*1 $75,000 аward to remit the not err in Lexis’s motion district court did The . in was not error the award Lexis’s motion to remit denying damages. That $75,000 compensatory of in however, ap damages, are not Punitive not too far from awards amount was afield provides in case. The FCRA propriate this wages alleged lost in cases. similar Smith’s for damages only of punitive for an award that the $2,640, amounted to which means of the statute. U.S.C. violations willful damages totaled remaining non-economic Bach, 1681n(a)(2); § see also Fed. allocate $72,360. jury The did not at least the record contains Appx. at 364. Because damages among wages, lost of amount willfulness, of of no award evidence distress, reputation. harm emotional damages cannot stand. punitive Solutions, Screening Smith v. LexisNexis judgment is accord- court’s The district (E.D.Mich. Inc., F.Supp.3d 890-91 regarding willfulness ingly reversed 2015) (order motion for a renewed denying judgment is af- damages, and punitive law). argues as matter of Lexis judgment a grounds. all The case is firmed on other clearly is exces $72,360 that the amount entry an order consistent remanded other, light similar cases. Lexis sive opinion. with this other the awards cases breaks down multiplies per-weék into amounts and it took
those amounts the four weeks report credit
Lexis correct Smith’s the excessiveness order demonstrate OHIO FOR NORTHEAST COALITION Although in this the award case.2 HOMELESS; Coali THE Columbus $72,360 might higher per-week be a Homeless; Ohio for the Demo tion many amount than the awards Party, Plaintiffs-Appel cratic cites, juries required are not cases Lexis lees/Cross-Appellants, damages only based compensatory award suffering. Fur on the extent of temporal
thermore, above, am as was stated there capacity HUSTED, in his as Jon official A ple evidence Smith’s distress. record Secretary Ohio, Defen the State is allowed interfere with district court dant-Appellant/Cross-Appellee, when, “only reviewing after jury’s award Ohio, Intervenor- State light all most favorable the evidence Appellant/Cross- con prevailing party, to the [the court] Appellee. excessive; clearly verdict vinced Nos. 16-3603/3691 bias, passion, prejudice; or from resulted to shock inadequate or as is so excessive Appeals, United Court States Trim., court.” Am. conscience Sixth Circuit. Corp., 383 F.3d v. Oracle L.L.C. August Argued: (6th Cir.2004). very This is deferential September Decided and Filed: standard, juries as have broad discretion Rehearing Denied En Banc severity damages to set amounts. October 2016.* woes, through the extent of Smith’s viewed lens, appropriately demon deferential court’s denial of strate that district * fact, rehearing Judge grant Keith would Lexis's FCRA violation was the but- Judge in his unemployment for six stated dissent. Batchel- for cause of Smith's reasons weeks, her the motion for recusal. der not four. denies
OPINION BOGGS, Judge. Circuit Bills 205 Ohio enacted Senate changes to Ohio Among other (1) law, county they required election ballots of reject boards of elections provisional absentee voters envelopes or affirma- whose identification forms, contain an ad- respectively, tion perfectly dress or birthdate does (2) records; voting reduced the match days for post-election absentee number Carney, P. Office Stephen ARGUED: identification-envelope er- voters to cure General, Columbus, Attorney the Ohio rors, val- present voters to provisional Ohio, Appellants/Cross-Appellees. for Su- seven; (3) identification, from ten to id Chandra, Firm, Law bodh The Chandra poll can ways in which workers limited Cleveland, Ohio, LLC, Appel- in-person voters. The district assist held, ON BRIEF: Ste- lees/Cross-Appellants. an impose all provisions three Carney, Murphy, Eric E. Michael phen right P. to vote and undue burden Richardson, Hendershot, minority L. Zach- Ryan disparately impact voters. J. Keller, Attorney ery P. Office plaintiffs’ affirm the undue-burden We Columbus, Ohio, General, Appel- requirement it to the only claim as relates Chandra, lants/Cross-Appellees. Subodh in-person Bill 205 that imposed Senate Firm, Sandhya Gupta, The Chandra Law complete the mail-in absentee voters LLC, Cleveland, Ohio, Gentry, H. Caroline on the identi- birthdate fields address and Crawford, Porter, Wright, P. Morris Ana precision. envelope with technical fication LLP, Ohio, Dayton, J. & Arthus Donald finding reverse the district court’s We Colombo, Corey McTigue McTigue, Jr. bur- provisions the other create undue Colombo, Columbus, Ohio, Mcginnis & the district court’s den. also reverse We Colombo, Corey McTigue, J. Jr. Donald im- disparately finding provisions that the McTigue Clinger, & Colombo Derek S. affirm the district pact minority voters. We Columbus, Ohio, LLC, *7 Appel- for holdings. court’s other Readier, A. lees/Cross-Appellants. Chad Columbus, Ohio, Day, Michael A. Jones Background I. Dick, Carvin, Anthony Stephen J. A. Va- Day on queue not Election Ohioans need D.C., den, Washington, for Day, Jones to vote. The State right the exercise Amicus Curiae. and, accepts by mail absentee ballots days, in designated early-voting person. KEITH, ROGERS, BOGGS, and Before: 3509.05(A). 3509.01(B), §§ Ohio Rev. Code Judges. Circuit that he or she is A who declares voter ap- name registered but whose does BOGGS, J., opinion the eligible delivered precinct’s on a list pear J., ROGERS, joined. ballot on in-person provisional court which can an cast 638-68), KEITH, day Day. a (pp. early-voting delivered an Election J. either 3505.181(A)(1),(B)(2). § dissenting opinion. Id. separate Assembly any In to “eliminate Ohio General en- chance a voter’s (SB 205) may rejected acted Senate Bills 205 and 216 absentee ballot for the 216), (SB amending provi- state election sole reason” that the voter failed to com- plete that govern provisional absentee and those fields. Before SB 205 into went sions effect, voting. rejected The laws have been effect since if absentee ballots could be early June envelope “accompanying the identification
an absent voter’s ballot or absent voter’s A. presidential insufficient,” SB 205 ballot if [was] signatures correspond with “d[id] eligible can for Any apply voter an ab- person’s registration signature,” or if the § sentee ballot. Ohio Rev. Code 3509.03. provide voter failed to identification. Ohio Completing application pro- involves § Rev. Code 3509.07 name, signature, viding registration a ad- Secretary a directive to circulated dress, birth, date a form of identifi- county stating of elections boards that the 3509.03(A)-(E). § Acceptable cation. Id. envelope must a identification include identification includes: a driver’s license proper signature name ahd voter number; digits four of a last Social corresponding ballot be counted. number; Security or a copy a valid list, ID, ID, utility photo military valid to that it current SB two fields added bill, statement, check, government specifies envelope bank identification an paycheck, or government “incomplete” accurately other document without filled noticé) (excluding registration showing birthdate2 and address fields. Ohio Rev. 3509.06(D)(3). § “incomplete” the voter’s name Id. An and address. Code 3509.03(E). § acceptable envelope The same are results identification bal- casting rejection “providets] forms identification when an ab- lot’s the voter unless 3509.05(A). § Applicants Id. necessary sentee ballot. information to the board of request writing pre- can and receive an absentee ballot on a form elections through by providing mailing the mail of state.” Id. secretary scribed 3509.03(1). 3509.06(D)(3)(b). § § Id. address. changes Ohio voting, in-person mail-in and 205 made two other
When some SB an complete absentee voters must an election law that are at “identi- issue. When error, envelope” along fication their ballots.1 with absentee ballot contains envelope gives voter notice of The identification contains fields board elections name, signature, required information for the voting the voter’s res- the additional idence, county to be 205 reduced the and birthdate. The boards ballot counted. SB may preprint of elections the voter’s name for voters corrections window submit days Day from envelopes and address the identification the ten after Election 3509.04(B).- Day. days § of mail-in after Election See voters. Id. the seven addition, prevents Secretary of State’s 2015 election manual ibid. In SB election providing officials from “assistance” vot- the boards to do so order “instruct[s]” *8 day registration give early in-person in the 1. Some Ohio counties match the month and option database, voters the to cast their ballоts on a registration if the birthdate in the direct-recording electronic-voting machine. 1, 1800, January majority or if a database required Those who do so to elections, are not also find that of the four-member board complete envelope. the identification address, name, signa- the voter has met the ture, requirements. Ohio and identification requirement 2. The birthdate is satisfied if the 3509.06(D)(3)(a)(iii). § Rev. Code provides day of birth voter a month and n - to, reject provisional boards ballots exceptions of who tions ers with the voters they to affirmation lacked “the are “unable whose statements “[d]eclare[ ]” “blindness, to printed mark” their ballot due dis- name.” voter’s ability, illiteracy.” § 3505.24. Id. A voter valid provisional without identi- of elec- may fication to board return B. SB tions ballot complete to cure otherwise “pro- a complete Provisional voters must number, a by providing driver’s license form. visional ballot affirmation” Ohio Rev. number, last card state identification implementa- § 3505.182. Before the Code digits of the Social Securi- four individual’s provisional ballot was tion SB a ID, number, military or a ty photo or a presented if the voter identi- counted valid bill, copy utility of a bank state- current the affirmation form fication and included ment, check, paycheck, or oth- government name, signature, a state- voter’s reg- government (excluding a er document eligibility. Rev. Code Ohio ment notice) showing the name istration voter’s 3505.183(B)(1) § back of The Rev. Code address. Ohio registration ap- a separate form contained 3505.181(B)(7)(a). § 216 reduced the SB plication. Provisional voters whose ballots doing days for so from the ten after period register rejected for failure to but were days Day Election to the after Elec- seven reg- completed application became who Day. Compare Ohio Rev. tion Code for the next election. istered 3505.181(B)(8) (2013), § with Ohio Rev. and address to 216 added birthdate4 SB 3505.181(B)(7). § Code pro- affirmation-form fields .the list accurately complete. must visional C, History Procedural 3505.183(B)(1)(a). § The Ohio Rev. Code the Northeast Ohio Coalition regis- form as a affirmation now doubles (NEOCH) Homeless for the Ser- provision- to application, applicable tration Employees Union sued vice International rejected for al voters whose ballots Secretary enjoin the enforcement 3505.182(F). § register. Id. failure provisional-ballot voter-identification “printed” also before added word bill Although perhaps rich source mate- laws.5 re- “name” the list affirmation-form civil-procedure prickly hypotheti- rial for quirements. Compare id. cal, many case’s twists and turns are 3505.183(B)(1)(a), § with Ohio Rev. Code here. it to unnecessary chronicle Suffice 3505.183(B)(1)(a)(2013). § appears This say, proceeding was still in 2010 litigation clarifiеd, modified, exist- have rather than parties when the entered consent decree. 