court also held that S.B. 238 violates the Voting Rights Act, U.S.C.
10301. originally passed, the Voting Rights Act VRA was interpreted prohibit only
intentional discrimination. City Mobile Bolden, 446 U.S. 55, (1980) (plurality op.).
However, Congress amended the law 1982 add results test, making showing
intentional discrimination unnecessary. See Moore Detroit Sch. Reform Bd., 293 F.3d 352,
363 (6th Cir. 2002). amended, Section 2(a) prohibits state from impos[ing]
appl[ying] any voting qualification prerequisite voting standard, practice,
procedure which results denial abridgement the right any citizen the United
States vote account race color[.] U.S.C. 10301(a) (emphasis added). The
statute explains Section 2(b) that voting prerequisite, standard, practice, procedure
deemed result such denial abridgment the right vote account race
color if:
[B]ased the totality circumstances, shown that the political processes
leading nomination election the State political subdivision are not
equally open participation members class citizens protected
subsection (a) that its members have less opportunity than other members the electorate participate the political process and elect
representatives their choice. The extent which members protected
class have been elected office the State political subdivision one
circumstance which may considered: Provided, That nothing this section
establishes right have members protected class elected numbers equal their proportion the population. U.S.C. 10301(b) (bold emphasis added). The text therefore retained prohibition against
intentional discrimination under 10301(a), but added Section 2(b) cover unequally open
political processes. See Baird Consol. City Indianapolis, 976 F.2d 357, 359 (7th Cir.
1992). currently stands, Section 2(b) encompasses two types claims: vote-dilution
claim, which alleges that districting practice denies minorities equal opportunity elect
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representatives their choice, and vote-denial claim,9 which alleges the denial
opportunity participate the political process. See U.S.C. 10301(a) (b).
The majority cases interpreting Section arose the vote-dilution context, epitomized the Supreme Court decision Thornburg Gingles, 478 U.S. 30, (1986)
(establishing framework for evaluating claims that jurisdiction use at-large multimember electoral system redistricting plan diluted minority votes, thereby diminishing the
ability minority groups elect representatives their choice).
While vote-dilution
jurisprudence well-developed, numerous courts and commentators have noted that applying
Section results test vote-denial claims challenging, and clear standard for its
application has not been conclusively established. See Veasey Abbott, --- F.3d ---, 2016
3923868 *17 (5th Cir. July 20, 2016) (en banc) [T]here little authority the proper test
determine whether the right vote has been denied abridged account race); see also
Simmons Galvin, 575 F.3d 24, n.24 (1st Cir. 2009) While Gingles and its progeny have
generated well-established standard for vote dilution, satisfactory test for vote denial cases
under Section has yet emerge [and] the Supreme Court seminal opinion Gingles little use vote denial cases. (internal quotation marks omitted)); NAACP, 768 F.3d 554 clear test for Section vote denial claims has yet emerge. Daniel Tokaji, The
New Vote Denial: Where Election Reform Meets the Voting Rights Act, S.C. Rev. 689, 709
(2006) (same).
The district court evaluated plaintiffs vote-denial claim relying framework first
articulated our now-vacated NAACP decision. that case, the panel viewed the text
Section and the limited relevant case law requiring proof two elements make out vote
denial claim
First the challenged standard, practice, procedure must impose
discriminatory burden members protected class, meaning that members
the protected class have less opportunity than other members the electorate
participate the political process and elect representatives their choice;
[and]
Vote-denial claims are sometimes referred vote-abridgment claims. See Veasey Abbott, --- F.3d
---, 2016 3923868 *63 (5th Cir. July 20, 2016) (en banc) (Jones, J., dissenting).
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Second that burden must part caused linked social and historical
conditions that have currently produce discrimination against members the
protected class.
NAACP, 768 F.3d 554 (internal citations and quotation marks omitted). This framework
helpful evaluating Section vote-denial claims, but warrants clarification.10
The first step essentially reiterates Section textual requirement that voting standard practice, actionable, must result adverse disparate impact protected class
members opportunity participate the political process. But this formulation cannot
construed suggesting that the existence disparate impact, and itself, sufficient
establish the sort injury that cognizable and remediable under Section See U.S.C.
10301 (a) (b). know this true because showing disproportionate racial impact
alone does not establish per violation Section Wesley Collins, 791 F.2d 1255, 1260
(6th Cir. 1986); see also Gonzalez Arizona, 677 F.3d 383, 405 (9th Cir. 2012) (en banc) [A] challenge based purely showing some relevant statistical disparity between minorities
and whites, without any evidence that the challenged voting qualification causes that disparity,
will rejected. (internal quotation marks and citation omitted)); Frank, 768 F.3d 753
(Section does not condemn voting practice just because has disparate effect
minorities. (If things were that simple, there wouldn have been need for Gingles list nine
non-exclusive factors vote-dilution cases.) Accordingly, proof disparate impact
amounting denial abridgement protected class members right vote that results from
the challenged standard practice necessary satisfy the first element the test, but not
sufficient establish valid Section vote-denial-or-abridgement claim. therefore
emphasize that the first element the Section claim requires proof that the challenged
standard practice causally contributes the alleged discriminatory impact affording
protected group members less opportunity participate the political process. this first element met, the second step comes into play, triggering consideration
the totality circumstances, potentially informed the Senate Factors discussed
The Fourth and Fifth Circuits have used this framework evaluate Section claims, but the Seventh
Circuit has declined adopt it. See League Women Voters N.C. North Carolina, 769 F.3d 224, 240 (4th Cir.