2008, 2010, ing and 2012 law. Between the elections, counties have four- rejected eighty-eight Ohio’s general most counties responsible for person boards administrat- for failure to include a provisional ballots Furthermore, re- ing a 2012 local elections. The decree “printed” name. di- inform Secretary elections Secretary quired rective from the instructed elec- suit, provi- days plaintiffs’ tiling requirement Ohio The identification 5.Within for absentee sional voters similar See R. Civ. P. intervened as a defendant. Fed. Rev, 3505.18(A). consent, § 24(b). Ohio Code voters. See parties’ With the (ODP) Party intervened as a Democratic requirement provisional 4. The birthdate after, plaintiff in 2008. Soon Columbus exceptions for the voters has similar to those (CCH) was added Coalition for Homeless requirement for absentee voters. See Ohio plaintiff. as a 3505.183(B)(3)(e). § Rev. Code *9 provisional ballots boards the of Amendment’s Due count Process Clause of a registered fundamentally voters whose affirmation forms voting system unfair and name, signa- included an verified procedural accurate of process; violation claims due ture, of digits and the last four the voter’s the Equal under Fourteenth Amendment’s Security It burden, Social also number. of an listed Clause lack Protection undue grounds provisional standards, on ballots' which could of arbitrary uniform and and “pro- not to' rejected, disparate treatment; be failure including a of claim intentional of ... vide a date birth” or “address tied in violation discrimination of the Four- house, dwelling to a apartment other Amendments; teenth [if] and Fifteenth lit- and immaterial-error, the voter that he or eracy-test, indicated she resides and vote-de- non-building Secretary at a The location.”6 nial Voting Rights under the Act claims (VRA). give required was the court notice changes to “supersede” the law that would presided The a court over bench trial in
the decree. 2016, Oyer March course of twelve the " The for the decree was effect it the days, testimony heard more than Although origi- and 2012 it elections. was twenty board of elections officials from nally expire set June the counties, different two members the court, motion, plaintiffs’ extended it Assembly, Ohio General the Assistant Sec- through September the' 2016. In end (who retary of also as “head State serves Secretary the court informed elections”), and two of the members rejection requirement that SB 216’s for Ohio Association Election Officials fields, imperfect and address birthdate (OAEO), which includes members three-day cure-period, in the reduction every county elections boards Ohio “automatically amended” the decree. representation has equal from the ma- two jоr addition, In parties. record includes plaintiffs
The a moved leave file provisional declarations absentee and See supplemental complaint. Fed. R. Civ. rejected for voters whose ballots were 15(d). P. They petitioned per- the court to Several, birthdate and address errors. manently enjoin Secretary imple- from example, wrote the current date instead menting portions of SB 205 and SB transposed their birthdates. One the loca- opposed. August The.defendants digits indicating tion of the month granted motion because SB day despite language of his birth specific protec- 216 “ero[ded]” the consent decree’s contrary on the form to the he because tions and because both SB 205 and SB 216 grew up country follows the date original related to which complaint, sequence used elsewhere in the world. challenged re- Ohio’s voter-identification quirements generally. more presented also opin- The court was with testimony Jeffrey ion from Dr. supplemental complaint
The asserts ten Timberlake plaintiffs, McCarty claim for Nolan viewpoint-discrimination counts: and Drs. Hood, III, for under the First Fourteenth Amend- and M.V. defendants. ments; the race or claims under Fourteenth Because Ohio does record ' requires 6. Ohio boards to ‘‘ex- entitled to be counted.” law elections ballot is valid and 3505.183(B)(l)-(2). any § amine in addi- additional information” Rev. Code. original complaint alleged "determining] tion the individual elections whether provisional registered “apply who cast the boards the same standards ballot would determining eligible provisional applicable to vote in election” when whether .... provisional eligible in order to "determine whether a ballots counted.” *10 judgment court entered voters, Ultimately, the Timberlake used
ethnicity' of its on their undue-burden for the plaintiffs inferences about county-level to make data claims, for the and defen- and vote-denial race relationship between voter and the permanently It all counts. on other dants provi- rejection of absentee and use portions enjoined the enforcement from the He examined data ballots. sional require 216 that: 205 and SB SB 2010, 2012, general elec- and ballots reject absentee boards tions. who do not accu- provisional voters and “high counties into Timberlake divided birthdate complete the and rately address minority” groups, “low and minority” and fields; period cure seven reduce the cor- assessing the regression performed poll-worker forms of days; prohibit most county’s percent minor- assistance; relation between provisional voters require and provisional and ballot use ity and absentee on the affirmation print their names controlled rejection. Two his models form. and education, urbanicity, age, and
for
entry
judgment
for
appeals
Ohio
In those
population.
white
income
plaintiffs
on the undue-burden
models,
“some evi-
Timberlake observed
Additionally,
it con-
claims.
vote-denial
evidence,
dence,
very strong
though not
approved
improperly
the court
tends that
heavi-
that absentee ballots are used' moré
plain-
supplemental complaint,
counties.” He
ly by
high-minority
precluded
from
tiffs
have been
should
higher
they
stronger”
challenges,
evidence
and that
bringing
found “much
their
cross-appeal
The
among
standing.
plaintiffs
lack
rejection
rates
absentee-ballot
for
judgment
Ohio
entry
voters. All four elections
African-American
uniform-standards,
literacy-test, due-pro-
rejection rates of
higher
showed
use and
intentional-discrimination,
cess,
and imma-
coun-
provisional
higher-minority
ballots
terial-error claims.
ties,
controlling
urbanicity
even when
characteris-
white-population
three
Standing
II. Claim Preclusion and
tics.
plaintiffs,
argues
all three
Ohio
gave “great
opinion
The
court’s
district
(ODP)
Party
at the
Democratic
Ohio
It
weight” to Timberlake’s conclusions.
least,
by
court’s
are bound
the district
very
expert
found that
the defense
witnesses
v.
Org.
Collaborative
decision
Ohio
report.
not refute Timberlake’s
—
did
2:15-cv-1802,
Husted,
F.Supp.3d
No.
court
considered nine nonexhaustive
next
(S.D.
—,
May
Ohio
the consent protections decree’s and be ity claims. provisions allegedly imposed cause both impede voting burdens in simi that would Abridgment A. or Vote Denial lar ways provi as voter-identification Legal 1. originally challenged. essence,” sions “In Framework found, points’ the court “the ‘focal of both the district We court’s review complaints ensuring are the all same: bal legal conclusions novo and factual de find lots, particularly provisional but and ab ings for Lindstrom clear error. v. A-C ballots, unfairly sentee ... are not exclud (6th Tr., 488, Prod. 492 Liab. 424 F.3d Cir. illegal and left due to voter ed uncounted 2005). standard, “Under clear-error we rules.” identification by findings abide fact court’s unless concluding, In carefully ap the court with so record the definite ‘le[aves] [us] plied legal the correct and did firm that a has standard conviction mistake ” clearly not make erroneous Yancy, factual committed.’ United States v. find been (6th 2013) ings. supplemental complaint 596, (altera revolved 725 598 Cir. F.3d original) election that affected the tions in v. (quoting around new laws United States (6th Gardner, 437, longstanding terms 649 442 consent F.3d decree 2011)).8 lengthier, dispute. an. even resolved Although repeatedly precedent reversing dissent classifies sistent with established novo, approach our review as de our is con district record is court wherе the overall 626 Bolden, § Ill (Supp. v. 446 52 U.S.C. II Vol. City Mobile 10301 “permanent, as a 47 The na operates
U.S. S.Ct. L.Ed.2d statute (1980), Holder, Supreme ban,” County Court that racial v. Shelby held tionwide — 2612, 2631, ly —, state action did not fall neutral within U.S. 133 S.Ct. Congress (2013), Section 2. the ambit of VRA on “even the L.Ed.2d 651 most amending discrimination,” Section 2. That countered subtle forms of Chisom response clear” “that Roemer, “ma[d]e the Court S.Ct. U.S. proved (1991) (Scalia, J., 2] be [of violation Section could dissent L.Ed.2d 348 discriminatory by showing effect alone.” ing). 35, 106 U.S. at
Gingles, 478
S.Ct.
of a
[Section]
“The essence
2 now reads:
Section
claim”
that a challenged
is the assertion
(a)
voting qualification
prerequi-
or
No
provision
with social and his
“interacts
standard,
voting
practice,
or
site to
torical
an inequality
to cause
conditions”
imposed
or
procedure
or
shall
minority
opportunity
racial
voters.
by any
or
sub-
applied
political
State
Gingles,
627
(2)
part
plaintiffs
prove disparate
“that
must in
impact.
burden
caused
by or linked to
and historical condi
plaintiffs
prove
‘social
failed
that SB 205
n
currently
produce
dis
tions’
have
disparate
and
216
impact
SB
have
against-
pro
crimination
members of the
Therefore,
African-American voters.
anal-
at 554
52
(quoting
class.” Id.
tected
ysis
any
beyond
disparate impact
test
2015)
§
II
Ill
(Supp.
U.S.C.
Vol.
unnecessary.
47, 106
Gingles,
478 U.S. at
S.Ct.
panel
The Ohio State Conference
SB
and SB
preliminarily enjoining
affirmed an order
The district court found that “Timber-
reducing early
from
in-person voting
Ohio
on disparities
provisional
lake’s data
2014 general
election. The Su
usage
rejection
absentee ballot
rates
preme
stayed
Court
v.
order. Husted
higher minority
reveal
population
—
NAACP,
Ohio State Conference of
share is correlated to higher rates of ab-
—,
U.S.
S.Ct.