2014); Veasey, 2016 3923868 *17; but see Frank, 768 F.3d 754 (expressing skepticism about the causal
requirement the second step).
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Gingles.11 This inquiry, the Gingles Court explained, designed restore the results test,
whereby challenged law structure albeit not designed maintained for discriminatory
purpose can deemed deny abridge the right vote the law structure has the
effect, interacts with social and historical conditions, causing racial inequality the
opportunity vote.
Gingles, 478 U.S. 47. other words, facially neutral,
nondiscriminatory standard practice that results disparate impact, but would not otherwise actionable impermissible denial abridgment the right vote, becomes actionable impermissible denial abridgment pursuant Section 2(b) where, response the step
two inquiry, disparate impact the opportunity vote shown result not only from
operation the law, but from the interaction the law and social and historical conditions that
have produced discrimination. formulated NAACP, the second step asks whether the alleged disparate impact part caused linked social and historical conditions that have currently produce
discrimination against members the protected class. NAACP, 768 F.3d 554. Read
isolation, this formulation the second step could erroneously understood mean that
alleged disparate impact that linked social and historical conditions makes out Section
violation.
But the second step divorced from the first step requirement causal
contribution the challenged standard practice itself, incompatible with the text
Section and incongruous with Supreme Court precedent. Thus, the second step asks not just
whether social and historical conditions result disparate impact, but whether the
challenged voting standard practice causes the discriminatory impact interacts with
social and historical conditions. See U.S.C. 10301(a) (b) (providing that, actionable, voting standard practice must result (i.e., cause) discriminatory impact the
opportunity protected class members participate the political process see also
Gingles, 478 U.S. 47; League United Latin Am. Citizens, Council No. 4434 Clements,
999 F.2d 831, 867 (5th Cir. 1993) [S]ocioeconomic disparities and history discrimination,
without more are insufficient establish Section causal nexus).
The Gingles Senate Factors derive from Senate Report related the 1982 amendments the Voting
Rights Act and are sometimes used non-statistical proxy vote-dilution cases link disparate impacts
current historical conditions discrimination. See Gingles, 478 U.S. 30, 45.
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The foregoing construction Section not only faithful the statutory text and
legislative history referred Gingles, but also makes practical sense. Conversely, apply
Section invalidate State innocuous voting regulation based solely evidence that social
and historical conditions resulted disparate impact would impermissibly punish state for
the effects private discrimination.
Texas Dep Hous. Cmty. Affairs Inclusive
Communities Project, Inc., 135 Ct. 2507, 2523 (2015) (explaining that that state entities
should not held liable for racial disparities they did not create see also Milliken Bradley,
418 U.S. 717 (1974). therefore clarify that S.B. 238 actionable Section violation
only shown causally contribute, interacts with social and historical conditions that
have produced discrimination, disparate impact African Americans opportunity
participate the political process. See U.S.C. 10301(a) (b). Disparate Impact
The district court paid little attention the disparate impact element the first step,
referring simply its prior Anderson-Burdick analysis conclude that S.B. 238 imposes
burden the rights African Americans vote and assuming that conclusion was sufficient establish that S.B. 238 disparately impacted African Americans manner cognizable under
Section 117, Opinion 98, Page 6220. But this hasty conclusion neglected the first
step our inquiry:
whether S.B. 238 actually disparately impacts African Americans
resulting less opportunity [for African Americans] than other members the electorate
participate the political process. U.S.C. 10301(b). fact, when compared other members the electorate, the statistical evidence the
record clearly establishes that Ohio political processes are equally open African Americans. 2008, 2010, 2012, and 2014, African Americans registered higher percentages than whites,
and both groups registration numbers are statistically indistinguishable every federal election
since 2006. 127-18, Hood Rebuttal, Page 7366 (noting that African-American voter
turnout either exceeds the same white turnout Ohio Moreover, plaintiffs not
dispute the evidence that all voters who used Golden Week 2010, regardless race, were just likely vote 2014 without Golden Week. 98, McCarty Tr., Page 4141
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(explaining that those people who voted eliminated day were less likely vote
2014 than someone who had voted preserved day
This statistical evidence takes even greater significance when consider that the
2014 data reflects registration and voting after S.B. 238 was implemented, but before the
NAACP settlement added additional Sunday voting and additional night and weekend
hours. That is, the statistical evidence shows that African Americans participation was least
equal that white voters 2014 under version S.B. 238 that afforded even less
convenience than the current version. The statistical evidence thus runs directly contrary the
district court speculative conclusion that the current S.B. 238 would have disparate adverse
impact African Americans participation.12 Instead, the statistical evidence rather clearly
shows that S.B. 238 did not result any cognizable, racially disparate impact such that African
Americans were afforded less opportunity than other members the electorate participate
the political process. U.S.C. 10301(b). Plaintiffs offer contrary statistical evidence
showing disparate impact, but merely argue that the relevant expert report contains large
margin error for black registration rates, rendering the probative value this evidence
limited. Appellee Br. 29. Though acknowledge the argument, plaintiffs otherwise
unsubstantiated criticism the reliability the record evidence insufficient meet their
burden establishing that S.B. 238 results racially disparate impact actionable violation Section See Frank, 768 F.3d 754. therefore hold that plaintiffs have failed meet the first step establishing vote
denial abridgement claim under Section the Voting Rights Act. They have failed
establish cognizable disparate impact. Consequently, the second step inquiry regarding the
causal interaction S.B. 238 with social and historical conditions that have produced
discrimination immaterial. Plaintiffs have failed establish violation Section the
Voting Rights Act. The district court contrary conclusion error and must reversed.