trict parties starters, reached a settle For regression Timberlake’s ment. analysis support con- simply does clusion that 205’s and birth- SB address adopted
Two circuits have since perfection requirement, date or its limita- Ohio State test. Veasey See Conference assistance, poll-worker tion on disparately Abbott, 216, 243-45, 830 F.3d. No. 14- impact minority controlling voters. When (5th WL *17 *15 income, urbanicity for the and age, 20, 2016) (en banc); July League Women of of population, education the white Timber- Carolina, N.C. v. North Voters 769 F.3d of every lake for additional one found that (4th 240 Cir. The district court of percent minority county, in a use absen- case, used it in this and a recent Sixth by ballots amount in tee increased small in panel “helpful” Circuit found it deter- general 2010 the 2008 and elections'—134.2 mining a 2 vote-denial claim. Ohio Section 195.2, 100,000 respectively, every for Husted, Party Democratic 834 F.3d by voting-age residents —but decreased 637-38, (6th 2016 at *13 WL in 99.5' and 96.6 ballots the and 2014 2016) Aug. (evaluating a vote-denial general He therefоre that elections.9 found using claim the Ohio State Conference conclusion that clarification). support the evidence to the framework, with additional ballots high-minority counties use absentee two-part that argues test very strong.” “not heavily more was goes awry ways. in two Whether the dis Certainly additional absentee ballots are trict court did in fact mischaracterize the irrelevant, perfection on rejected is At account of the re- very test however. least, is requires quirement. a successful 2 claim But there scant Section evidence voting. separately analyze 9. Timberlake did not in- person voting absentee and mail-in absentee during that three- cured their minority that are more ers” ballots
the record voters no evi- record contains day than white The likely to cast absentee ballots window. provi- or of absentee illogical to dence on the number It therefore be would voters. of advantage took sional who rejecting that ballots for voters infer absentee SB days eliminated SB accurately cure complete address failure impact mi- disparately A disproportionately law cannot fields affects birthdate nority impact insignificant is some voters if its minority voters other evi- without minority likely begin less voters are with. dence And, requirements. dis- those as fulfill Challenges perfection’ re- SB 216’s elsewhere, the vast more detail cussed lim- provisional voters and its quirement of rejections are
majority absentee-ballot suffer poll-worker on assistance itation challenged other than for reasons those shortcoming. The conclu- from the same here. im- disproportionately sion that SB minority borne out voters pacts limits SB .same The true sure, majority provi- To For the vast poll data. places workers. rejected, no early sional whose ballots provision impact hypothetical will change the result. help amount would in-person whose ballot absentee voter voting provisional contains rejected past elections The record have been would 2008, 2010, 2012, 2014, for forms of data now-prohibited assistance. but every general one no how 2015 elections. the. record contains evidence Yet elections, ninety eighty percent if such addi- those many, any, voters received voters whose ballots were re- provisional evidence tional Because “assistance.” register at all or usage is either had failed to higher minority jected absentee-ballot Placing a minor weak, wrong place. does indicate voted and the record disproportionately benefit- check on election workers’ interactions minority voters no proscribed, impact voters has in-person with ed from аssistance is now provisional-ballot rejec- dispa- majority vast have not demonstrated plaintiffs tions. impact. rate claims, during 216 has been in effect the two
On SB their other Section provi- The plaintiffs challenged general fail to most recent elections. show that in 2014 and 373 impact much of an on sional 247 voters provisions will ballots have rejected right to all. district court voters in were failure vote at reducing period provide cure accurate birthdate reasoned that address. *16 represented figures illit- days Respectively, from to burden these ten seven would rejected of percent travel- three voters and for whom about five and erate ling presents logistical provisional per- cure ballots less than one ballots—and to them provisional cast. speaking, a sce- cent of all ballots Hypothetically What difficulties. more, not figure account up voters showed the 2015 does nario could where exist reject- 2014 whose ballots were droves to correct absentee-ballot errors individuals register but who produce provisional-ballot ID ed for failure accurate- dur- form ing days. ly the affirmation and suc- completed those three But has not that fact, cessfully registered for the next single the Ohio. In election. been case the of Presumably, those voters would election-board official whose trial testimo- some otherwise, of which ny support registered court the district cited its not have of that 216 has the effect County, that in SB reduc- conclusion stated Hamilton means rejected on the “very ing vot- ballots populous, Ohio’s most few third number
629
nonregistration
basis of
future
ment
registration
elections.
be able
applicants
helps to
impact
That
counter the small
“give a
interpreta
read and
reasonable
impact that SB 216 does have. Given the
any-
tion” of
clause
the Louisiana or
216 n
negligible impact
perfection
SB
United States Constitution violated Four
requirement
rejection,
plain-
ballot
Amendments),
teenth
aff'd,
and Fifteenth
provision
tiffs have
not shown
85
U.S.
S.Ct.
B. Test misuse” of literacy “good tests and moral Section 4 of provides that “[n]o VRA requirements). The address- character” right citizen shall be denied” vote requirements simply and-birth-date do comply any “because failure to with his meaning device,” fall within the “test or 10601(a) § test or device.” U.S.C. as used 52 U.S.C. statute. (Supp. II Ill or Vol. “Test device” 10501(b). § To the extent that the House that, pre- defined as a as a requirement Report “‘perfect require censures form’ requisite to register, person vote or ments,” no prohibition appears such in the “read, write, ability un- demonstrate text of the Compare statute itself. H.R. derstand, matter,” or interpret any dem- 89-439, Rep. § at with 52 U.S.C. or onstrate “educational achievement” circumstances, unambiguous these subject, “knowledge” any “possess good language of the statute prevail. must See character,” moral or others “vouch[ ]” have Mfg. LLC, Rote v. Zel Custom 816 F.3d 10501(b).. § for them. Id. (6th 2016) (heeding Supreme Cir. Court’s “admonishment to courts not to The district found that any unexpressed requirements add to the § private right 10501 includes a of action language of the (quoting statute” Keller v. concluding before challenged pro that the Nigeria, Cent. Bank 277 F.3d visions do not if a violate the statute. Even (6th 2002))). private right, permitted, of action is we agree with the court that To that-recording district SB the extent birthdate voters, impose proves do not or or address difficult for SB “test some explicitly permits device” Ohio voters. election officials blind, disabled, or assist those who are plaintiffs The equate requirement in marking illiterate their ballots. See Ohio absentee provisional voters accu 3505.24(B),3505.181(F). §§ Rev. Code rately complete birthdate address plaintiffs’ supposition stigma of “vague, arbitrary, hyper- fields with the illiteracy request- deters some voters from technical or difficult” tests unnecessarily ing assistance distracts from focus cited' Congress as ur evidence inquiry action. To fill the ad- —state gent Rep. need for the VRA. H.R. 89- No. fields,, dress and birthdate voters need (1965). However, requiring vot the.ability” “demonstrate to read write most biographical personal ers' basic any they more so than- do to otherwise similarity information' bears no to sfelec- *17 complete ballot. tively voting “only enforced tests whose is real to “foster racial discrimi function” C. Error Immaterial Ibid.; (citing nation.” see also at 12 id. Louisiana, F.Supp. 225 no provides
United States v. The one VRA 353, (E.D. 1963) (three-judge panel acting may “deny color of La. 358 under law finding require right any any a Louisiana Constitution individual vote in elec 630 Equal-Protection Claims on a or omission” V. of an error
tion because if voting or ballot application registration questions are equal-protection Three material” “is not or omission the error challenged appeal: Whether issue qual the individual determining whether (1) unduly right burden provisions 10101(a)(2)(B) § to vote. 52 U.S.C. vote; (2) ified in a of uniform stan- result lack 2015). A (3) Ill later subsection (Supp. dards; II with a dis- Vol. were enacted any person again, we re- criminatory purpose. § that when Once 10101 states legal court’s conclusions “any right priv view the district deprived another has findings for clear er- (a) and factual , de novo ... by subsection ilege secured ror. for the may institute Attorney General civil action or other ... a United States A. Undue Burden relief.” preventive for proper proceeding Legal Standard 10101(c). §at
Id.
every
certainty
The
elec
implica-
negative
that the
have held
We
places at least some burden
tion law
provision
enforce-
Congress’s
tion of
that courts
individual voters demands
that the
Attorney
by
ment
General
against
provi
weigh that hindrance
private rights of
permit
not
statute does
regulatory justification. On one
sion’s
ering challenges to state election law:
may
“A
this court
panel of
weigh
A court ... must
“the character
pub
because a
binding precedent
overturn
injury to
magnitude of the asserted
con
prior panel decision ‘remains
lished
by the First and
rights protected
trolling authority unless an inconsistent
plain-
that the
Fourteenth Amendments
Supreme
of the United States
against
pre-
decision
“the
tiff seeks
vindicate”
by
of the decision
forward
the State
requires
put
Court
modification
cise interests
imposed
justifications
as
for the burden
sitting
or this Court
en banc overrules
”
rule,”
Elbe,
taking into consideration
v.
its
prior decision.’
States
United
interests
2014)
extent
to which those
(6th
“the
(quoting Sal
F.3d
Cir.
necessary
plain-
it
to burden
make
Servs.,
Sec’y
mi v.
Health & Human
rights.”
tiffs
1985)).
(6th
McKay
F.2d
panel.
this
Thompson
(quoting
therefore binds
Id. at
S.Ct.
Celebrezze,
780, 789,
bring an action for a
460 U.S.
plaintiffs may
Anderson v.
(1983)).
10101(a).
631
J.).
In
of
practice,
opinion
level
weigh-
scruti
lead
refrained from
ny
challenged
into a
ing
“special
election law varies
burden”
“a
faced
small
severity
on
of its
on
based
constraint
of voters”
number
because the evidence on
voting rights.
“[S]evere restriction^]”
gave
the record
“no indication of how com-
must
“narrowly
to advance a
drawn
is,”
mon
problem
impos-
which
it
made
of compelling importance.”
state interest
quantify
“to
...
magnitude
sible
of the
Reed,
289,
279,
v.
Norman
502
112
U.S.
200, 202,
Id.
burden.”
at
632 provisional per- and istered voters who unsuccess- address meet SB 216’s birthdate fully try year. to each 16,- ballots out a east requirements, fection total 860,000 Among domes- rejections. 942 over help The also elections additional fields tic ballots 2014 cast in civilian absentee identify provisional positively boards vot- 2015, 430,000 in 1378 ballots were and counted, pro- ers. For to be their ballots 2014, 2015, and 334 in for fail- rejected in visional voters be located in must a provision ure the similar in comply with registered statewide database voters. SB 205.11 Predictably, entering provisional a voter’s digits of and the last four their name number of Considering the total ballots Security into the Social number database Ohio, in election these general cast a can result in hits. -Birthdate and multiple figures yet, And as demonstrat- are small. plau- address information can narrow the ed through and tes- voter declarations registered sible and assist in con- voters officials, rigidi- timony of board formal firming right an eligible voter’s vote requirements may ty challenged (and versa). vice important Ohio’s inter- for leave no room elections boards to make provisional-voter registration ests in and eligibility. their own judgments voter identification the small eclipse burden result, may As a identifiable voters accurately the two fields—a completing only based on a technicali- disenfranchised impacts just burden' actually a few ty. transposing For location example, election, hundred each an impact year the month numerals a birth- wholly in their control. own mistake, writing date, by the current date However, agree with the we district digits in an inverting have address justifica no such Ohio has made been boards as. cited elections reasons n precision tion for mandating technical rejection. for ballot automatic the address and birthdate fields challenge facial- a envelope. A state law absentee-ballot identification Al though fails statute has le ‘plainly a the burden is small most “where vot ers, gitimate sweep.’” Grange v. impact greater State its than Wash. is that of SB 216, Republican Party, 552 U.S. of the “precise put Wash. State interests none 442, 1184, 449, 170 by” Burdick, 128 151 justifies S.Ct. forward Ohio it. 504 L.Ed.2d (2008) .(citation Washington Glucksberg, 434, v. 112 2059 omit (quoting U.S. S.Ct. 702, n.7, 2258, 521 ted). posits perfection Ohio U.S. S.Ct. first (Stevens, J., (1997) requirement attempts ]” L.Ed.2d 772 concur hampers “rare[ 216, ring judgments)). in the For cast others’ SB mail-in ballots. absentee First registering provisional Combatting perpetrat voters Br. voter fraud interest by. legitimate outweighs undeniably ed mail completing a con burden of. Gonzalez, provi cern. address birthdate fields. Most Purcell U.S. Nee (2006) rejections (per occur Ohio be 127 S.Ct. sional-ballot L.Ed.2d curiam). regis purported specificity cause the voter Yet some was not level necessary presidential-election tered. to convert that into abstraction 20,000 provisional year, weigh. were a definite over ballots interest a court rejected register. for failure uses district court that Ohio did not found even register combatting form to unreg- “offer[ ] affirmation voter fraud” as rele addition, [ijnsufficiient 11. In 633 domestic tains [sic] [i]nformation.” civilian absentee Cf. rejected 3509.07(A). were 346 in ballots 2015, § Ohio Rev. Code "[cjon- envelope ID because the votеr *20 any vant the lack interest. Given of coher strike if ballots the envelope identification trial, argument ent fraud offered at that contained “insufficient” information and is conclusion understandable. had “challenge” discretion to absent voters “for § cause.” Ohio Rev. Code 3509.07 Moreover, argument collapses Ohio’s un- (2013). That provision gave boards more scrutiny. der Before SB absentee vot- than flexibility sufficient investigate to ers to clear several had hurdles confirm birthdate errors for fraud without In identity. their to presenting addition heavy-handed requirement of rejec- ballot identification, a sig- valid voter needed tion on technicality. a envelope on the nature match the vot- registration signature, then, er’s and even trial, At the district court pre- was not the information the identification envel- sented with shred a evidence of mail-in ope could be deemed “insufficient.” Ohio absentee-voter fraud. That of sup- absence (2013); § Rev. Code 3509.07 see also id. port by is ample testimony. corroborated 3509.05-06, §§ 3511.09. Like all other bal- trial, Halfway through the court held a lots, those of absentee voters could sidebar it asked counsel Ohio where challenged § “for cause.” Id. -3509.07.Un- whether a argument fraud was “going to circumstances, der some certain errors be a part presentation of the ... address birthdate well constitute could chief, case experts, [Ohio’s] ... [or] “insufficiency.” provi- SB altered that other witnesses.” Counsel stated sion, requiring reject boards absentee ’ testimony” “w[ould] hear about the not ballots that do an include accurate n motivating passage interests address and birthdate for the voter. bills, including only did fraud. N.ot recognizes Even that the Ohio downside materialize, but, never as is from apparent rejecting mail-in ballots for absentee record, is no indication of a there any address overshadows concern errors legitimate fraud concern at all. The Assis-
with Ohio falsification. statute al- address State, Secretary responsible tant lows, instructed, the Secretary -has elections, managing statewide affirmed complete of elections to boards the address upon possibility cross-examination that the field mail-in envelopes identification so particular voter this fraud “infinitesi- that ballots not thrown out “for th[at] mal” and would not been “an appro- have reason,” bottom, sole At Ohio’s interest priate justification” for perfection 205’s SB around the “rare” instances revolves requirement. None of officials who tes- manages where a fraudster -to swipe the nearly from quarter a of Ohio’s tified voter, registered forge ballot absentee boards elections even asked were signature, the ballot return to the requiring perfection on whether thе birth- with copy board of the vot- elections mail-in date field would combat absentee- identification, number, er’s driver’s license At prodding, voter fraud. the court’s own number, Security or Social and would have questions several answered related away gotten scot free but for trouble- fraud. The few who could relate instances some requirement. What ..birthdate does, relating fraud none to the more, identified explain why its inter- specific, sug- interest This now preventing est voter asserted. fraud mail gests that it interest not off- “necessary makes fraud does plain- burden” Burdick, voting rights. perfection tiffs’ set the burden of U.S. at technical (citation omitted). envelope’s S.Ct. Be- identification address and fore SB boards instructed to birthdate fields. were. act of simple It seem- in stan- would interest
Ohio also asserts
compre-
to more
amending
provision
identification-envelope re-
dardizing its
information that
hensively
Achieving uniform
describe
standards
quirements.
contain
envelopes should
county identification
eighty-eight autonomous
across
way to
a less roundabout
goal.
have been
is a commendable
would
of elections
boards
interest, however, uniformity
have needless-
would
weighing that
A court
—and
addition,
ly
voters.
ask,
disenfranchised
what end?”
must
“Standardization
*21
for elec-
may
publishes
lengthy
ballot
a
manual
example,
For
a standardized
on
extensive instructions
integrity
in
tion officials with
confidence
the
public
increase
statutory
provi-
election
Crawford,
how to
its
process.
apply
See
553
of the electoral
J.,
Reject
to
an
(Souter,
It includes a “Reasons
sions.
S.Ct.
U.S.
SB 205 n
in-
Ohio,
Ballot” section. Ohio could
Absentee
According to
dissenting).
the
explaining
steps
efficien-
clude instructions
requirement “increases
perfection
positively
Br.
that officials should take
First
cy
predictability.”
determining
identify
before
that
just
support,
pieces
In
Ohio cites
two
in-
envelope
sufficient or
is
identification
During
testimony, the Assis-
his
evidence.
Instead,
legislature enacted
the
sufficient.
Secretary of
stated that before
tant
State
a;
that
elections boards
measure
forces
birth-
implementation
SB
the
the
reject
ballots. We cannot
some identifiable
on the
required
“a
element
date field was
outweigh
find that
stated interests
Ohio’s
was not a re-
envelope, but]
[identification
field-perfection re-
the burden that
the
for the Board to
quired element
determine
quirement places on absentee voters.
true,
Although
validity of the ballot.”
not
that statement does
address whether
Assistance.
Limit on Poll-Worker
thought by anyone to
that
was
distinction
demarcating
imposed
The burden
less efficient.
election administration
make
officials
types of
that election
assistance
report
to a
of the OAEO
points
Ohiо also
may
is minimal.
most
render voters
advising
requiring mail-in voters to
that
cases,
not fix
assistance will
poll-worker
fields,
the address and
complete
birthdate
rejection
in
the errors
result
measures,
elec-
among other
would “allow
ballots. As
provisional
absentee and
dis
efficiently process
to more
tion officials
cussed,
provisional ballots
rejected
most
However, ballots.”
mail-in absentee
applicant
not
were
counted because
regard
with
to in-
was silent
document
to vote in
registered
at all or tried
was
Moreover, it
ballots.
was
person absentee
regis
precinct
her or
was
where
she
con-
reject ballots
not a recommendation to
ballots
Domestic civilian absentee
tered.
errors,
taining
sup-
and so cannot
technical
being
usually rejected just
sub
were
rejection
that a
port
argument
uniform
reject
sixty-three percent
mitted late —
efficiency.
standard increases
percent
eighty
in 2014
over
ed ballots
voting requirements inevitably
All
uniformity
interest
Nor does Ohio’s
people more than others.
necessary
right
encumber some
“make it
burden”
voters at
specifically ensures that
technical-perfection
re- Yet Ohio
to vote with
Burdick,
making
mistakes in
greatest
risk
504 U.S. at
quirement.
blind, disabled,
omitted).
(citation
marking
before
their
Even
S.Ct.
ballots—
it
help if
illiterate individuals —receive
instructed boards
Ohio law
SB
voter
requested.
is on
information to
The onus
on the
include
elections
hardly im
make
but
envelopes.
request,
identification
absentee-voter
3509.04(B) (2013).
Any
right
§
to vote.
burden
pinges the
Ohio Rev. Code
See
only by
enacting provisions
those
can but do not
it.
borne
who
avoid
See Munro
easily
Party,
for help
ask
or make
avoidable er-
v. Socialist
Workers
U.S.
195-96,
marking
rors in
their ballots.
107 S.Ct.
L.Ed.2d 499
require
does
that vot-
Federal law
legitimate
minimizing
Ohio’s
interest
ing equipment give
opportunity
voters the
by ensuring
election-official
mistakes
to correct errors before their ballots are
they are not
do not fill
overburdened and
cast
counted. See
52 U.S.C.
personal
justifies
others’
information
21081(a)(l)(A)(ii)
§
(Supp.
II
Ill
Vol.
placed
poll-worker
limitation
assis-
any
But no case mandates
particular
legitimate
tance.12 Because Ohio asserts a
length
provide
of time that states must
interest,
minimally
regu-
this
burdensome
Day
after Election
for voters to cure ballot
lation does not amount to an unconstitu-
negligible impact
errors.
Given
abridgment
right
tional
vote.
voters,
cure-period
reduction
Ohio’s
As
Cure-Period Reduction.
dis
*22
response
prob-
reasonable
to a foreseeable
cussed,
record,
on the basis of
reduc
is not an
lem
undue burden.
ing
days
from
of
ten
seven the number
correcting
for
absentee-ballot errors and
B. Lack of Uniform Standards
presenting provisional-ballot identification
A plaintiff may
equal-protection
State
a
on
imposes
trivial burden
Ohio voters.
by
claim
of
alleging that
lack
statewide
magnitude
is no
of the
of
There
evidence
system
deprives
standards
in a
results
official
the burden and
least one board
right
citizens of the
to vote
based where
that few
even
testified
used the
they
League
live.
Voters Ohio
Women
of
final
cure-period days.
three
Brunner,
463,
(6th
v.
548 F.3d
477-78
That
is
voting
easily
minimal burden
rejected
the plain-
The district
outweighed by
reducing
Ohio’s interest
argument
tiffs’
that the boards
elections
by
administrative strain
felt
boards
two
used different standards
most
they begin
elections
to canvass elec-
before
determining
for
general
recent
elections
tion returns. The official
be-
canvass must
reject
provisional
whether to
absentee and
gin
days
eleven
fifteen
after Election
or
ballots that contained errors
omissions.
3505.32(A).
Day.
§
Ohio Rev. Code.
The
agree.
We
possibility of
post-election
unforeseeable
legitimate
plaintiffs presented
thrust
is a
uncon
upon
issues
boards
that,
determining
Building
three-day
concern.
a
buffer
tested
evidence
ballot,
prac
period
reject
given,
cure
official
a
between the
and the
whether
boards,
vary,
is a
solution. Al-
tices of
can
canvass
common-sense
elections
noted,
considerably. But that
not
though, as the district court
none of
sometimes
does
in a
question
who
lack-of-
the board officials
testified indicated
address the central
whether Ohio
ten-day
period
cure
inconven- uniform
claim:
.standards
them,
certainly
“adequate
ienced
a state
need
lacks
statewide standards
Bush v.
determining
legal
wait for an
issue to arise before
what is
vote.”
election
argued
...
Although
by
appeal,
Ohio on
other Western democracies
numerous
part by
important
managing
secured in
states have an
interest in
a secret ballot
[have]
voting compart-
poll-workers’
pro-
interaction with voters to
restricted zone around the
See,
ments,”
re-
secrecy
prevent
which “demonstrates that some
tect ballot
coercion.
191, 206,
Freeman,
e.g.,
necessary
in order to
504 U.S.
stricted zone
serve
Burson v.