The statistical evidence not only exposes the error the district court uncritical borrowing its
burden conclusion from its analysis the equal protection claim, but also further substantiates our assessment
that the burden properly characterized as, most, minimal, not modest.
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IV. CONCLUSION
Accordingly, conclude that S.B. 238, affording abundant and convenient opportunities
for all Ohioans exercise their right vote, well within the constitutionally granted
prerogative and authority the Ohio Legislature regulate state election processes. does not
run afoul the Equal Protection Clause the Voting Rights Act, those laws have been
interpreted and applied voting regulations the most instructive decisions the Supreme
Court. The district court award declaratory and injunctive relief invalidating and enjoining
enforcement S.B. 238 must VACATED and its judgment must be, this extent,
REVERSED.
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_________________
DISSENT
_________________
STRANCH, Circuit Judge, dissenting. The majority opinion today overturns decision which the district court conducted 10-day bench trial considering the testimony more than witnesses, including least experts. ultimately penned 120 pages dismissing all
Plaintiffs challenges S.B. 238 except its elimination Golden Week (reducing early inperson (EIP) voting and eliminating same day registration (SDR)), which enjoined.
reversing this decision, the majority opinion employed incorrect standard review and
created and applied new tests, unadorned precedent, instead those that and our sister
Circuits have found applicable voter denial cases such this one. therefore respectfully
dissent.
Before addressing the governing law light the extensive record before us, need
address the assumptions that frame the majority opinion. This case portrayed improper
intrusion the federal courts overseers and micromanagers, the minutiae state election
processes. (Maj.Op. disagree. Veasey Abbott, --- F.3d ---, 2016 3923868,
*44 (5th Cir. July 20, 2016) (en banc) (Higginson, J., concurring), the Fifth Circuit provides
fitting answer this charge. explains why healthy scrutinize the river State voting
regulations that has flowed the wake Shelby County Holder, 133 Ct. 2612 (2013):
Such scrutiny should seen not heavy-handed judicial rejection legislative priorities, but part process harmonizing those priorities with the fundamental right vote topic
with which over quarter our Constitutions amendments have dealt one way another,
and individual right that cannot compromised because adverse impact falls relatively
few rather than many.
This explanation grows from advances both our social and legal systems. Take the
example states that required literacy tests vote, practice our Supreme Court refused
challenge the wisdom the 1950s, the basis that, Literacy and intelligence are
obviously not synonymous. Illiterate people may intelligent voters. Yet our society where
newspapers, periodicals, books, and other printed matter canvass and debate campaign issues,
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State might conclude that only those who are literate should exercise the franchise. Lassiter
Northampton Cty. Bd. Elections, 360 U.S. 45, (1959). the 1960s, the Court
recognized that [w]hen State exercises power wholly with the domain State interest,
insulated from Federal judicial review. But such insulation not carried over when State power used instrument for circumventing federally protected right. Gomillion Lightfoot,
364 U.S. 339, 347 (1960). 1965, the men and women the American people elected
Congress passed the Voting Rights Act (VRA) expressly providing for oversight state voting
regulations and outlawing literacy tests. Testimony Attorney General Nicholas Katzenbach
during the passage the Act explained why:
Whether there really valid basis for the use literacy tests subject
legitimate question. But not for this reason that the proposed legislation seeks abolish them certain places. Rather, seek abolish these tests because
they have been used those places device discriminate against Negroes.
Our concern today enlarge representative government. solicit the
consent all the governed. increase the number citizens who can vote.
What kind consummate irony would for act that concern and doing reduce the ballot, diminish democracy? would not only ironic;
would intolerable.
Voting Rights: Hearings H.R. 6400 Before the Comm. the Judiciary, 89th Cong.
(1965) (statement Nicholas deB. Katzenbach, Attorney General the United States).
Our social and legal advances society are reflected the Supreme Court decisions
during the 1960s that accepted searching review and scrutiny voting regulation necessary.
The Voting Rights Act was aimed the subtle, well the obvious, state regulations which
have the effect denying citizens their right vote because their race. Allen State Bd.