(1992)
compelling
preventing
interests in
vot-
(plurali-
112 S.Ct.
A statement one level of comparable unfairness' during lator who commit allеgedly grossly procedure asked signif- non-uniform Assembly tee debate whether icant.voter the General disenfranchisement. it making “should ... easier for those unconvincing We also find appellees’ people who after church on the bus take contention district court denied Sunday to troubling. vote” is Cf. procedural-due-process their claim “with Conference, (“African State F.3d at 539 addressing out its merits.” Br. 75. Second Americans rely Sunday have come to clearly The district court held that
voting through ‘Souls initia the Polls alleged -harm portions was “caused tives,’ in leveraged which churches have 205 and impose SB[] SB 216 that transportation they already provide completion requirement fields, for the five bring and from church to EIP lack process given when a ballot locations.”). voting agree we with the But Ne. Ohio .rejected.” Homeless Coal. for whole, district court the record Husted, v . 2:06-CV-896, No. 2016 WL does that the Assembly show General (S.D. 2016) at *43 Ohio June acted racial animus. with added). (emphasis- We therefore dismiss this claim. Due VI. Process VII. Conclusion impli The Due Clause is Process ' in “exceptional” cated cases where entry We judgment AFFIRM the for voting system “fundamentally state’s un plaintiffs on their equal-protection un- Elections, v. Bd. fair.” 619 F.3d Warf claim as it due-burden re- relates to the (6th 2010) (quoting League of quirement reject that boards of elections Ohio, Women Voters 548 F.3d at in-person mail-in and absentee ballots occur, may unfairness ex Fundamental complete failure identification envel- ample, if proce a state uses non-uniform ope’s . and birthdate fields with address significant dures result disenfran Therefore, precision, technical AF- we *24 League chisement and vote dilution. See of permaneht injunction its por- of the FIRM Ohio, Women Voters 548 F.3d at of of 205 that tions amend Sections SB variety irregularities,” election “[GJarden 3509.06(D) . and of 3509.07 the Ohio Revised however, prove not unfair fundamental do. Code. See Gen. Assemb. S.B. 130th Burns, ness. F.2d Griffin (Ohio 2014), at 9-12. (1st 1078-79 The district clear, perfectly remaining To be this rejected, court fundamental- plaintiffs’ the injunction impede legitimate does not the claim,
unfairness and we affirm. of Ohio election law. versions interests The. 3509.06(D) response As in to discussed the and that Sections 3509.07 of argument voting system that lacks Ohio’s existed before the enactment of SB (and standards, uniform discrepancies injunction the the rein- effectively states) margins in altogether local of elections boards Noth- how were serviceable. apply not provisions ing opinion prevents unusual. in our election offi- statewide predictable impact Those a cials from divergences rejecting absentee ballots whose small of not envelopes number voters and do amount contain identification “insuffi- n voting system. to a fundamentally unfair cient” information. Ohio Rev. Code. require § Secretary Nor do the 3509.07 can technical-perfection and .The impose of ments that SB 205 and SB should continue to the instruct boards provisional to implementing provisions absentee and voters rise an elections on those vote, to the Ma right the most vulnerable of uniformi- to further the interest in order political out of our minorities steps jority shuts on the guidance ty provide and honor the men and Rather than identify process. absentee should take boards opened the murdered lives women whose en- deeming an identification before voters democracy and secured our And, of our the doors velope “insufficient.” within vote, Amendment, Majority the has abandoned right to the of Fourteenth bounds review in court’s of ordér .authority modify this standard Assembly has General of most in the votes defenseless in the future. But conceal elections laws its of factual dangerous veneers so, important behind act to further doing it must legal and findings lacking support stan proposed changes if its bur- interests State I lacking deeply am sad precedent. dards right to vote. den Ohioans’ distraught the court’s by and delib dened recount- respect the dissent’s deeply We progress of to reverse erate decision history racial important parts ing I history. dissent. voting struggle for country of our and the history may agree that this Ohio enacted Senate Bills rights, and we (1) required county always appropriately borne mind. which elec- and However, history reject not without the ballots ab- does tions boards today’s whose iden- provisional the outcome voters more determine sentee and forms, voting practices and meth- or affirmation litigation envelopes tification over must follow legal respectively, standards we contained address ods. The exactly con- out in the cases we discuss match vot- are set birthdate did records; (2) cerning ing embodied reduced number standards 2 of days and Section for absentee voters to post-election Fourteenth Amendment errors, respect identification-envelope Act. to the Voting Rights With cure factual find- regarding days provisional dissent’s discussion the number identification, quarrel with the from ings, opinion ten present this does valid (3) days; court its recitation the rec- days district over to seven restricted in- credibility help can any ways poll ord or of determinations which workers Rather, our conducting court. person made the district After twelve- voters. legal authoring 112-page holding day opin- the district court’s trial is that findings certain factual brimming conclusions from record ion sound with erroneous, opin- conclusions, in this parts as set forth legal district ion, parts justly light (Judge Algenon Marbley) L. held other im- challenged provisions court did not record that consider. that all *25 right on the to an undue posed burden stated, For we REVERSE the reasons plaintiffs’ equal protec- and vote violated court on judgment of the district the re- tion rights. and the maining claims undue-burden AFFIRM the claims. We clearly VRA Section. of the complete .abandonment entry judgment review, for Ohio on all other Majority erroneous standard claims. of the district court’s displaces several factual find- supported and well-reasoned KEITH, concurring part, in DAMON J. ings. Majority’s gut The decision to dissenting part. to findings of the district court and factual legal precedent closed doors. standards without Democracies die behind advance to shut the most vulnerable out Ashcroft, 303 F.3d order Detroit Free Press subjected (6th must to By denying political process be vote, antiseptic sunlight. un- the natural The ble to I dissent. I would instead affirm the court in full. district right to vote is the of a fettered bedrock it, and democratic society free —without BACKGROUND society right such a cannot This stand. Background It is A. right
fundamental. the most Historical valuable it, possesses, a person because without all Martyrdom Struggle 1. The and rights meaningless. history other As Equal for Protection again, laymen has shown time and time Majority’s The actions must be viewed jurists actively alike and have worked to in light full of their historical context. The minorities, deny right to vote to murders countless men and women who ways. both obvious and obscure The Vot- struggled right for the equal to vote and (“VRA”),1 ing Rights sought protection Act cannot right be overlooked. The utter brutality supremacy of white in its efforts wrong by all allowing this citizens—unre- persons to disenfranchise of color is the right strained —to exercise their vote for tragedy foundation that is the Ma- regardless of race. VRA and While jority’s progress effort to roll back the Equal sought Protection bring Clause history. I not forget. forget— will I cannot forward, society this nation to a closer free forget pain, indeed America cannot —the discrimination, today Majori- of racial suffering, and sorrow of those who died for ty’s opinion takes us steps several back. equal protection precious and for this right Majority completely ig- Because the has I following publicly vote. add the avail- applicable nored the standard of review able historical statements humanize the has engaged and instead its own fact for struggle right equal partici- to be finding and of the reweighing evidence pants process. in the democratic While the complete disregard clearly for the errone- aptly Majority notes that these historical review, ous Major- standard because the statements do not dictate the outcome of ity legal has created standard in contra- case, imperative this it is that we assess existing diction to case law based on a right the efforts to undermine the to vote n concurring dictum, opinion be- as an operative historical that did not be- Majority has cause dishonored the gin Majority’s opinion unfor- with struggle right tunately for the of the vulnera- most will not end with it.2 assaults, murders, etseq. rapes, § lynching, 52U.S.C.A. and utter travesty struggle equality of the for can never give legal analysis I full of the context fully captured pictures. in words or The presented issues in this case as well as full Poverty Southern Law Center a me- sustains historical contextualization the facts. The individuals, morial for these and much of the following pictures synopses cap- cannot following information can be found on their ture the full horror of those who lost their https://www.splcenter.or§ywhat-we- website: quest protection equal lives in the do/civil-rights-memorial/civil-rights-martyrs voting rights. following The is a mere fraction (last 12, 2016). September visited martyrs struggle equality. of the *26 footnotes3,4,5]. image contains the preceding reference
[Editor’s Note: The Project, Berkeley J. Afr.-Am. L. Taylor, Elisa- Five Cities 3. See Meclcfessel ICC. Marielle Dirkx, Mcintosh, (2015). Tucker & bet William Pol’y W. & Cautionary Mississippi: Carrington, CSI Medico-Legal History, 82 Mississippi's Tale of Id. Miss. L.J. C, Johnson, Voting Rights Paula Civil Rights Cold Cases: Five and Era Section *27 6,7,8,9,10], preceding Note: The image [Editor’s contains the for footnotes reference Turner, Till, 4, 1993, Times, Remembering Sept. 6. Ronald Emmett at' http:// available at (1995). 38How. L.J. www.nytimes.com/1993/09/04/us/murder-' memory-klan-special-report-widow-inherits- Id, Huie, (citing at 417 Bradford 7. William confession-36-year-old-hate.html? Shocking Story Approved Kitting (last pagewanted=all September visited Look, 50). Mississippi, Jan. at 419. Id. Alfieri, Race, Anthony Retrying V. Nossiter, Murder, Memory 9. Adam And the Rev, 1141, L. Mich. Klan; Special Report: A Widow Inherits a Con- Crime, To a 36-Year-Old Hate N.Y. fession *28 image preceding Note: The [Editor’s 11,12,13,14 reference for footnotes
contains the Walker, Walker, Diego L. Rev. at Away: 46 San The Violent Bear It 11. Anders Law Till and the Emmett Modernization of Diego Mississippi, 46 L. San Johnson, Voting Rights and Civil 13. Paula C. Enforcement (2009); Green- 492-93 see also Jack Rev. Rights Five and the Era Cold Cases: Section berg, Board Education: An Axe in Brown v. Berkeley Project, Afr.-Am. L. J. Five Cities Racism, U. L.J. St. Louis Sea the Frozen Pol’y& (2004) Greenberg, (citing Cru- Jack Band Courts: How a Dedicated saders in the 14. Id. Rights Lawyers Fought Civil Revo- for the (1994)). lution *29 [Editor’s Note: preceding image The 19](cid:127) 15,16,17,18, contains the reference footnotes NP-R, 14, 2013, http://www. April
15. Id. at available npr.org^2013/08/14/211711898/a-postmans- 16. Id. 1963-walk-for-justice-cut-short-on-an- (last September alabama-road visited Crusto, Supreme 17. Mitchell F. Court’s Agenda?, Anti-Rights "New” Federalism: An (cita- (2000) 16 Ga. St. U. L. Rev. omitted). 19. Id. tions Johnson, 18. Miles A Postman’s 1963 Walk Justice, Road, For An Cut Short On Alabama *30 preceding 24]. Note: The [Editor’s imac 20,21,22,23,
ontains the reference footnotes Silcora, Russell, Padgett Legacy Cleansing Frank Margaret Moments Tim M. ,L. Justice, Retrospective Ware, Magazine, Sept. 101 Mich. Rev. Virgil Time http://content.time.com/ available time/magazine/article/0,9171,485698,00.html Q. Cochran, 21. Donald Alabama: Ghosts of , (last September visited Cherry Bobby The Prosecution Frank Baptist Bombing the Sixteenth Street Id. Mich, (2006), Church, J. Race & L. Id. *31 29], preceding image Note: The [Editor’s footnotes 25,26,27,28,
contains the reference for Hall, Anthony Shepard, Martyr Ago, 25. A A Stand Justice-Examin- Remembered: 30 Years ing Why Negatively Stand Laws Rights Your Ground Activist Bruce Klunder Died Beneath Americans, Impact Region Here, (Cleveland), S. Black Apr. Plain Dealer Bulldozer African (citation (2013) 7, 1994, L. Students Ass’n L.J. Al). omitted). McDonald, Spoilers? 28. Janis L. Heroes or Id. Role Un- the Media the Prosecutions Murders, Rights 34 Ohio Civil Era N.U. Henderson, solved Demography 27. William D. 797, 817, (2008) (citation L. Rev. omit- Desegregation in the Public Schools: Cleveland ted). Comprehensive Theory A Toward Education- Success, al Rev. L. & Failure and N.Y.U. (2001) Change (citing Soc. Paul Id. *32 image preceding Note: The [Editor’s 30,31,32,33,34 for footnotes contains the reference 1960s, 93, 102-03, 129, Johnson, Emory Rights LJ. Voting and Civil
30. Paula C. (1984). Rights Cold Section Five and Era Cases: Project, Berkeley J. Afr.-Am. L. Five Cities (2015). Pol’y& Johnson, Voting Rights and Civil 33. Paula C. Rights Five and the Era Cold Cases: Section Id, Project, Berkeley J. Afr.-Am. L. Five Cities Pol’y & Belknap, Michal R. The Vindication Legal System Burke Marshall: The Southern at 386-89. Anti-Civil-Rights Violence 34. See id. and the *33 preceding image Note: The [Editor’s 40]. 35,36,37,38, contains the reference for footnotes
35. Id. 39. Alfieri, Race, Anthony Retrying 384. V. at 1141, 1164 Mich. L. Rev. 36. Id. 40. Id. 37. Id. at 384.
38. Id. image ]. Note: The preceding [Editor’s 41,42,43,44 for footnotes
contains the reference J, Prosecutor, ICillen, July/August Krajicek, ers For David Black Man Killed. 41. Whites-Only Trying To Use Bathroom In Ala- 28. at Echo To- 1966 Set Protests That bama In Off News, 21, 2016, day, Daily May available Id. 43. http://www.nydailynews.com/news/national/ black-man-killed-bathroom-alabama-1966- Id. (last September visited article- 1.2645287 2016). Gill, Joseph Mississippi at Last: Justice W. Beckwith, Bow- The Trials Convictions *34 preceding image [Editor’s Note: The 45,46,47,48,49
contains the reference footnotes L, Afr,-Am. McDonald, Spoilers? Project, 45. Berkeley Jams Heroes Cities L. Five J. Role the Media in (2015). Un- Pol’y Prosecutions & ; Murders, Rights Civil Era 34 Ohio N.U. solved L. Rev. 48. Id. Id. Id. Johnson, Voting Rights 47. Paula C. Civil Rights Era Cold Cases: Section Five and the *35 States’ 2. The of the United preceding image Election Note: The [Editor’s 50,51,52,53 President First Black reference footnotes contains the ](cid:127) important historical occurrence Another from efforts to separated
that cannot be right to vote is the abridge minorities’ First United Black election States’ III, Walker, Birming- Away: Henry Richardson From Violent Bear It 52. J. 50. Anders The Law Beyond Emmett Till and the the Riverside Church: Modernization Jail ham’s Diego Mississippi, L. 46 San Authority, King’s Luther Global Martin Enforcement (2009). Rev. How. L.J. Massacre, Bass, (n.d.). Orangeburg 51. J. Id. http://www.jackbass.com/_u_the_ available (last orangeburg_massacre u htm 6, 2016). September visited *36 10, 2007, February voting registration
President. On then- on such activi- deadline Illinois, ties, Afri part-time per- Barack Obama an and one NEOCH staff Senator American, candidacy per can announced his for 20 hours to early son devotes week Presidency.54 voting On No the Unitеd States turnout efforts.” of the Because 2008, 4, laws, challenged vember Obama became “no long- President NEOCH would first provide African-American President er blank cards to its members to mail, not vote United States. President Obama but will instead focus ... [on] only vote, presidency, but under captured driving people polls to the which his leadership, party the Democratic and from will divert drivers vehicles doing House, gained control of organiza- the Senate other work on behalf and the White House for the first time tion. ...” This also require will more fi- 4, 2011, 1995.55 April since President nancial resources. On Obama announced his reelection In describing impact loss 6, 2012, presidency.56 On November Presi voting to constituency, the NEOCH dent Obama was President of reelected following findings district made the United States.57 of fact:. Were NEOCH’s members unable to Background B. Factual vote, bargaining power their vis-á-vis 1. The Parties58 diminished, elected would be officials
Plaintiff, “The Northeast Ohio Coalition which would in turn diminish NEOCH’s (“NEOCH”), for the Homeless” advocates advocating effectiveness at on their be- homeless, on behalf of the airing Cleveland half, frustrating exposing its mission and addressing and issues lack related their already population vulnerable to fur- housing, employment, health and care. governmental neglect. ther The home- seventy About in- percent NEOCH’s constituents NEOCH and CCH less person applicants homeless are African challenges face that hinder them from Promoting voting among American. its asserting rights, including their own members, addiction, among county- and difficulty homeless mental illness and/or wide, mission, maintaining regular phone central NEOCH’s or address director, staff, number, transporta- NEOCH’s executive limited access to tion, expend illiteracy volunteers resources on of education. substantial lack voting years. They challenging gain activities also find it even-numbered “spends public Executor Director Brian Davis as to courtrooms entrance build- ID, per ings many much as hours to lack of home- week around due Husted, 2:06-CV-896, Nagourney Zeleny, 54. Adam & Jeff Homeless v. No. Obama Race, Formally (S.D. Presidential New York Enters WL *1 Ohio June Times, Feb. 2007. infra, Majority failed As stated has any establish that of the district court’s factu 55. Id. findings clearly By way erroneous. al reference, incorporate I all of the district Kolawole, Cillizza 56. Chris & Emi President findings in this I have court's factual dissent. Bid, Washing- Obama Announces Reelection here; highlighted findings many of those Post, how April ton ever, particular I to the direct attention Fahrenthold, As 57. David A. Obama Reelected finding regarding district court's the Senate President, Post, Washington November Factors, incorporate I herein. which also Husted, 2016 WL at *24-32. following 58. The facts are taken from the opinion. district court Ohio Coal. *37 ,a of the chal- American. Because relationship are African negative people
less have laws, voting explain will new lenged or system CCH judicial hesitate with the persons at meet- to homeless requirements to assert litigation in their get involved require- ings, publishing articles about the they focused on rights because are more ments, train to educate and members meeting immediate needs. its their persons. other homeless- (citations Husted, at *7 2016 WL omitted). Plaintiff, Party Ohio Democratic (“ODP”), consisting political is a party who Of the NEOCH homeless members members; it million seeks to advance 1.2 elections, about primary in have voted Party.59 of the Democratic the interests in for eight primary vote the Democratic pri- Republican in each one who votes the Secretary of the State Defendant describing impact of SB mary. Id. the Ohio’s chief election offi- Ohio functions as court made 205 and SB the district 3501.04, §§ 3501.05. Rev. Code cer. Ohio Intervenor, following findings of the fact: of Ohio is an The State living in [E]ight percent to ten those Voting in County Cuyahoga are across shelters illiterate, absolutely majority the and Voting. regis- all Absentee Since only fourth-grade level. Davis read at option have the to vote absen- tered voters form, complexity that the of the feared an ab- any excuse. To tee without receive along provisions 205’s demand- with SB ballot, provide the a voter must sentee ing required fill that voters out the fields or county in he which she will Board ... completely accurately and increased consisting application an of: (1) vote being the risk of NEOCH’s members number; (2) the vot- voter’s driver’s license twenty years In his disenfranchised. security digits four their social last er’s homeless, has working Davis with the (“SSN-4”); (3) an approved number persons per- have noticed homeless require- form of identification. If these filling profound problems out vasive and met, ab- the voter receives an ments are being or fill forms. Not able read ballot; if requirements these sentee correctly embarrassing’ out forms is met, deficiency. is of the the voter notified humiliating many of NEOCH’s mem- “in-person may do absentee A voter vot- bers, help. to ask for they hesitate county in-person ing” i.e., vote at their — govern- practice NEOCH’s with other or, during days and Board certain hours — forms, relating ment such as those mailing voting,” “mail-in absentee When disability and Security Social Medicaid Board, sign to the the voter form must benefits, is to read forms aloud and envelope affirmation include person’s fill them on the homeless out vote, eligible voter declaring the behalf as a matter course. provide did not driver’s if the voter (citations Husted, at *7 WL SSN-4, voter must license number or omitted). acceptable form of identification provide an
Plaintiff, or state federal documents Columbus Coalition current If (“CCH”), for home- show the name and address voter. Homeless advocates fields, any Sixty percent of there is an error the five people less in Columbus. 11-S, specifying mails a Board Form people in shelters Columbus homeless initiating original joined Un- NEOCH Employees International SEIU 59. The Service (“SEIU”) plaintiff against Secretary in 2006. matter. action ion also a this type informing provisional the voter provide error and voters must also *38 that the ballot will not of be counted unless date birth and current address. SB steps namely, certain returning are also to requires print voters their .names taken — the Form 11-S a certain time. provisional ballot envelope. Section 3505.182(F) of provision already im- Voting. Provisional cannot Voters who posed “completeness requirement.” a Sec- eligibility confirm so cannot cast a —and 3505.181(F) provides persons tion fill- regular complete provisional a ballot—can ing provisional out may ballots receive ballot. provi- This allows the to voter cast help, only they if but an declare to election sionally, “subject later verification.” to they official to unable fill out type voting This of to is available several blindness, ballot due to disability, or illiter- categories of voters. acy, Challenged 3. Laws Lead-Up The to SB and SB 216 changes voting SB to absentee 205— Following election, the 2010 control of procedures ' the Ohio House of Representatives ID envelope SB mandates that an from switched the Democratic to the Re- if incomplete considered the voter does not publican Party. “Rather quickly” after that fill required out the of five fields informa- change leadership, Republicans House (“five-fields (1) tion name; requirement”): (1) two require introduced bills: to bill all (2) address; (3) birth; (4) residence of date photo to voting Ohioans show ID when (5) ID, signature; and some of which form (2) (“HB Bill 194”), House types acceptable includes the of ID re- expansive election-law bill that included “a quired for application the absentee ballot voting, number including of restrictions requirements met, If form. these are not that we restrictions see [SBs the voter will notice in- receive a written Representative Clyde, and 216].” Kathleen forming them of of the nature the defect Ohio Assembly person, General testified pro- and that further information must be that,the over HB “very debate 194 was for
vided the ballot to be counted. Before partisan “very quick.” and hostile” and HB of enactment SB information con- ready signature was for the Governor’s tained in merely the five was re- fields introduction, within two months its quested, required. not Pursuant to SB Representative Clyde which testified if missing, information ballot significantly period marks a shorter time “shall not be counted.” passage than for the legislation usual provided information must bе no Husted, complexity. such 2016 WL later than the seventh after elec- day 3166251,at *13. i.e.,
tion. opportunity This to “cure cure — August in an unprecedented period” longer before the enactment —was move, legislature repeal to voted 205; days SB voters rather than had ten HB 194 after hundreds thousands days seven to furnish the information. petitions place Ohioans to it on the signed changes voting provisional SB to 216— ballot, for a in No- statewide referendum procedures proposing vember 2012. Sixteen other bills (cid:127) Before enactment of voting SB restrictions were in the introduced names, required only provide eight were to their Assembly, General 2013-2014 IDs, signatures provisional passed. passed in the bal- which to shor- One bill.was lot gather affirmation form. signatures SB ten the window Pursuant ballot their to cure their will need referenda, it more difficult which made Id. at it in so. *17. time do on the ballot. receive a referendum put citizens making it easier passed Another bill was Requirements Information rolls. registration from the
purge voters first Bill eliminated which Senate individu- majority The vast NEOCH’s also was early voting period, week participate plan al homeless members introduced, but Other bills were enacted. Many of CCH’s election. general the 2016 limited vot- passed, would have which Many of the plan to vote. members also *39 the following ways: shortening ing in the illiterate, bare- organization’s members are days; eliminating voting period to early literate, ill. A CHH mentally ly and/or hours; of limiting mailing the early voting assistance, a that without testified witness to voters and applications absentee ballot complete the person could homeless postage of return paying the preventing complexity that due to the form and entire instituting a envelopes; ballot absentee form, on the some print and amount of requiring requirement; state photo-ID and it just up tear and people would homeless tuition provide to in-state universities know, to it.” Forms that say, “you hell with provided those they if to students rates official, are, of one Board in the words they needed to vote. ID that students with wording, a complex,” with “a lot of “pretty them, can con- crammed into” 205 cited lot stuff proponents of the SB None educated, voters. literate justification for bill. fuse even voter fraud as a Husted, 3166251, During at *13. 2016 WL Against Poll- 6. Prohibition to in contrast