Elections, 393 U.S. 544, 565 (1969). Following the 1982 amendments the VRA, the Court
explained both the fullness the review required and the reason why such scrutiny essential:
The need for such totality review springs from the demonstrated ingenuity
state and local governments hobbling minority voting power, McCain
Lybrand, 465 U.S. 236, 243 246, (1984), point recognized Congress when
amended the statute 1982: [S]ince the adoption the Voting Rights Act,
[some] jurisdictions have substantially moved from direct, over[t] impediments
the right vote more sophisticated devices that dilute minority voting
strength, Senate Report (discussing 5). modifying Congress thus
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endorsed our view White Regester, 412 U.S. 755 (1973), that whether the
political processes are equally open depends upon searching practical
evaluation the past and present reality, Senate Report (quoting 412 U.S., 766, 770).
Johnson Grandy, 512 U.S. 997, 1018 (1994). numerous cases recognize, those who seek discriminate against segment the
population not trumpet their intentions not publicly. The 2006 amendments
the VRA identified our progress well this continuing problem, noting that vestiges
discrimination voting continue exist demonstrated second generation barriers
constructed prevent minority voters from fully participating the electoral process.
H.R. Rep. No. 109-478, (2006), reprinted 2006 U.S.C.C.A.N. 618.
While our case law has struggled articulate how judges can practically and should
appropriately review state laws governing the fundamental right vote, have steadily
progressed beyond standard that refused review the wisdom State choice employ
procedures, such literacy tests, that function disenfranchise selected voters. not think
that federal intrusion micromanaging evaluate election procedures determine
discrimination lurks obvious rule subtle detail. Our recent jurisprudence does not
shy away from the scrutiny that essential protection the fundamental right vote, though recognizes the difficulty the task. Rather than applying any litmus test that would neatly
separate valid from invalid restrictions, concluded that court must identify and evaluate the
interests put forward the State justifications for the burden imposed its rule, and then
make the hard judgment that our adversary system demands. Crawford Marion County
Election Bd., 553 U.S. 181, 190 (2008). turn the case before explain why view
the hard judgment here differs from that colleagues. DISTRICT COURT RECORD AND DECISION begin with the extensive record made the district court. The court evaluated evidence
provided both expert and lay witnesses over ten day trial and found that the reduction
overall time vote w[ould] burden the right vote African Americans, who use EIP voting
significantly more than other voters (R. 117, PageID 6161), specifically during Golden Week.
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(id. 6160) ultimately held that S.B. 238 elimination Golden Week imposes modest
burden which the Court defines more than minimal but less than significant burden
the right vote African Americans. (R. 117, PageID 6156 57) For example, expert
analysis individual level data based census blocks within three the largest counties
Ohio which contain nearly two-fifths the state minority population found that the rate
which African Americans used EIP voting 2010 and 2014 was slightly higher than the white
rate, (id. 6159) and that the usage rates Golden week specifically were far higher among
African Americans than among whites both 2008 and 2012. (Id.) The Golden Week usage
rates 2008 for 100% homogeneous black census blocks was 3.514 times higher than 100%
white blocks. (Id.) 2012, the Golden Week usage rate was 5.186 times higher for
homogeneous black blocks. (Id.) The district court also noted the expert evidence that African
Americans are more likely subject economic, transportation, time, and childcare
constraints that increase the cost voting. (Id. 6162) [R]elative whites, the district
court found, African Americans Ohio are less likely work professional and managerial
jobs; are more likely work service and sales jobs, including hourly wage jobs; have lower
incomes; are nearly three times more likely live poverty; and are more than two and half
times more likely live neighborhood which more than 20% the residents are
poverty. (Id.)
The court review the record evidence evincing these disparities led conclude
that the cost voting therefore generally higher for African Americans, they
are less likely able take time off work, find childcare, and secure
reliable transportation the polls. Moreover, greater levels transience may
result more frequent changes address, which turn requires individuals
update their registration more frequently. SDR [same-day registration] provided opportunity and vote the same time. such, African Americans
disproportionately make the group that benefits the most from SDR, and the
elimination that opportunity burdens their right vote.
(Id. PageID 6163 64) The district court relied this evidence and numerous other expert
reports and testimony from lay witnesses that found credible support its conclusions that the
reduction EIP voting time, and the elimination Golden Week specifically, imposes modest
burden the right vote African Americans citizens Ohio.
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Ohio Democratic Party, al. Husted, al. great deal work underlies the district court conclusion this important subject.
Both that work and the substantial support found the record stand opposition the majority
opinion blithe assertion that easy vote Ohio. Very easy, actually. (Maj.Op. 10)
This assertion problematic for another reason the district court finding that Ohio law
imposes some burden the right African Americans vote Ohio indicates that how
easy vote under Ohio new regime bears some small but definable relationship the
color your skin. This burden the fact-bound conclusion that address appeal. begin analysis the appropriate tests and application the facts from the record
with the equal protection claim.
II. EQUAL PROTECTION
This analysis must start with the correct standard review. The majority argues that
novo review applies the district court conclusion that elimination Golden Week imposes
modest burden the right African American vote. (Maj. Op. 10) Neither our
precedent nor that our sister Circuits supports this argument. Obama for America Husted, 697 F.3d 423, 431 (6th Cir. 2012) (OFA), applied
clear error review district court determination that Ohio law restricting early in-person
voting placed burden Plaintiffs [that] was particularly high because their members,
supporters, and constituents represent large percentage those who participated early
voting past elections. held that [b]ased the evidence the record, this conclusion
was not clearly erroneous. Id. OFA involved appeal from district court grant
preliminary injunction and, accordingly, reviewed the court legal conclusions novo and
its factual determinations for clear error. See id. 428. The same standard applies where,
here, party appeals following bench trial. See Pressman Franklin Nat Bank, 384 F.3d
182, 185 (6th Cir. 2004). Consequently, clear error review must apply the district
court finding that the elimination Golden Week imposes more than minimal but less than
significant burden African Americans right vote Ohio. See OFA, 697 F.3d 431; see
also Ohio State Conference the NAACP Husted, 768 F.3d 524, 532 (6th Cir. 2014)
[hereinafter NAACP (reviewing for clear error district court determination that reductions
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early voting would disproportionately and negatively impact African Americans), vacated
other grounds No. 14-3877, 2014 10384647, (6th Cir. Oct. 2014).
The majority opinion cites four cases support its proposed substitution novo
review. None those cases governs here. The first, Bright Gallia County, 753 F.3d 639, 652
(6th Cir. 2014), was appeal from district court dismissal claim pursuant Federal
Rule Civil Procedure 12(b)(6), which procedural posture that calls for novo appellate
review. Bright was not voting case, even election law case, and its procedural posture
makes its standard inapplicable here. Thus, does not stand for the proposition that the district
court post-trial, fact-bound finding regarding the burden S.B. 238 places African
Americans right vote subject novo review. The remaining three cases, Williams
Mehra, 186 F.3d 685, 689 (6th Cir. 1999) (en banc); Libertarian Party Ohio Blackwell,
462 F.3d 579, 583 (6th Cir. 2006), and Green Party Tennessee Hargett, 767 F.3d 533, 542
(6th Cir. 2014), are similarly inapposite. These cases were appeals from summary judgment
orders rendering them subject novo appellate review. Libertarian Party and Green Party,
moreover, concerned associational rights specifically, ballot access not the right vote.
See Libertarian Party, 462 F.3d 585 [W]e are cognizant that the state laws place burdens
two different, although overlapping, kinds rights the right individuals associate for the
advancement political beliefs and the right qualified voters, regardless their political
persuasion, cast their votes effectively. (quoting Williams Rhodes, 393 U.S. 23,
(1968)); Green Party, 767 F.3d 545 (recognizing that while [a]ssociational rights and voting
rights are closely connected [s]till, states may impose reasonable restrictions ballot
access Libertarian Party firmly grounded its burden analysis the associational rights
context, explaining that [t]he key factor determining the level scrutiny apply the
importance the associational right burdened[,] 462 F.3d 587, and Green Party turn
relied that analysis, see 767 F.3d 547 (citing id.).
None the cases cited the majority dictates our standard review here. Rather,
OFA (and NAACP), are limited reviewing for clear error the district court finding based record evidence that S.B. 238 elimination Golden Week imposes modest burden
which the Court defines more than minimal but less than significant burden the right
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vote African Americans. (R. 117, PageID 6156 57). Our sister Circuits agree. The Fourth
and Fifth Circuits have applied clear error review the findings made district courts
similar challenges under the Fourteenth Amendment and Section the Voting Rights Act.1
See N.C. State Conference NAACP McCrory, --- F.3d ---, 2016 4053033, (4th Cir.
July 29, 2016) (applying clear error review the ultimate factual question legislature
discriminatory motivation); Veasey Abbott, 2016 3923868, (applying clear error
review district court finding that Texas voter law violated the Fourteenth Amendment
and Section the Voting Rights Act). reviewing the district court findings for clear
error, may not substitute our judgment for that the district court and must uphold the
[district] court account the evidence plausible light the record viewed its
entirety. Lee Wiley, 789 F.3d 673, 680 (6th Cir. 2015) (alteration original) (quoting
Pledger United States, 236 F.3d 315, 320 (6th Cir. 2000)).
Applying the correct standard reveals that the district court finding modest burden
under the Anderson-Burdick test more than plausible well-supported the record. (See 117, PageID 6153 70) The district court extensively reviewed and relied upon expert and
anecdotal evidence the record before concluding that this evidence the effects the
reduction EIP voting days and the elimination SDR demonstrates that S.B. 238 imposes
modest, well disproportionate, burden African Americans right vote. (Id. arguing under the standard proposes, the majority seeks rely voting systems
other states important contextual basis (Maj.Op. 12) for determining whether the
burden S.B. 238 falls disproportionately African Americans. But the usefulness that
contextual information depends whether the many variable methods for voting each system
line up. Certain types voting processes, like early voting, do[] not necessarily play the same
role all jurisdictions ensuring that certain groups voters are actually able vote and
result, the same law may impose significant burden one state and only minimal burden
the other. NAACP, 768 F.3d 546. Simply stating that Ohio early voting system one addressing claim similar our own, the Seventh Circuit was not specific about the standard
review, instead faulting the district court for failing make adequate findings then resolving the case
indistinguishable from Crawford and thus controlled it. See Frank Walker, 768 F.3d 744, 751 (7th Cir. 2014).
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the more generous the nation (Maj.Op. 11) provides little helpful information. fails, for
example, account for the rate which early voting actually used different populations,
let alone how the voting options other states might impact the comparison. most respects,
this issue local and dependent the particular circumstances Ohio law and its population.
Analysis the burden that S.B. 238 places Ohio voters thus necessarily entails engaging with
the factual record. The majority opinion fails perform that essential work.
The majority opinion next seeks recast African American voters reliance EIP and
SDR mere personal preference. (Maj.Op. 13) This based surmise, not record
evidence. So, too, its conclusory assertion that [a]t worst, the elimination Golden Week
represents withdrawal contraction just one many conveniences that have generously
facilitated voting participation Ohio. (Id. 10) The record this case shows that the State Ohio instituted fault early voting 2005 not generous convenience but necessary
tool remedy the manifold problems experienced during the 2004 election, (R. 117, PageID
6156) including extremely long lines the polls and other election administration problems.
(Id. 6144) the Fourth Circuit recently concluded similar vote denial case and this
record supports, socioeconomic disparities establish that mere preference led African
Americans disproportionately use early voting[ and] same-day registration[.] McCrory, 2016 4053033, *17. Registration and voting tools may simple preference for many
white [voters], the Fourth Circuit recognized, but for many African Americans they are
necessity. Id.
The majority opinion again relies assumptions about voting preferences conclude
that the record evidence that African Americans use early voting higher rates than other voters
may make them theoretically disadvantaged (Maj.Op. 14) reductions early voting.
There nothing theoretical about the disadvantage found the district court.
Using
extensive record, the district court determined that S.B. 238 changes early voting and same
day voter registration impose modest and disproportionate burden African Americans right vote. The majority points clear error the district court the record. would affirm
its finding because satisfies the correct standard review.
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The majority opinion, however, rejects the district court decision that S.B. 238 imposes modest burden and, based its chosen standard novo review, concludes that
minimal burden. (Maj.Op. 13) Building that error, applies deferential standard
review akin rational basis and presumes that Crawford both applies and resolves this case.
(Maj.Op. 15)
This series conclusions relies standards review not applicable this case. First,
Crawford arose different context because was appeal from summary judgment order,
not bench trial. Second, the case factually distinct essential ways because there the Court
held only that the lower courts correctly concluded that the evidence the record [was] not
sufficient support facial attack the validity the entire statute under the constitutional
Anderson-Burdick framework. Veasey Abbott, 2016 3923868, *41 (Higginson, J.,
concurring) (alterations original) (quoting Crawford, 553 U.S. 189). Crawford concerned
facial challenge voter identification law, but the summary judgment record that case
(1) did not quantify the voters without qualifying ID, (2) provided concrete evidence the
burden imposed voters who currently lack photo identification, and (3) said virtually
nothing about the difficulties faced indigent voters. Id. (alteration original) (quoting
Crawford, 553 U.S. 200 01). other words, [t]he petitioners Crawford had not presented
any evidence the record that even estimated the number individuals who lacked
identification cards.
Nor did the affidavits depositions the record lower-income
individuals elderly voters Crawford substantiate that they fact faced difficulties
obtaining identification cards. NAACP, 768 F.3d 544 (citation omitted). Thus, the basis the record that ha[d] been made th[at] litigation, the Court could not conclude that the
statute impose[d] excessively burdensome requirements. Crawford, 553 U.S. 202.
Here, contrast, the record replete with specific evidence supporting the plaintiffs
claims and the district court conclusion regarding the amount burden imposed the
elimination Golden Week. (See 117, PageID 6153 70) Over the course ten day bench
trial, the district court weighed evidence from eight expert witnesses and nineteen lay witnesses,
from statistical analyses testimony Get Out the Vote efforts, ultimately making
determinations credibility that led its conclusion that S.B. 238 disproportionately burdens
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African Americans. (See id. 6128 44) The record this case provides ample evidence
which the district court could quantify the magnitude the burden African American
voters. Crawford, 553 U.S. 200. would also affirm the district court application
Anderson-Burdick balancing and the court resulting conclusion that the State has failed
present sufficient evidence show that its specific (as opposed abstract) interests justify the
burden that eliminating Golden Week imposes African American voters. (See 117, PageID
6170 79)
The majority opinion argues that the overarching question with respect plaintiffs equal
protection claim this case whether Ohio may experiment with expanding and contracting
voting regulations. course may. The question whether may way that
disparately impacts protected group without sufficient justification relevant and legitimate
state interest. Because agree with the district court that Ohio revised S.B. 238 improperly
burdens the right vote African American citizens Ohio and constitutes violation
equal protection, respectfully dissent.
III. THE VOTING RIGHTS ACT
The majority acknowledges the test for vote denial claims under Section the VRA
that laid out two years ago NAACP but suggests that warrants clarification. (Maj.Op. 23) This clarification, however, leads apply inappropriately strict threshold for
Section claims. would remain faithful our original NAACP framework, adopted and
applied the Fourth and Fifth Circuits, and correctly applied the district court.
NAACP concerned plaintiff request for preliminary injunction advance the
2014 election, and was vacated moot following that election. See Ohio State Conference
the NAACP Husted, No. 14-3877, 2014 10384647, (6th Cir. Oct. 2014).
Nonetheless, remains persuasive authority, that has been subsequently adopted another
panel this court. See Mich. State Philip Randolph Inst. Johnson, --- F.3d ---, 2016
4376429, n.2 (6th Cir. Aug. 17, 2016). Drawing the text Section itself and the
guidance Thornburg Gingles, 478 U.S. 30, (1986), NAACP laid out two-part
framework for assessing vote-denial claims: first, the challenged standard, practice,
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procedure must impose discriminatory burden members protected class, meaning that
members the protected class have less opportunity than other members the electorate
participate the political process and elect representatives their choice, and second, that
the burden must part caused linked social and historical conditions that have
currently produce discrimination against members the protected class. NAACP, 768 F.3d
544 (quotation marks omitted). NAACP, this court also explicitly found the nine factors laid
out Gingles relevant the second part this analysis and encouraged their
consideration. Id.
Both the Fifth Circuit sitting banc and the Fourth Circuit have adopted and applied our
NAACP test full. See Veasey, 2016 3923868, *17 now adopt the two part
framework employed the Fourth and Sixth Circuits evaluate Section results claims.
League Women Voters N.C. North Carolina, 769 F.3d 224, 240 (4th Cir. 2014)
(adopting Sixth Circuit test for Section vote-denial claims). These courts acknowledged that
Section jurisprudence had primarily developed the vote-dilution context and clear standard
for vote-denial claims had not previously been settled. Then both explicitly adopted NAACP
two-part framework and incorporated the Gingles factors. See Veasey, 2016 3923868,
*18 did the Fourth and Sixth Circuits, conclude that the Gingles factors should used help determine whether there sufficient causal link between the disparate burden imposed
and social and historical conditions produced discrimination. League Women Voters
N.C., 769 F.3d 240 These [Gingles] factors may shed light whether the two elements
Section claim are met.
The Ninth and Eleventh Circuits have also expressed approval for considering the
Gingles factors the vote-denial context. See, e.g., Gonzalez Arizona, 677 F.3d 383, 405
(9th Cir. 2012) (en banc) (explaining that courts should consider the Gingles factors votedenial cases); Johnson Governor Fla., 405 F.3d 1214, 1227 n.26 (11th Cir. 2005)
(recognizing that the Gingles factors apply vote-denial cases); Smith Salt River Project
Agric. Improvement Power Dist., 109 F.3d 586, 596 n.8 (9th Cir. 1997) (rejecting the
argument that the Gingles factors apply only vote dilution claims
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The district court acknowledged that the vacated opinion NAACP was not binding,
but that nonetheless, was free find the reasoning therein persuasive (R. 117, PageID
6152.) agree. The two-part framework articulated NAACP both reasonable and
appropriate use when evaluating Section vote-denial claim, and the district court did not
err its decision here, its application.
The Supreme Court has repeatedly instructed that [t]he Voting Rights Act was aimed
the subtle, well the obvious, state regulations which have the effect denying citizens their
right vote because their race, Allen State Bd. Elections, 393 U.S. 544, 565 (1969), and
should interpreted manner that provides the broadest possible scope combating
racial discrimination, Chisom Roemer, 501 U.S. 380, 403 (1991) (quoting Allen, 393 U.S.
567). The essence claim that certain electoral law, practice, structure interacts
with social and historical conditions cause inequality the opportunities enjoyed black
and white voters elect their preferred representatives. Gingles, 478 U.S. 47.
The Senate Report accompanying the 1982 amendments the VRA emphasize[d]
repeatedly that the right question Section analysis whether result the
challenged practice structure plaintiffs not have equal opportunity participate the
political processes and elect candidates their choice. Id. (quoting Rep. No. 97417, (1982) [hereinafter Rep.], reprinted 1982 U.S.C.C.A.N. 177, 206). Answering
this question requires court assess the impact the contested structure practice
minority electoral opportunities the basis objective factors. Gingles, 478 U.S.
(citing Rep. 27, 1982 U.S.C.C.A.N. 205). Gingles noted set enumerated factors that
will often pertinent certain types violations, particularly vote dilution claims, but
neither the Report nor the Court have limited their application such. Gingles, 478 U.S. 45. agree with our prior precedent and the Fourth, Fifth, Ninth and Eleventh Circuits that the
Gingles factors can and should used help determine whether there sufficient causal
link between the disparate burden imposed and social and historical conditions produced
discrimination. Veasey, 2016 3923868, *19.
Rather than following the Supreme Court guidance interpret the VRA with the
broadest possible scope, 501 U.S. 403, the majority adds the first part NAACP narrow
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threshold inquiry, thereby allowing brush aside the district court analysis the Gingles
factors the second part the NAACP framework. The majority creates test that requires
threshold step proof that the challenged standard practice causally contributes the alleged
discriminatory impact. (Maj.Op. 23) This extra requirement unnecessary. the text
Section states, voting standard practice may only invalidated under Section
results less opportunity for members protected class participate the political process
than others. See U.S.C. 10301. The existing test true this text and contains the
necessary causal linkage between electoral regulation and its interaction with social and
historical conditions.
The second part the NAACP analysis addresses whether the law
interacts with social and historical conditions cause disparate burden. See Veasey, 2016
3923868, *17. The Gingles factors provide context and guidance for whether the causal link
between the disparate burden and the social and historical conditions produced discrimination sufficient show Section violation. See id. *18. The inquiry flexible [and] factintensive, and requires examination the record evidence. Gingles, 478 U.S. 46. Both
parts the proper framework were mirrored the district court application below, and the
Fourth and Fifth Circuits when they adopted our framework. See Veasey, 2016 3923868,
*21 *33; League Women Voters N.C., 769 F.3d 241 Clearly, eye toward past
practices part and parcel the totality the circumstances. finding that S.B. 238 imposes disparate burden African Americans, the district
court referred the evidence used its Equal Protection Clause analysis showing that the law
results less opportunity for African Americans participate the political process than
other voters. (R. 117, PageID 6220) This evidence, based expert analysis well lay
witness testimony, showed that African Americans utilize EIP voting higher rates, face higher
costs voting, and disproportionately make the group that benefits the most from SDR. (Id. 6158 64) The district court found that together, the reduction EIP and the elimination
SDR would impose modest, well disproportionate, burden African Americans right vote. (Id. 6164)
The majority dismisses this conclusion hasty, (Maj.Op. 25) and once again refuses accept the factual findings made the district court. Instead, the majority selects two items
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from the record support its conclusion that the political process Ohio equally open
African Americans, (id.) including reference rebuttal report Defense expert Dr. Hood. doing, the majority ignores the credibility determinations made the district court,
particularly regarding the statistical evidence provided Plaintiffs expert Dr. Timberlake
which strongly suggested higher usage rates EIP and SDR African Americans. The district
court, fact finder, weighed the evidence provided these experts, and others, ultimately
determining that Timberlake conclusions were credible (R. 117, PageID 6132) and affording
little weight opinions Hood report because its reliance statements declarants
selected and questioned defense counsel who Hood never personally questioned and whose
declarations did not confirm with hard data. (Id. 6138)
The majority says that the statistical evidence runs directly contrary (Maj.Op. 26)
the district court conclusions, and that such evidence rather clearly shows (id.) that S.B. 238
does not have disparate impact African American participation. The majority does not,
however, provide support the record for what statistical evidence relies for these
statements, precisely how they run contrary the district court conclusions.
While
dismissing the district court conclusion that S.B. 238 would have disparate impact African
Americans speculative, the majority fails account for the speculation its own
substitution. would affirm the district court determination that the record reflects the
imposition disproportionate burden African Americans right vote. would also hold that the district court analysis the second step the Section
framework, including its application the Gingles factors, was proper. The court found that the
plaintiffs had established factors one, two, three, five, and nine, and that factors five and nine
were particularly relevant. (See 117, PageID 6224 28) Factor five assesses [t]he extent
which members the minority group bear the effects discrimination areas such
education, employment and health, which hinder their ability participate effectively the
political process. Gingles, 478 U.S. 45. The district court determined that the plaintiffs had
adduced evidence indicating that African Americans the state Ohio bear the effects
discrimination areas such employment and education. (R. 117, PageID 6226) coming this conclusion, the court weighed evidence indicating that, relative whites, African
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Americans are less likely work professional and managerial jobs, are more likely work service and sales jobs, including hourly wage jobs; have lower incomes; are nearly three times
more likely live poverty and are more likely live neighborhoods where others live
poverty. (R. 117, PageID 6162) The court found this evidence, based Timberlake expert
testimony and considered against Hood report, credible. (See id. 6134, 6163, 6226)
Factor nine assesses the tenuousness the policies underlying the law.
Gingles,
478 U.S. 45. The district court determined that the justifications offered support the
elimination Golden Week, including preventing voter fraud confusion, reducing costs and
administrative burdens, and increasing voter confidence, were either not supported evidence did not withstand logical scrutiny. (R. 117, PageID 6228) The State asserted interests are
legitimate, and Ohio entitled make policy choices about when and how will address
various priorities. Veasey, 2016 3923868, *31; see also Crawford, 553 U.S. 191. But
where the district court has credited testimony showing very limited minimal evidence
actually connect these justifications with the enacted law, the assertion even legitimate
interests may not automatically win the day. (R. 117, PageID 6172, 6174) Determining whether
the political process equally open all voters requires searching practical evaluation
the past and present reality and functional view the political process. Gingles, 478 U.S. 45. The district court performed such inquiry.
Based its findings that S.B. 238 imposes disproportionate burden African
Americans, and that the law was linked social and historical conditions discrimination that
diminish the ability African Americans participate the political process, the district court
concluded that S.B. 238 has discriminatory effect violation Section the Voting Rights
Act. would hold that the district court properly applied our preexisting test for Section
IV. CONCLUSION would affirm the very limited injunction issued the district court the basis that
S.B. 238 elimination Golden Week, reducing early in-person voting and same day
registration, violation equal protection and Section the Voting Rights Act 1965.
The district court applied the correct constitutional and statutory tests and its decision fully
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supported the extensive record resulting from its ten day bench trial. The charge that this
appeal and apparently many others intrude upon the right the