the floor debate
SB
Assistance
was no
proposed legislation,
most
there
Worker
about the need
testimony
or
offered
data
prohibi-
court found that the
The district
205. Id.
proposed
for the measures
SB
assistance bur-
against poll-worker
tion
debate,
During
Representative
committee
literacy, particularly
persons
dens
low
with
Huffman, speaking in favor of SB
Matt
to reveal
their
they
if
are embarrassed
it
really making
be
“should we
askеd
it
illiteracy
stigma
to
entails.
due
take the bus
people
easier for those
who
that
ample
introduced
evidence
Plaintiffs
Sunday to vote.” Id. With
after church on
fall into this
many of them members
cate-
respect to both
205 and
Demo-
SB
SB
illiteracy
literacy
or low
gory. and that
con-
legislators spoke
cratic
about their
among
prevalent
levels are
homeless.
absentee
provisional
cerns that
and
disproportionately
Homeless voters suffer
of African-American voters would
ballots
disabilities,
illness,
including
from
mental
at
disproportionately. Id.
be thrown out
fill
hamper
ability
their
which can also
*14.
forms. About a
of the homeless
out
third
whom NEOCH works
period,
one Board official
individuals with
As
the cure
disability, forty-five
fifty
challenged
have a
laws
mental
testified
before the
level,
fourth-grade
effect,
during
percent
read at a
into
come
went
voters did
completely illiter-
ninth,
eight
percent
to ten
eighth,
days
tenth
may
poorly and have
They
ate.
write
hand-
period
provisional
to cure them
cure
or,
writing that
difficult to read
due
can
absentee ballots. Because
Board
illness,
struggle to
they
focus
up
days
until ten
mental
receive absentee ballots
All of these
help.
issues
period
cure
is basic tasks without
Day, yet
after Election
for homeless
to whom the
combine to create difficulties
only
days,
seven
some voters
forms without
filling
out
assis-
notifying them voters
Board sends a Form 11-S
envelope
although
may
ID
tance like the absentee
there
be some evidence to
finding,
More-
provisional
support
reviewing
ballot affirmation.
‘the
over, NEOCH Executive Director Brian
on the
is left
entire evidence
with the
experience
Davis
in his
with
testified
firm
definite and
conviction that-a mistake
people
voter mobilization
homeless
been committed.’” Roskam Baking
has
Co.,
Board staff members were more hes-
(quoting
680 F.3d
United States
engage
help
itant to
with voters and offer
Darwich,
(6th
337 F.3d
Cir.
appeared
necessary
it
when
2003)).
“If
court’s
the district
account of
likely
voters have
more
homeless
been
plausible
light
evidence
of the lack
help.
make mistakes
because
record,
may
entire
this court
not reverse
Secretary
any
Husted failed to conduct
that,
accounting,
if
even
convinced
testing
provi-
or
effect
review
fact,
sitting
had it
as
been
trier
it would
ballot
sional
affirmation
the absentee
weighed
differently.”
the evidence
have
Id.
envelope
identification
on voters with low
Foods,
Harlamert v.
(quoting
World Finer
literacy, despite
suggestion
to do so from
(6th
Inc.,
2007)).
489 F.3d
*40
sum,
League
the
of Women
Voters.
the
“This is so-
when the district- court’s
even
that,
many home-
district
concluded
findings
credibility
do not rest on
determi
,
people
vexing
profound
less
ob-
face
nations, but are based instead on physical
vote,
exercising
in
the
to
right
stacles
basic
documentary
evidence or inferences
prohibition against
and the
poll-worker as-
(quoting
from other facts.” Id.
Anderson v.
likely
sistance
to
prob-
exacerbate the
564, 574,
City
City,
Bessemer
470 U.S.
of
lem.
1504,
(1985)).
105 S.Ct.
657
Disparate
Because the standard
review is the
Impact
through
analyze partic-
lens
courts
a
which
Here, the district court did not commit
issue, Majority’s
application
ular
finding
clear error in
“SB 205 and
216
SB
analy-
incorrect standard
its entire
infects
a disproportionate
have
impact on African-
join
I
Majority
sis. cannot
its blatant
Ohio,
greater
American votеrs in
creating
guide
disregard
the standards that
this
risk of
disenfranchisement
African-
court.
Husted,
Americans than whites.”
2016 WL
3166251, at *47. The district court further
Majority applied
B. Because the
imposed
“[t]he
concluded that
burdens
wrong
engag-
standard
review —
by .the
requirement,
five-field
de novo
ing in
review of the
prohibition
assistance,
on poll-worker
and
facts —and because
the district
period
cure
fall
clearly
heavily
reduced
court did not
err in
more
find-
ing
disparate-
than
African-Americans
whites.”
SB
Id.
ly impacted African American
Majority
The
clearly
contravenes-a
erro-
voters,
the district court’s find-
neous
standard
review
reweighing
ings
legal
of fact and
conclusions
and reassessing the
evidence
reach the
on Plaintiffs’
claims should
VRA
conclusion that African American’s are not
be affirmed.
disparately impacted by the
legisla-
new
Supreme
has
Court
instructed that
tion.
years
litigation,
After
a twelve-day
Voting Rights
Act
“should
inter
trial,
painstakingly combing
the rec-
preted
provides
a manner
‘the
the,
ord,
district court found that Dr. Tim-
possible scope’'in combating
broadest
ra
disparities
berlake’s data on
in provisional
Roemer,
cial discrimination.” Chisom v.
rejection
and absentee
usage
ballot
380, 403,
U.S.
S.Ct.
higher minority
rates reveal
popula-
(1991) (quoting
L.Ed.2d 348
Allen v. State
higher
tion share is correlated to
rates of
Elections,
544, 567,
Bd.
393 U.S.
rejection
provisional
absentee ballot
(1969)).
S.Ct.
rate than ing the undue P-1195 at burden. Rpt., Rebuttal Timberlake 2010, (3) PTF-243.) in ] First, Majority misinterprets the ev- rates re- higher had minоrities Majority reasons example, For idence. ballots than provisional jection of as follows:
whites.
[Tjhere
in the
scant evidence
record
likely to
minority voters are more
that
(empha-
Husted,
at *48
2016 WL
than white voters.
ballots
cast absentee
added).
sis
illogical
infer
therefore be
It would
concluded
court therefore
The district
for fail-
ballots
rejecting absentee
that
passage
of the chal-
that “because
accurately complete address and
ure to
laws,
voters are
African-American
lenged
af-
disproportionately
fields
birthdate
their
than
voters
have
likely
more
white
some
minority
without
other
fects
voters
rejected.”
provisional ballots
absentee or
minority voters are less
that
evidence
court’s
Despite
Id.
the district
well-rea-
fulfill that
And
likely
requirement.
Majority reinterprets
findings, the
soned
majority
...
absentee-ballot
the vast
that
reweighs the
conclude
evidence
than
rejections are for reasons other
findings
support
Dr. Timberlake’s
do
challenged here.
those
dispa-
conclusion that minorities are
By
the “scant evidence”
relying on
challenged
by the
laws.
rately impacted
likely to
minority
are more
cast
voters
much of
doing, Majority
In so
makes
voters, the Ma-
absentee ballots than white
ballots
the use
absentee
the decrease
the mark. While evi-
jority again misses
However,
in the 2012 and
elections.
voting
of a
avail
that minorities
dence
Majority avers where the district
again the
than
practice
frequently
more
whites can
directly
argument in a
addressed the
claim,
it is not a neces-
support a Section
clearly erroneous.
manner that was not
claim; minority
such a
sary component for
Totally disregarding the district court’s
they
are more
may only
show
explanations,
factual determinations and
than
likely
rejected
their
have
ballots
Majority discounts the district court’s
require-
of the new
white voters because
explanation for the decrease
absentee ments,
oppor-
they
means
have “less
which
presented
ballots: “Plaintiffs
evidence
tunity than”
voters to exercise their
white
gubernatorial
significantly
election was
Chisom,
right to
U.S.
vote. See
competitive
2014 than
less
from to (1986) group have been elected 2752, minority 79, 92 L.Ed.2d 106 S.Ct. jurisdiction; in public office the of a viola “might probative” Section (8.) significant lack of Michigan Philip Ran there is a State A. tion. See whether Johnson, 16-2071, of responsiveness part the elected No. dolph Inst. v. 4376429, of 656, 666-67, particularized to the needs at *7 officials WL F.3d 2016). minority (6th 17, group; in the members the Aug. The factors Cir. (9.) policy underlying the the whether clude: political or use state subdivision’s (1.) history of any official the extent ' prerequisite to voting qualification, such in political the state or discrimination standard, or practice or voting, proce- right that touched subdivision is tenuous. dure minority group regis- members of the 36-37, S.Ct. Gingles, 478 U.S. at See ter, vote, participate or otherwise to findings on court made 2752. The district process; in the democrátic I summarize be- the fourth factor. all but (2.) voting in the to which the extent low. political of the or elections state subdivi- Analyzing togeth- factors one three racially polarized;. sion is er, strong court noted district history racially discriminatory of “Ohio’s (3.) extent the state or which voting Although the district court laws.” unusually political subdivision has used dis- history racially Ohio’s noted districts, majority re- large vote election practices criminatory voting from several quirements, anti-single shot provisions, ago, it also recent dis- decades discussed voting practices procedures or other or passed criminatory after bills may opportunity enhance election. against minority discrimination
group; factor, the district to the second As from vot- polls court noted that exit (4.) slating pro- if there is a candidate sug- presidential election ers the 2012 cess, whether the of the mi- members gest and substantial significant patterns access to group have been denied nority polarized voting. “Approximately, racially ; process; of African- voters and 96% 41% white (5.) extent which members voting for reported Americans President minority group political in the state or enormous Barack Obama—an differential.” bear the of discrimi- subdivision effects factor, the As to the fifth district Senate education, nation such areas as em- by African faced noted barriers health, ployment and which hinder their political participation Americans ability participate effectively Indeed, noted process. the district court political process; persistent levels discrimination (6.) “employ- political by have African Americans campaigns whether faced income, ment, housing, or subtle education been characterized overt appeals; health.” racial (5th 20, 2016); July [disparate] also Michi Congress whether at Cir. see to determine *17 Johnson, gan Philip Randolph v.
impact product A. Inst. historical State current 16-2071, 656, 667, 2, n. it 833 F.3d such that vio No. conditions of discrimination *7, (6th Abbott, Aug. Veasey 14- WL n.2 Section 2." No. lates 2016 WL 830 F.3d
661 six, (6th 2003) (“[Because for court As factor the district found 542 Cir. [the] appeals politics that there are in [p]laintiff racialized has not directly challenged the discourage in to appeals Ohio. Such “serve court’s district factual ... all conclusions minority prospec- or dissuade voters and factual controversies are deemed aban reinforcing message tive by candidates on appeal doned and the district court’s they belong in simply do findings factual are hereby upheld.”). process mobilizing political by white and/or Majority While the never reaches the particular by in playing voters direction issue it holds that because Plaintiffs’ Sec- insidious, on explicit and sometimes some- 2 tion in infancy, its claim fails careful implicit, times The district stereotypes.” review of the district court’s factual find- examples further as cited racialized ings pursuant Gingles reveals that the by statements public made officials and challenged practice or “caused linked referred commercials. disparaging to ‘social and historical conditions’ that Nor was the district court convinced or produce have currently discrimination minority representation there was against protected members of the class.” (factor seven). example, no As Michigan See State Philip Randolph A. African presently posi- American holds the Johnson, 16-2071, Inst. v. No. 833 F.3d Governor, Governor, tion At- Lieutenant 656, 667, (6th 2016 at WL *8 Cir. torney Genеral, Auditor, Secretary of 17, 2016) (“The Aug. § of a 2 essence claim State, and African State Treasurer. Ameri- law, is that a certain practice, electoral cans occupied positions have of these each structure interacts with social and histori- only history five times of the State. cal conditions to an inequality cause in the Until recently, and the first time in opportunities enjoyed by black and white years, sixty twenty-six-per- the Governor’s preferred representa- elect their son cabinet was white. entirely (quoting Thornburg Gingles, tives.” eight, As to factor the district court U.S. S.Ct. L.Ed.2d many found that not of the “socioeconomic (1986))). Accordingly, I affirm the would disparities improved years,” recent have holding district court’s respect with to the demonstrating Ohio’s lack of responsive- Voting Rights Section Act claim. particularized ness of Afri- needs Furthermore, I affirm the would district Disparities can-American Ohioans. un- findings court’s to both respect with employment steady as have remained well. prongs they of the vote denial claims as Finally, nine, toas the district court factor apply to the restrictions on poll workers primary found that justification Ohio’s and the reduced time cure. support challenged is that laws issue findings its of vote on poll denial they improve administration,” but “election worker restrictions and the time reduced justifications those were tenuous. cure, the district court the follow- stated challenge any Because Ohio does ing: findings pursu the district court’s factual to Gingles appeal, literacy those also cor- ant factual Because levels are low findings binding panel. are on this McEl related with substandard education (6th Wharton, (Timberlake Tr., 73), Fed.Appx. wee v. 5 at and the Vol. 2001) (“The district court’s unchal Court .Dr. Timberlake’s credited has lenged findings binding findings factual ... that African-Americans suffer Court.”) curiam); than this see also from attainment (per Shields lower educational Ass’n, Inc., Ohio, Digest v. Reader’s 331 F.3d concludes whites Court *46 662 added); Complete Auto phasis also suffer Chrisner v. would
African-Americans Transit, Inc., (6th 1251, 1257 the 645 Cir. higher from costs associated with F.2d prohibi- the requirement and five-field because poll-worker tion on assistance instances, simply counting In some after they disproportionately more face would by persons the new the number affected filling challenges out the forms. Because laws, Ohio voter identification without frequent- move more African-Americans minority making any comparisons between whites, may likely be more ly they than non-minority to assess the voters dis- (Id. to at provisionally. to forced be vote numbers, proportionality those the Ma 67-68; Tr., also 10 at see Vol. Hood voting practices concludes that the jority 124.) They likely are more to be also impact disparate in Ohio do have a (Davis Tr., 186.) And at homeless. Vol. a are only because small number voters to they likely because have are more by Disproportionali new affected the laws. to a inflexible or lack access schedules definition, requires assessing racial ty, by car, they likely are more to be burdened disparities. Alexander, See at 419 F.3d by period a shorter for absentee cure ab (noting that “statistical evidence is not (Timberlake Tr., provisional ballots. in a solutely proving disparate essential 61-62.) All of these effects Vol. case,” impact proof but there “must African-Ameri- against discrimination disparity using proper the standards in inequality to cans combine create By comparison”). relying on the sheer in opportunities participate the their in by number of voters the affected law process. political isolation, making any without relevant
Husted,
at *52.
WL
engage
comparisons,
Majority
fads
inequalities
these
Given
structural
any disparate impact analysis
at all. The
impact of
poll
worker restrictions
merely
Majority
counting
in a
engaged
period,
and the shortened
the district
cure
gets
us
exercise
terms
nowhere
err,
clearly
court did not
analyzing
discriminatory impact
a
practice.
rule
Fundamentally
Majority
C.
Mis-
Next,
Majority
concludes that “[a]
Concept of Dis-
understands
minority
disparately impact
law cannot
parate Impact
begin
if its
impact
insignificant
Additionally, Majority fundamentally
Voting Rights
The .text of
Act
with.”
concept of disparate
misunderstands the
proves
itself
this
be false.
statement
A
impact.
particular
dispa
has a
practice
pro-
2 of
Act
Voting Rights
Section
impact
persons
protected
rate
on
of a
class
vides,
part,
in relevant
a violation is
practice
“disproportion
when that
a
has
if:
established
impact
protect
ate”
on the
members
See,
e.g.,
ed class.
Local
...
on
of circum-
Alexander v.
based
the totality
stances,
Union,
political
Laborers’ Intern.
F.3d
it is
shown
(“In
(6th
1999)
‘disparate
leading
processes
a so-called
or elec-
nomination
case,
plaintiffs
prove
impact’
political
need
tion
the State or
subdivision
open
by
the defendant
to discrimi
not equally
participation
intended
nate; instead,
that a
plaintiffs
prove
protected
must
members of a class of citizens
(a)
particular
practice, although
on
its
neutral
subsection
in that
members
[ ]
face,
opportunity
its
has
ad
less
other mem-
disproportionate
caused
have
than
(em
group.”)
participate
verse effect
bers of the electorate to
protected
repre-
political process
part
to elect
relies in
Justice Scalia’s concur
sentatives of their
Cty.
choice.
rence
v. Marion
Election
Crawford
*47
Bd.,
181,
1610,
553
128 S.Ct.
170
380,
Roemer,
395,
v.
111
Chisom
501 U.S.
U.S.
(2008),
that
L.Ed.2d 574
which states
2354,
(1991) (quot-
S.Ct.
findings that Plaintiffs’
insignifi-
is small and
impact on voters-
literate,
illiterate,
suffering from
barely
or
However,
Majority fails
cite
cant.
illness,-
limited
which
disability or mental
a cer-
any legal precedent
mandates
voting-relat-
complete basic
ability to
their
none
quantum because
tain mathematical
illiterate
Although it is true that
ed tasks.
Furthermore,
complete
required.
is
may
assis-
receive
workers
and disabled
privilege
sensitivity
and unbridled
lack
form,
official
out the
filling
tance
its view
Majority exercises
with which the
staff members were
that “Board
testified
exactly what led to the
the trivial
engage
with voters and
hesitant
more
statutory protections at
constitutional
help
appeared
it
to be neces-
offer
when
further,
Ias
have
issue in this case. Still
Thus,
light of the
court’s
sary.”
district
dissent, the stakes
throughout this
stated
testimony,
district
crediting this
small, in-
hardly
proceedings
these
of poll-
limitation
finding that the
court’s
trivial; instead,
impact
significant,
is not
assistance was burdensome
worker
hours of the Ohio
worthy
countless
of.
The district court then
clearly erroneous.
time,
congressional
energy, and efforts
justifications for
lacking the Stаte’s
found
passing
restrictive meas-
only
these
poll
assisting
from
vot-
preventing
workers
ures,
rush to set
defending them. The
but
affirmatively
help
do not
ask
who
ers
any
measures belies
pass
forth and
these
they
or disabled.
because
are illiterate
slight,
mi-
claim
what is
stake is
Husted,
at *39.
2016 WL
trivial,
nor,
trifling,
insignifi-
unimportant,
*50
clearly
findings
court’s
were
cant,
district
negligible, nugatory,
inconsequential,
erroneous.
Similarly,
Majority
the
infinitesimal.
Major-
point
out that the vast
continues
opinion
reading
Majority’s
A
close
the
struck for
ity
challenged
are
ballots
Majority’s
are
that the
calibrations
reveals
not involve
205 and
that do
SB
reasons
hand, Majority
misaligned. On the one
the
however,
216;
impact on
inquiry
our
is the
is no evi-
that because there
concludes
SB 205
those
whose ballots
and
voters
fraud,
of voter
Ohio’sasserted inter-
dence
disparately
does
affect.
against
does
protecting
voter fraud
est
placed
sum,
on the
I conclude that
the
outweigh
the burden
because
challenged
outweigh
and
re-
burdens of the
laws
the address
birthdate
breath,
un-
government’s purported interests
in the same
the
quirements. Yet
the
test,
balancing
legitimate
der the
Majority
that “Ohio’s
concludes
Anderson/Burdick
judg-
court’s
I
affirm the district
mis-
would
minimizing
interest
election-official
respect
of Plaintiffs with
ment
favor
by ensuring
they are not over-
takes
that
claim.
the
Protection Clause
Equal
personal
and
not fill in
burdened
do
others’
justifies the limitation placed
information
CONCLUSION
though
poll-worker assistance” even
wrong legal
poll
Majority applies
that the
workers
there is no evidence
tests,
concept
misapprehends
or that
there
the basic
were
were overburdened
right
to vote must be
justify
which the citizens’
While
state "need not
its laws
"
verification,’
'elaborate,
Takushi,
empirical
weighed.
Citi
504 U.S.
with
See Burdick v.
Miller,
Legislative
428, 434,
Choice v.
F.3d
zens
S.Ct.
boards do accu- provisional voters who birthdate
rately complete the address and
fields; period the cure seven reduce poll-worker
days;, most prohibit forms
assistance; require provisional print them names the affirmation
form.. America,
UNITED STATES
Plaintiff-Appellee, CANELAS-AMADOR,
Wilmer
Defendant-Appellant.
No. 15-6035 Appeals,
United Court States Circuit.
Sixth September
Decided Filed: