Ohio Democratic Party v. Jon Husted

620

V. PARTY; Demo- OHIO DEMOCRATIC Burleys’ briefing Finally, the County; Party Cuyahoga cratic Of over do .not raises two issues which we Montgomery County Par- Democratic jurisdiction. Appel Federal have Rule Biehle; ty; Isern; Bruce Jordan Carol 3(c)(1)(B) requires par late Procedure Butcher, Plaintiffs-Appellees, order, judgment, “designate ties to v. in the notice part being appealed” thereof jurisdic appeal. “Rule 3’s dictates HUSTED, capacity as Jon his official nature, and their tional satisfaction Secretary of the of State State v. prerequisite appellate review.” Smith Ohio; DeWine, Mike in his official Barry, 502 capacity Attorney General (1992); v. also Isert 116 L.Ed.2d see Ohio, Defendants-Appellants. State (6th Co., Motor Ford F.3d 2006) (describing require No. 16-3561 Cir. Rule 3’s “mandatory and jurisdictional ments as of Appeals, United States Court nature”). enacting this “Con By provision, Sixth Circuit. gress appellate has limited this Court’s designated notice of review issues Argued: August Glover, 242 F.3d appeal.” United States August Decided and Filed: (6th 2001). if Accordingly, Cir. designate de appellant specific “chooses notice appeal

terminations in his —rath appealing from the entire simply

er

judgment only specified issues — raised on v. Fisch appeal.”

be McLaurin 1985).

er, 98, 102

Here, although plaintiffs’ notice of orders,

appeal specific lists it does not six

appeal the district court’s assessment of Bur

juror expenses or its resolution of the

leys’ challenge. Batson These omissions jurisdiction, dis

strip this court of and we

miss these claims.

VI. reasons, part,

For these we affirm part.

and dismiss in

Columbus, Ohio, Marc E. Appellants. for LLP, Elias, Washington, PERKINS COIE D.C., Eric E. Appellees. ON BRIEF: Hendershot, Stephen Murphy, Michael J. Voigt, P. OF Carney, Steven T. OFFICE GENERAL, Co- THE OHIO ATTORNEY Ohio, lumbus, for E. Eli- Appellants. Marc Frost, as, Spiva, Bruce V. Elisabeth C. Martin, Calíais, PER- Rhett P. Amanda D.C., LLP, Washington, COIE KINS LLP, Kaul, L. Joshua PERKINS COIE Madison, Wisconsin, McTigue, Donald J. J. Colombo, Clinger, Corey Derek S. MCTI- LLC, Columbus, GUE & COLOMBO Readier, Ohio, Appellees. for Chad A. Ohio, DAY, Columbus, A. JONES Michael Dick, Carvin, Anthony A. Stephen Va- J. D.C., den, DAY, Washington, JONES Fisher, THE Thomas M. OFFICE OF GENERAL, In- INDIANA ATTORNEY Indiana, Joseph A. dianapolis, Vander- hulst, INTEREST LEGAL PUBLIC FOUNDATION,-Plainfield, Indiana, Linda Knight, Carver Whitlow GULLETT SAN- PLLC, MARTIN FORD ROBINSON & Orfanedes, Nashville, Tennessee, Paul J. WATCH, Washington, INC. JUDICIAL' D.C., Wydra, Elizabeth B. CONSTITU- CENTER, TIONAL ACCOUNTABILITY D.C., Washington, for Amici Curiae. McKEAGUE, GRIFFIN, and Before: STRANCH, Judges. Circuit McKEAGUE, J.; opinion delivered the GRIFFIN, J., joined. the court which STRANCH, 640-51), (pp. J. delivered separate dissenting opinion.

OPINION McKEAGUE, Judge. Circuit presents yet appeal another This case (there pending are several the Sixth alone) asking the federal-courts Circuit micro- entangled, overseers and become minutiae in the of state election managers, Murphy, Eric OFFICE ARGUED: E. GENERAL, No denies our Consti- processes. OF THE one OHIO ATTORNEY tution, defining relationship registration between venience voting, ap- government, people plies voters, and, and the establishes even-handedly to all de- rights including the certain fundamental spite change, provide Ohio continues to — vigilant warrant en- to vote—that reasonable, generous, and accessible vot- But Constitution de- forcement. our also ing options to all Ohioans. issue is not relationship between spheres fines whether some voter somewhere would federal, their government, state benefit six days from additional of early responsibilities protecting rights register of this people. genius balance Rather, at the vote same time. deserving of re- power vigilant is no less issue the challenged is whether law results spect. cognizable injury under the Constitu- Voting Rights tion or the Act. We conclude

Ohio is a national leader when it comes that it does not. early voting opportunities. to The state regulation early at issue in- election allows judicial remedies, course, Federal of voting days for 29 Election person before necessary where a impermissibly state law Day. quite really generous. This is The law infringes the fundamental to vote. No neutral; it facially early voting is offers to infringement such having been shown in everyone. The Constitution does not re- case, judicial this restraint is in order. quire any opportunities early voting for Proper legislative deference to state au- many just and as as thirteen states offer thority requires that election pro- Ohio’s day for Election voting: Day. one More- proceed cess be allowed to by unhindered over, subject regulation product is the the federal courts. Accordingly, and for the recommendation, bipartisan aof as amend- fully below, reasons more set forth pursuant subsequent set- litigation ed to REVERSE the decision of the district It is of product tlement. collaborative court subject insofar as it declared the overreaching by not unilateral processes, regulation enjoined invalid and its imple- political party happened be in mentation. Yet, power. plaintiffs complain that allow- days early voting ance of 29 of not does I. BACKGROUND They under suffice federal law. insist History A. Procedural prior days Ohio’s accommodation—35 of early voting, also six-day appeal by which created a This State Ohio offi same-day “Golden Week” for judgment cials a district from court declar registration voting fed- ing a election- regulation state invalid as —established may eral floor that add never Ohio to but equal protection violative of Section from. is an astonishing prop- subtract This Voting Rights law, of the Act of 1965.. osition. Senate Bill known as amends Ohio § early allow in- Revised Code 3509.01 to Nearly a no third states offer person voting period days for a be early plaintiffs’ voting. Adopting theory of Day. Though fore Election law is fa disenfranchisement would create a “one- neutral, cially the district court held that it way ratchet” that discourage would states an impermissible disparate results in bur increasing early from ever voting opportu- nities, den on some African-American voters. Fol they prohibited lest be federal ten-day lowing a bench trial November courts from modifying later their election and December the district court is procedures response to cir- changing Further, May challenged 120-page ruling cumstances. while the sued its on regulation may con- slightly findings diminish the the form of fact and conclu sponse refined its enjoined experience, The court enforce Ohio of law.

sions 238, thereby effectively re voting system permit ment absentee 35-day early in- Id. storing preexisting Ohio’s early voting without need of an excuse. period. Ohio officials person enjoying Ohio residents freedom stay, arguing moved promptly system or could this “no-fault” “no-excuse” court’s order implementing district (“early in person absentee mail or vote August on special ahead of a election in-person” voting) at their con- “EIP” on Novem general election preexisting Ohio its ab- venience. retained irreparable harm would cause ber . sentee time frame. voting public. elections and to its boards of county Until each of Ohio’s 88 part, motion in granted Ohio’s retained discretion boards of elections only respect with to the staying its order early in- schedule for implement own place that has since taken special election voting. person Varying absentee schedules August appeal 2. Ohio officials did inconsistencies, remedy To resulted. stay, ruling on the motion to the court’s task force the Ohio Association expedite appeal the merits but asked us (OAEO), a bipartisan Election Officials as- prior be resolved to the so matter officials, proposed sociation of election election, a motion we general November 21-day early in-per- of a uniform adoption granted. schedule, peri- the voting son under which Voting B. in Ohio “early” voting od or would for “absentee” days nine the end of the voter start after voting regula- A of recent brief review registration period. In provides in Ohio context. history tion 2004, only ballots permitted Ohio absentee 2012, a law on the passed In Ohio based of registered if voters asserted one several recommendation, it repealed OAEO but See Ohio Rev. Code “excuses.” subject the law became to a referen- after (2004). 3509.02(A)(1) (8) § The timeline — 2013, force bipartisan dum. In another task generous: a voting by ballot was absentee not be recommended that absentee days up a 35 pick voter could ballot before day registration until the after allowed the Day, Election the first five which ex- closed, establishing early voting period registration peri- tended 'into Ohio’s voter days previ- of 29 instead the time frame (which days before an elec- od ended February ously days. recommended On tion). Thus, five-day Ohio maintained 238, passed amending Ohio S.B. registration period overlap of its and § to the first Ohio Rev. Code 3509.01 make allowing voting period, absentee residents day early absentee —whether proper regis- armed with a excuse both in-person day mail —the after early (absentee) day. on the same ter vote registration. the of voter This amend- close “same-day registration” be- This window effectively Week ment eliminated Golden came in Ohio as “Golden Week.” R. known possibility same-day registra- and the 117, 34, Opinion Page ID 6156. tion. presidential brought The 2004 election election, Shortly before the challenges general voting special Ohio’s challenged groups NAACP other Among apparatus. problems, other Ohio af- 238, alleging disproportionally long and wait-times voters “faced lines (1) Americans, thereby vio- African fected that, at into polling places, some stretched Equal of the lating the Protection Clause morning day.” early following of the Af- Husted, by burdening Fourteenth Amendment America v. Obama for 697 F.3d (6th 2012). Largely in re- Americans’ fundamental Cir. rican (2) vote; violating Section ing Equal Protection Clause and Sec- Voting Rights Act of 1965 burdening Act, tion of the Voting Rights 52 U.S.C. ability partici African-American voters’ § 10301.2 Despite subsequently acknowl- pate effectively political in Ohio’s process. edging that “Ohio’s national leadership in Though panel upheld of this court a voting opportunities commended,” is to be injunction preliminary preventing imple Order, Stay R. Page ID law, mentation of the see Ohio State Con district court held that S.B. 238 violated Husted, NAACP v. ference of Equal Protection Clause and the Vot- (6th 2014) (hereinafter Cir. ing Rights Act based largely on what it “NAACP”), the Supreme stayed Court called “highly persuasive” reasoning of injunction, Husted v. Ohio State Confer this court’s since-vacated ruling upholding — NAACP, U.S.-, ence a preliminary injunction in NAACP. See R. (2014), 189 L.Ed.2d 894 panel and the 117, Opinion 35-36, Page ID 6156-57. subsequently vacated its decision for moot Regarding plaintiffs’ equal protection ness. Ohio State NAACP v. Conference of challenge, the district court concluded Husted, 2014 WL at *1 imposed S.B. 238 (i.e., “modest” “more 1, 2014). Thus, Oct. the 2014 election took than minimal but less significant”) place with S.B. 238 full effect. After the disparate burden on African Americans. election, the parties to NAACP reached a opportunities “numerous to cast a settlement bal- under which Ohio added anoth Ohio, lot including mail, Sunday vot[ing] by er early in-person voting as well person on hours, Day, as additional Election evening and on other EIP plain voluntarily voting days” tiffs claim dismissed their were chal deemed insufficient to lenging 29-day voting period.1 mitigate the burden. Opinion See 34-36, 42-43, Page ID 6164-65. brings This present us action. Although Ohio allows numerous and conve- settled, After NAACP plaintiffs in ac- registration nient options (including regis- tion, the Party, Ohio Democratic the Dem- mail), by tration more than four weeks of ocratic Party of Cuyahoga County, the absentee voting, and more than three Montgomery County Party, Democratic early in-person weeks of voting, the dis- and three individuals (collectively referred trict court acknowledged to as that there “plaintiffs” or are the “Democratic Par- ties”), minimal postage evidently costs associated finding the with vot- settlement ne- gotiated by ing by the mail accepted NAACP to be and unsatisfacto- what it charac- (as ry, challenged S.B. 238 terized per modified as “anecdotal evidence” that “Afri- settlement) and other Ohio laws as violat- can Americans are voting distrustful of 1. Plaintiffs in the case before us were not judges between district court in the same dis parties trict, to the settlement. separate district court in the Southern Ohio, fully District of aware of the district case, ruling 2. The court’s in this challenged very Democratic found Ohio's Parties also (1) Ohio establishing provisional-ballot statutes: same absentee-ballot and early one in- person voting (2) per "significant laws county; altering location to constitute a burden" not voting justified by the per number of the county; machines State’s interests. Ne. Ohio (3) Husted, revamping requirements the for unsolicit- Coal. the Homeless No. 2:06- CV-896, ed mailing applications; (S.D. absentee-ballot and at WL *36 Ohio (4) regarding 2016). provi- state's absentee and June The court declared both laws requirements. sional Opinion ballot Equal violative of the Protection Clause and 2, Page ID 6124. rejected The district court Voting all Rights Section Act. Ohio's claims, plaintiffs of these appeal did not currently cross- of that pending decision is However, appeal. display in a incongruity panel before a different of this court. manner “right any to vote mail obvious:

mail” to conclude absolute,” in- early be a alternative ... id. the Constitu- [is not] not suitable many African-Americans. person voting for recognizes preroga- tion the states’ clear 43-44, ID The court Page 6165-66. “Times, Id. Places prescribe tive to that, despite generous Ohio’s concluded holding Manner of Elections for Senators options, 238’s modification of I,Art. Representatives.” U.S. Const. in a early voting schedule resulted Ohio’s sense, con- § cl. 1. as well as “Common African-Ameri- disparate burden some law, compels conclusion stitutional legit- despite accepting can voters. And regula- ... must be substantial [there] (pre- imacy of asserted interests Ohio’s they if fair and tion of elections to be costs, reducing fraud, decreasing venting order, rather and if sort of honest some burdens, enhancing administrative chaos, accompany is to the democratic 49-57, confidence, Page ID id. voter Burdick, 504 U.S. at processes.” 6171-79), justi- they court held did Brown, 415 Storer v. (quoting by the law. fy imposed burdens modest 1274, 39 L.Ed.2d 94 S.Ct. The court turned to the Democratic then (1974)). generally law Federal thus and held Voting Rights Parties’ Act claim authority regulate to the defers states’ 2 of the violated Section S.B. 238 v. Marion vote. See Crawford with the Voting Rights Act as “interacts Bd., Cty. Election facing Afri- historical and social conditions (2008) 1610, 170 L.Ed.2d their in Ohio to reduce can Americans neutral, (Stevens, J., op.) (recognizing that politi- participate in Ohio’s opportunity to not be nondiscriminatory regulation will process groups relative to other cal down, despite partisan moti- lightly struck 107, Page ID Id. at voters[.]” lawmakers, to avoid vations some so as elect- frustrating people’s the intent of II. Equal Peotection representatives). ed A. Framework challenge constitutional When a Election cases rest the intersection calls to resolve regulation to an election us- not a de- competing Though interests. two in dispute concerning competing these se, the Court per Supreme lineated right terests, apply the so-called Anderson acknowledged general readily has framework, arising an analysis Burdick “ ‘implicit in constitu- right to vote as our holdings the Supreme ” Court’s Ohio, system.’ v. tional Mixon State of Celebrezze, 780, 460 103 Anderson v. U.S. (6th 389, (quoting F.3d 402 Cir. 193 (1983), 1564, 547 and S.Ct. 75 L.Ed.2d v. Rodri- Indep. Antonio School Dist. San 428, Takushi, 112 Burdick v. 504 U.S. 1278, 1, n.78, 411 guez, 35 93 S.Ct. 36 U.S. (1992). 2059, L.Ed.2d 245 S.Ct. 119 (1973)). 16, such, “pre- L.Ed.2d As this the framework involves Anderson-Burdick right cious” “fundamental” is afforded and following considerations: courts, protection by Harper the v. special first the char- court must consider [T]he Elections, 383 U.S. Virginia State Bd. of in- and of asserted magnitude acter the 663, 670, 1079, L.Ed.2d 169 S.Ct. 16 86 the protected by to jury rights the (1966), the fundamen- “voting as is of most to plaintiff that the seeks [Constitution] significance tal under our constitutional Second, identify and it must vindicate. Takushi, Burdick v. structure.” for- put interests 2059, precise evaluate the L.Ed.2d 245 119 (citation omitted). by justifications as for (1992) ward State Against back- the Finally, by its rule. however, imposed the burden drop, acknowledge we also the

627 and legitimacy disparate must determine the burden on some African Ameri- strength vote, of each of those interests and right cans’ and because the State’s the extent to which those inter- consider legitimate interests are “sufficiently necessary make it the ests to burden burden, weighty” justify this minimal rights. plaintiffs easily plaintiffs’ S.B. 238 survives equal Party Hargett, 791 Tennessee v. Green protection challenge. 190, See id. at 128 (6th 2015) (internal quo- 693 F.3d Cir. S.Ct. 1610. omitted). marks tation and citations the

Though Disparate touchstone of Anderson-Bur- B. Burden on African- flexibility its in weighing competing dick is American Voters interests, “rigorousness inquiry the of our 1. District Court’s Characterization propriety of a law into the state election step in evaluating plaintiffs’ first the depends upon extent to which chal- equal protection challenge requires tous regulation lenged burdens and Four- First identify the “character and magnitude” Burdick, rights.” teenth Amendment the burden on African-American voters This flexible S.Ct. 2059. a result challenged law. The district balancing approach is not devoid of totally identified the burden on imposed guidelines. If a state imposes “severe re- right by some African Americans’ to vote plaintiffs on a strictions” constitutional considering changes effected (here, vote), regula- rights by examining rather than Ohio’s elec- only if drawn “narrowly tions survive regime a state im- tion as a whole. compelling advance interest of The court found hand, portance.” Id. On the other “mini- operation S.B. 238 in a resulted mally nondiscriminatory” burdensome and disparate some African Ameri- subject regulations “less-searching to a “(1) cans changes: as a function two examination closer to rational basis” overall reducing [early in-person] vot- “ important State’s regulatory ‘the inter- (2) ing period, by eliminating op- generally justify ests are sufficient to portunity [same-day registration].” ” restrictions.’ Ohio Am. Fed’n Council 8 117, Opinion Page ID 6157. Husted, State in- Regarding early reduction of the 2016) (citing Hargett, person period, district court Burdick, quoting U.S. at accepting discerned a burden after three 2059). Regulations falling somewhere (1) simple premises: that tens of thousands i.e., regulations impose between — during Golden people voted Week but more-than-minimal less-than-severe likely both 2008 2012 and are so do require analysis, a “flexible” burden — (2) election; upcoming that S.B. plaintiffs the burden on “weighing 238’s elimination of Golden requires Week against the state’s asserted interest and who would “[i]ndividuals have voted pursuing Hargett, means of chosen it.” in during Week future Golden elections 546. F.3d at days must on other the during now vote plaintiffs a Because have advanced mail, early voting by vote absentee period, constitutionality attack on the of broad all;” Day, vote or not at on Election vote 238, “seeking S.B. relief that invali- would (3) and African because Americans have they the statute in all applications, date in voting early shown a for preference heavy persuasion.” bear a burden of Craw- (and Week) person during Golden (Ste- at a rate 200, ford, U.S. at 128 S.Ct. 1610 voters, J., vens, op.). higher than other the “elimination Because we that conclude results, most, days voting provided S.B. at in a minimal of for EIP the extra legal is with both question severe burden by disproportionately Week will Golden 36, dimensions.”); Id. at African Americans.” factual Williams v. burden and (6th 1999) further Mehra, 685, The district court Page ID 6158. Cir. vot- beginning early in-person (en banc) that noted de novo review to (applying registration period eliminated ing after fact, questions observing law and mixed of registration,” meaning that “same-day “findings of fact based ultimate on vote at register must now “voters legal subsidiary to application principles times, which increases the ‘cost of separate review.”). subject In- are de novo facts to socioeconomically voting,’ especially for challenge as the State does not asmuch ID groups.” Page disadvantaged Id. fact, findings court’s we evaluate district is, that “it recognized That the court 6162. application of de novo the district court’s time, difficult voters with may be more subsidiary in principles to those facts legal resource, childcare re- transportation, and made characterizing by out the burden trips reg- make two separate straints to those facts. vote, and allowed ister and Golden Week factual undisputed The record Id. to do both at once.” individuals Very easy shows that it’s to vote Ohio. that, “Af- concluded because district court actually. easy, Viewing S.B. as one are more particular rican Americans progressive voting component Ohio’s economic, subject transpor- likely to be many system, considering options constraints,” tation, time, and id. childcare voters, even that remain available to Ohio they “disproportion- ID Page focus accepting the court’s on the up group make that benefits the district ately [same-day registration], wrought changes by most S.B. removal elimination of that burdens hardly can be deemed to of Golden Week 42, Page ID to vote.” right their Id. any person’s a true impose “burden” early in- Taking the 6164. reduction worst, represents right to vote. At days person voting and the elimination just or contraction of one of withdrawal same-day registration together, district generously have many conveniences that changes effected court characterized the participation facilitated Ohio. imposing as a “modest” S.B. 238 especially apparent when Ohio’s This is to vote. Id. on African Americans’ voting practices compared those of other states. Defining Burden early voting system, as amended Ohio’s matter, note that the As a threshold generous more is one of the re court’s characterization district 29-day early voting the nation. State’s is not a factual sultant burden “modest” currently tenth-longest is period subject legal finding, but determination all the Trende among states. v. Bright novo review. See Gallia de 10, Page Rep. compared ID 6610. When (6th Cnty., 753 F.3d Cir. (including two other to the thirteen states “legal mas conclusions (explaining circuit, Kentucky and Michi- states our allegations” as factual do not querading any early do in- gan) permit ones); factual legal questions convert into path an Ohioan’s person days, Blackwell, Party Libertarian Ohio open easy, not burdensome. voting is 2006) (evaluat of the conven- And S.B. 238’s withdrawal to reach ing evidentiary factual and factors registration hardly same-day ience of “magnitude” conclusion on the legal obstructive; merely brings Ohio into line burden); Hargett, F.3d at 547 (“Whether that thirty-eight require states imposes a with other voting regulation an registration may ing “equal laws,” individual vote.3 protection of the a consti- before if Ironically, expanded Ohio had never ac- tutional standard applicable to all in place cess to absentee ballots the first states. Forfeiting such a tool would artifi- early voting systems and maintained simi- cially constrict the court’s vision and deny Michigan’s Kentucky’s lar to or (permit- reality: routinely courts examine the bur- early ting in-person voting), no it would resulting den from a state’s regulation challenge altogether, have avoided this as with experience of its neighboring well as those addressed Obama for Blackwell, states. See 462 F.3d at 589 America, 697 F.3d and our since- (comparing process Ohio’s for permitting preliminary injunction vacated decision in political minor parties to gain access to the NAACP, Instead, 768 F.3d 524. “it is general election ballot with numerous oth- willingness to go [Ohio’s] further states); er Hargett, 791 F.3d at 694-95 many extending States the absentee (comparing Tennessee’s “access-retention” voting privileges ... that provided has system bro.adly states); to other Frank v. [plaintiffs] with a basis for arguing that Walker, provisions operate invidiously (comparing Wisconsin’s voter-ID statute to discriminatory deny fashion to them a Indiana’s). more convenient method of exercising the McDonald, franchise.” 394 U.S. at certainly We recognize that different added). (emphasis 89 S.Ct. 1404 if It’s as may justifications states offer different plaintiffs disregard the Constitution’s clear early existence or absence of in-person (and mandate that the states not same-day or registration, and do courts) establish election protocols, instead suggest that may Ohio escape chal- reading the document require all states lenges regulations to election simply by maximize convenience. Under pointing to the least accommodating state conception role, of the federal courts’ and saying, Rather, do it ‘We better.” little imagination stretch of is needed to reject the notion comparisons that such fast-forward and envision a regime judi- irrelevant, are they provide as a contextual cially-mandated voting by text message or basis for determining whether the “bur- course, (assuming Tweet cell den” said to fall here disproportionately on phones and Twitter dispa- handles are not some African-American properly voters is rately possessed by segments identifiable non-existent, minimal, characterized as or voting population). limited, modest, or slight, or signifi- or or ignored district court Ohio’s nation- cant, enormous, besides, or severe. And al leadership affording privileged voting Ohio is not simply arguing practices opportunities, believing comparison Instead, better. State officials are defend- Ohio’s early-voting system to that of other ing a voting practice liberal absentee states was irrelevant under Anderson-Bur- participation by all members dick. failWe to see the merit in facilitates wearing the voting public, including those “socio- comparisons blinders. While with the laws economically disadvantaged groups,” see experience other states not be Opinion Page ID challenged determinative of a law’s consti- tutionality, background, whatever race or ethnic ignore such information irrelevant needlessly is to manner poten- accommodating forfeit a more than the tially valuable tool in construing apply- states, practices of most affording other 2016), Day Registration, 3. See Same Voter http://www.ncsl.org/researcb/elections- National Legislatures Conference (May of State and-campaigns/same-day-registration.aspx. day. to an absen- To the extent S.B. 238 be viewed “no-questions-asked” a litany ways to use it. preferences, tee ballot and a its “bur- impacting as such clearly more a “matter den” results from Thus, the evaluating magnitude the than a obsta- of choice rather state-created “burden,” that elimination of Gold- find Frank, Equal F.3d at The cle.” remains, part of what en Week is a small Clause, applied Protection as under viewed, early objectively generous voting framework, simply can- Anderson-Burdick 238’s elimi- schedule. The notion S.B. reasonably not be understood as demand- day registration disparately nation of same ing recognition and accommodation of such more a “minimal” imposes anything than ig- personal African if the preferences, on some Americans variable even alter- and convenient nores abundant to preferences are shown be shared natives that remain for all Ohioans who higher by of certain numbers members wish to vote. segments voting public. identifiable options numerous available Consider the also conclude that elimination We voters, all African Ameri- including to Ohio same-day resulting registration cans, conveniently to cast a ballot before register to vote on need Ohioans of “no-ex- Day. Election State’s use is, most, separate minimally occasions provides any inter- cuse” absentee ballots voting burdensome. Like before 'Election the chance to cast a ballot ested resident Day, registration easy. Ohio makes also Day more than weeks before Election four conveniently are dis- Registration forms mail, and more three weeks before throughout tributed its communities at the prefers Day Election if a voter to do so in boards of elections offices as well as § More- person. Ohio Rev. Code 3509.01. locations, li- many other “local including over, early in-person voting this schedule braries, city many municipal Saturdays, Sundays, includes two two halls, high be schools”-—and can even days ten until permitted when county from R. Per- printed websites. p.m. either or 7:00 p.m. 6:00 voters —for Tr., ID 4067.4 if isn’t Page latti And mail,” of voting by who are “distrustful R. enough, Secretary of State mailed ab- Page Opinion at ID who are every to applications sentee ballot almost initiatives, to the assisted “Souls Polls” registered past voter in the state in the ID find Page struggle who time to do plans two elections and so wage Page ID away “hourly jobs,” Thus, election. Id. even without Golden merely prefer or to save on who Week, registration voting pro- Ohio’s postage. And these accommodations cesses for all afford abundant direct result of the settlement reached in voters, or ethnic Ohio of whatever racial specifically designed NAACP which was background, register and their exercise African- accommodate voters Ohio’s right to vote. American Set- communities. See tlement, Page ID 6775-77. then, no surprise Supreme It’s that the rejected analogous an Court placed district inordinate Crawford undeniably challenge more burden- finding on African- weight that some law on this sort of “burden of some based may prefer voting American voters mail, making trip argument. to vote” Sundays, avoiding saving oh second or or first postage, going or after nine-to-five work The Court held that ' recently passed permit- number identification 4. Ohio has also a law their driver’s license online, ting long proof identity. register they card establish See voters to so number to 9/13/2016). (2016) (effective security input verify their social number and casting accept Bureau of Motor Vehicles and then fused to bare assertions that “a ultimately a ballot was no more “burden- small may number of voters ... experi- than challenges voting. some” the usual a special ence burden” and instead looked Crawford, 553 U.S. at 128 S.Ct. to the statute’s application” “broad to all (the (Stevens, J., op.) “inconvenience state in concluding voters the law .BMV, making trip gathering to the imposed “only a limited burden on voters’ documents, required posing and for a rights.” Crawford, 200, 202-03, 553 U.S. at n photograph surely ... rep- does not even (Stevens, J., 128 S.Ct. 1610 op.). significant resent a over increase the usual application of Anderson- Crawford voting,” though burdens of even “a some- Burdick is consistent precedent with our may placed what heavier burden be on a recognizing broadly applicable and persons” including limited number of non-discriminatory presumed laws are elderly, economically disadvantaged, pass constitutional muster: “If the State homeless). Scrounging up and the a birth had enacted a generally applicable, nondis- certificate, BMV, making tripa to the and criminatory voting regulation that limited obtaining photo surely ID cannot be in-person early voting voters, for all Ohio considered less “burdensome” sub- ‘important regulatory interests’ would mitting virtually one of ubiquitous Ohio’s likely be justify sufficient to the restric- (which registration cards can be mailed America, tion.” Obama 697 F.3d at for back, dropped person, off or returned Burdick, 433-34 (quoting 504 U.S. at another) enjoying the convenience 2059);5 112 S.Ct. see Washington also early of a voting no-excuse absentee on Grange State v. Washington Repub- State any twenty-nine one of Ohio’s voting days. Party, lican 552 U.S. Therefore, viewing objectively S.B. 238 (2008) (“If 170 L.Ed.2d 151 a statute under the Anderson-Burdick framework in imposes only burdens, however, modest a manner consonant with the Court’s most then important the State’s regulatory in- recent application of the framework generally terests are sufficient to justify Crawford, we see a regulation that can reasonable, nondiscriminatory restrictions only be characterized as minimally burden- (internal procedures.” on election quota- some on of some African-Ameri- omitted; added)). tion marks emphasis can Beyond voters. evidence that African fact, recognized, Court also' Crawford may early Americans in-person voting use that it had “applied Anderson's standard at higher rates than other voters and reasonable, for nondiscriminatory restric- theoretically therefore be disadvantaged tions upheld prohibition Hawaii’s on by reduction of early voting period, write-in voting though actually even pre- record does not establish that S.B. 238—as significant vented a number of voters from opposed to non-state-created circum- participating in Hawaii elections in a actually makes harder for stances — meaningful Crawford, manner.” African Americans. point Plaintiffs do not (Stevens, J., op.) 128 S.Ct. 1610 any who, post-S.B. individual will (internal citation quotation marks precluded be voting. Without suffi- added). omitted; emphasis cient evidence to “quantify mag- either the Considering generally nitude of the applicable burden on this narrow class of voters or portion non-discriminatory nature of S.B. 238 fully justified,” light generous Court re- of Ohio’s absentee Crawford America, 5. Obama military personnel voting days 697 F.3d at held additional was facially that a discriminatory granting unlikely scrutiny. law to survive constitutional “sufficiently weighty” terests still system provides which extensive system, are. voters, justify Afri- including all it. opportunities for Americans, cast their ballots short can four Ohio contends S.B. 238 serves Day, out Election we hold coming “(1) legitimate preventing interests: voter only in minimal 238 results a that S.B. fraud; (2) (3) costs; reducing reducing ad Americans’ to on African burden (4) burdens; increasing ministrative and Burdick, 434-37, 112 504 U.S. vote. See voter voter con preventing confidence Hawaii’s on (assessing ban S.Ct. 2059 117, 49, Opinion Page fusion.” R. ID light candidates in votes for “write-in” rejected 6171. The district court Ohio’s “easy to the the State’s otherwise access justifications, noting they may that “while Council, ballot”); 814 F.3d at 335 Ohio legitimate,” be the State’s “insufficient evi judicial restrictions on (holding that ballot “minimal, they dence” are unsup shows only minimal imposed burdens candidates ported, accomplished by or not S.B. 238.” parties gave because Ohio law political 56, Page Id. at ID 6178. The district court cham- “many opportunities other parties much. regulations demanded too For nominee[s]”). We therefore re- pion [their] unduly burdensome, are not the Anderson conclusion that S.B. ject the district court’s analysis never requires Burdick a state to a “modest” burden. We next imposes 238 “the the ‘evi actually prove sufficiency of interests adopting look to the State’s ” dence.’ v. Par Munro Socialist Workers 553 Crawford, See U.S. at regulation. ty, 479 U.S. 107 S.Ct. J., (Stevens, op.). S.Ct. (1986) that a con (explaining L.Ed.2d trary invariably lead rule would “would Interests C. State’s battles sufficiency endless court over the minimally Because S.B. 238 burden ”). Rather, of the ‘evidence’ at least with nondiscriminatory, apply we some respect minimally regula to a burdensome ra of review akin to deferential standard review, tion triggering rational-basis only need tional basis and Ohio advance accept justification’s sufficiency “leg as a regulatory satisfy interests” to “important findings and defer islative fact” to the analysis. Bur the Anderson-Burdick See findings so legislature long Ohio’s as dick, 2059; 504 U.S. at 112 S.Ct. Ohio Frank, are reasonable. See 768 F.3d at Council, (plaintiffs bear 750; Munro, see also 479 U.S. at “heavy constitutional burden” to demon minimally that a strate state’s burdensome Voter Fraud and Public unconstitutional). Here, law is the interests Confidence. justifies by asserting Ohio first S.B. 238 to, analogous advanced State for voter opportunity it decreases better and even substantiated than those same-day registration fraud arising It accepted sufficient in fol Crawford. during Week. The district court Golden present pass lows that the State’s interests combating po- discounted Ohio’sinterest in they jus muster Anderson-Burdick-. under because, general tential fraud “while tify potentially the minimal visited that Golden opinion evidence [showed] on some African-American voters as a re Week increases the for voter However, even if sult S.B. 238. we were fraud ... actual instances of fraud accept the district court’s characteriza voter extremely rare” “modest,” during Golden Week are of the tion burden as which very limited evidence of voter conceivably slightly trigger “[t]his less deferen justify fraud the modest tial review “flexible” is insufficient under the Anderson- framework, 238.” proffered imposed Burdick Ohio’s in- burden (Stevens, 49, Page J., ID But Opinion op.). 6171-72. we do S.Ct. 1610 Unlike the elaborate, verifica “require empirical court, district we adhere to Crawford’s weightiness State’s tion of the as approach and conclude that the State’s justifications.” serted Timmons Twin purpose preventing potential fraud and Party, Cities Area New public promoting confidence is in further- (1997). 137 L.Ed.2d 589 ance of legitimate important regulato- Moreover, totally a view is irreconcil such ry interests. Crawford, able with which an un upheld only district court was not dissatis- regulation more questionably burdensome evidence, fied with also Ohio’s but with in-person all Indiana requiring voters potential Ohio’s of combatting method present “photo maintain and identification fraud. Part of the State’s fraud-based ra- government” issued even where the tionale bipartisan arose from the OAEO no any contain[ed] “record evidence of that early voting begin recommendation actually in Indiana occurring such fraud at only registration, after the close of because any history.” Crawford, in its time 553 overlapping registration voting peri- (Stevens, J., at 128 S.Ct. 1610 ods great- were deemed to “the constitute op.). had “no question The Court about the 103, est time for voter fraud to R. importance occur.” legitimacy or of State’s counting only Tr., 5329; 104, in of ID eligi interest the votes Ward Dam- Page R. voters,” 1610, at ble id. 128 S.Ct. Tr., Page ID (explaining schrdder risk because “the of voter fraud real [is] “presented that Golden a unique Week ... could affect the outcome of a [and] could, risk for fraud person voter where a election,” the close Court declined to ex event, moment, one one register at at both amine Indiana’s total lack of evidence vote, to an request absentee ballot and photo actually identification law would cast an disap- absentee ballot and then preclude way designed fraud was pear”). S.B. 238 addressed concern this 195-96, 128 to. Id. at S.Ct. 1610. eliminating same-day regis- Week’s Golden Here, inconclusive, offers Ohio but con- court, relying tration. The again district during crete of voter evidence fraud Gold- NAACP, our vacated decision same-day en registration period. Week’s efficacy eliminating at attacked working Under teaching, to Crawford's same-day registration targeting poten- “sufficiently goal weighty” achieve that is by pointing hypothetical tial fraud to a justify interest to the minimal burden ex- voter still vote register who could perienced by some African-American vot- days election return to before the and then Crawford, ers. 553 U.S. at early in-person the 29th cast ballot on (Stevens, J., op.). Running in tandem day theory, voting before the election—in with the in preventing State’s interest vot- completed before the board elections related, closely er fraud but indepen- is its process. Opinion mail verification R. justification dently significant for eliminat- 51, Page ID 6173. ing registration: same-day safeguarding Yet, respect to (especially our task with public by eliminating ap- confidence “even laws) neither to minimally burdensome pearances of fraud.” The court Crawford impose “to approach, craft the “best” nor justification accepted practically democracy the Ohio upon our own idea of true, self-evidently observing that a state’s Party, legislature.” state Libertarian system inspire public “electoral cannot 587; Crawford, F.3d at also 553 U.S. see safeguards if no confidence exist deter (Stevens, J., op.) or identity detect fraud to confirm the (“While Crawford, pre- voters.” the most effective method Again, elections. the district on boards of fraud well be debata- venting election rejected justification the State’s be- ble, doing perfectly so is propriety support of that clear.”)-6 Rather, “only cause the evidence simply call balls and we Associa- that in the Ohio strike zone notion generous [was] apply strikes and Officials task [OAEO] and tion of Election legitimate articulates when the state force, con- of these administrative minimally aware justifications for bur- reasonable cerns, early voting be- densome, non-discriminatory regu- recommended election Day” twenty-one days before Election gin to State weight afforded lations.7 Given (even prove failed to fraud and the State targeting potential measures manage” the be “unable to Crawford; boards would evidentiary support) without associat- burdens and costs to scruti- administrative the Court’s hesitation given 117, Opinion with Week. fraud-fighting effec- ed Golden regulation’s nize the n.18, ID Page tiveness, goal reducing 55 & accept Ohio’s reg- “important fraud as an potential voter too Again, the district court demanded justify ulatory interest” sufficient Supreme agree rather with the much. We in this case. See minimal burden identified legislatures permit “should be Court that Moreover, Council, 814 F.3d at 338. Ohio respond potential deficiencies ted justifications. offers additional Ohio foresight with rather process the electoral Munro, 195, at reactively.” 479 U.S. Asserting that Burdens. Administrative that a Requiring “[s]tate’s 533. extremely busy are S.Ct. its boards of elections level of dam ballots, political system sustain some running ballots finalizing with legislature could take cor “logic age and before the voting machines for through nor con practical, rective action” is neither testing,” processing registra- accuracy we note stitutionally compelled. Again, Id.8 near the close of tion wave that arrives minimally that is burdensome recruiting training S.B. 238 registration, and non-discriminatory, and is there workers, facially justifies Ohio S.B. 238 poll if it equal protection fore not violative of of the need to bal- reflecting a realization “important regulatory interests.” with the burdens advances early-voting options ance representatives rhetorically, democratically-elected "if 6. Ohio witness asked As one balloting you says weigh there’s a get pros a weather forecast that and cons of various rain, you open do run around systems. long chance of is reasonable So as their choice you open your neutral, so have a wider all windows judicial second- it is free from window, your you close all windows or do guessing.”). R. rain[?]" when there is a chance of Tr., Page elimination of Ward ID 5329. Ohio’s regarding the district 8.The is true same mitigate po- same-day registration to limit or rejection outright of Ohio's cost sav- court’s step, even if it tential fraud is a reasonable Though saving ings arguments. tens of thou- possibilities fraud. will not erase all of a "minimal” benefit of dollars be sands compared the overall election bud- when Hearing Judicia- e.g., 7. Before the Senate See 53-54, Page Opinion ID 6175- gets, Comm, ry the Nomination of The Honor- on the district court's dubious and reject U.S.C.J., Roberts, G. to be the Chief able John proposition that "where more than blanket States, Cong. the United 109th Justice of established, minimal burdens on voters 12, 2005), (Sept. http://www. available that such costs the State must demonstrate washingtonpost.com/wp-dyn/content/article/ Id. at 6176 actually be burdensome.” would (state- 2005/09/13/AR2005091300693.html NAACP, 548) (emphasis (citing 768 F.3d Roberts) ("[I]t’s my job to ment of John G. added). only responsibility, in- even if Fiscal pitch and strikes and not to call balls served, undeniably legitimate crementally bat."); Shelley, Weber v. 347 F.3d see also legislative purpose. 2003) ("[I]t job and reasonable is the Council, prof preference at 338. Ohio’s Court’s ruling and a for Ohio fraud, voter preventing interests of fered dissenting view of To the Justices. extent increasing eliminating voter confidence court, NAACP, the district by relying on fraud, and easing of voter appearances effectively reasoning resuscitated at odds administrative burdens boards of elec Crawford, with holding the district undoubtedly “important regulato tions are ignored a fundamental of our “hier- interests,” Crawford, see 553 U.S. at ry judicial system,” precludes archical which (Stevens, J., op.). 128 S.Ct. 1610 “declaring] a lower court from a statute provide ample The State’s thus interests just unconstitutional because thinks [it] justification. plaintiffs We hold have ... was .dissent and the “heavy constitu failed establish their Frank, majority wrong.” 768 F.3d at demonstrating burden” of that S.B. tional Council, 238 is unconstitutional. Ohio neutral, evaluating “When non F.3d at 338. discriminatory regulation proce note, As a final the district court failed dure, must mind keep ‘[w]e that [a] evaluating to consider when Crawford ruling unconstitutionality frustrates the nearly interests due to its wholesale Ohio’s representatives intent of the elected on our vacated decision in reliance Crawford, people.’” 553 U.S. at NAACP, great lengths which went to J., (Stevens, op.) S.Ct. 1610 (quoting Ay ready distinguish acceptance of Crawford’s otte Planned Parenthood Northern voter fraud and voter confidence as suffi- 320, 329, 126 Eng., New 546 U.S. justifications regulation cient (2006)). 163 L.Ed.2d 812 prefer Plaintiffs imposed only a burden on “limited voter’s adopt any that we rule that expan broad rights.” Crawford, voting rights must remain sion on the (Stevens, J., op.). S.Ct. 1610 To the extent books forever. Such a rule would have a decision, it relied on our now-vacated chilling process: effect on the democratic court NAACP is a district erred. different would pass states have little incentive to case, as S.B. time still 238 that included if, expanding bills access voting once in Secretary Directive of 2014-17 State’s. they could be in place, never modified a evening voting that all “elimináte[ed] way might arguably that burden seg some non-presidential hours for elections and [ ] right ment of the voting population’s Sunday provided] only [early one of in- NAACP, Accepting “long recognized ... 539; vote. person] voting.” 768 F.3d at 127-14, Settlement, PID see 6775-77 role of the States as laboratories for devis (removing Directive ing 2014-17 establish- legal problems,” solutions to difficult schedule). ing an agreed-upon Legislature Arizona State v. Arizona In — analyzed NAACP therefore Ohio’s law as Comm’n, U.S.-, dep. Redistricting a imposing “signifi- one was 192 L.Ed.2d 704 severe,” although requiring cant more (2015), imposing such a hold that one- justification than the “modest” burden the way with incompatible ratchet is the “flexi case, district court this identified framework. ble” Anderson-Burdick interest be we here hold to minimal. The Applying Anderson-Burdick district therefore used NAACP as an justifications we hold that the State’s easi- imperfect legend, applied it to a differ- ly outweigh sufficiently justify map. ent Its reliance on the vacated may minimal burden that some voters ex- Moreover, NAACP decision was not sound. perience. Accordingly, plaintiffs’ equal pro- opinion the vacated in NAACP evinced a challenge certain dissatisfaction with the tection fails and the district Crawford 636 must, in in the respect, political this be State or subdivision

court’s decision consid- reversed. one which be circumstance Provided, sec- nothing ered: That Rights Voting III. Act right a to have members tion establishes A. 2 Section in numbers protected of a class elected equal proportion popula- in the also that S.B. their The district court held Act, Voting Rights § violates 2 of the tion. § originally passed, As U.S.C. 10301. (bold 10301(b) § emphasis add- 52 U.S.C. (“VRA”) interpret- Act

Voting Rights was ed). prohibi- retained a text therefore only discrimina- prohibit ed to intentional un- discrimination against tion intentional Bolden, City v. tion. Mobile of 2(b) 10301(a), § der but added Section (1980) 1519, 64 L.Ed.2d S.Ct. unequally open political processes. cover However, Congress amend- (plurality op.). City Indianapolis, Baird v. See Consol. test, to add ed the law in 1982 a “results” (7th 1992). Cir. As 359-60 showing a discrimi- making intentional 2(b) stands, currently encompasses Section unnecessary. nation See Moore v. Detroit claim, types two of claims: a “vote-dilution” Bd., 293 F.3d Sch. Reform alleges districting practice a which 2(a) 2002). amended, pro- As Section equal “to opportunity denies minorities an “imposing]” or hibits state choice,” of their representatives elect “voting “applying]” any qualification or claim,9 alleges the a “vote-denial” which standard, prac- or prerequisite to “participate denial tice, ... procedure or which results in a process.” See 52 U.S.C. political right any abridgement denial or 10301(a)-(b). § to vote on citizen the United States majority interpreting of cases Sec account of race or 52 U.S.C. color[.]” context, tion arose in the vote-dilution 10301(a) added). § (emphasis The statute deci epitomized by Supreme Court’s 2(b) voting pre- that a explains Section Gingles, Thornburg sion standard, practice, requisite, procedure (1986) 47-52, 106 92 L.Ed.2d 25 is deemed to “result such denial or evaluating (establishing framework for ... to vote on abridgment of the at- jurisdiction’s of an claims use account of race or color” if: system or or large multimember electoral circumstances, totality on the of [Biased votes, redistricting plan minority diluted political processes it is shown that minority thereby diminishing ability leading or to nomination election their groups representatives to elect are political State or subdivision choice). jurisprudence While vote-dilution by equally open participation mem- to well-developed, is numerous courts protected bers of class of citizens a applying noted commentators have (a) in that its members subsection 2’s test” vote-denial Section “results to have other less challenging, and a clear standard claims partici- of the electorate to members application has not been conclusive for its pate political process to Abbott, Veasey 830 ly established. See v. representatives elect of their choice. 216, 243-44, *17 2016 WL pro- F.3d 3923868 The extent to which members of 2016) (en banc) (“[Tjhere (5th July tected class have been elected office Cir. (en (5th July Cir. claims sometimes referred 3923868 *63 Vote-denial Veasey "vote-abridgment” J., banc) (Jones, to as claims. See v. dissenting). Abbott, 216, 303-04, F.3d 2016 WL 830

637 2 proper helpful evaluating test to work is authority on the Section is little claims, right to vote vote-denial whether the has but warrants clarifica- determine on account of tion.10 abridged denied or been

race”); Galvin, v. 575 see also Simmons essentially step The first reiterates 2009) (“While (1st 24, 42 n.24 Cir. F.3d requirement Section 2’s textual that a vot progeny generated and its have Gingles ing actionable, practice, standard or to be dilution, for standard vote well-established must result in an disparate impact adverse denial satisfactory test for vote cases protected class members’ opportunity 2 yet emerge.... under Section has participate political process. in the But seminal Supreme opinion Court’s [and] this formulation cannot be construed Gingles ... is of little use in vote denial suggesting that the existence of a dispa (internal marks omit- quotation cases.” itself, impact, rate in and of is sufficient to (“A NAACP, ted)); at 554 768 F.3d clear injury establish cogniza the sort of that is for /Section vote denial claims ... test ble and remediable under Section 2. See 52 emerge.”); Tokaji, Daniel P. yet has (a)-(b). § U.S.C. -We know this is Vote Denial: Where Election New Reform showing true “a of disproportion because Act, Voting Rights 57 S.C. L. Meets racial impact ate alone does not establish (same). (2006) 689, 709 Rev. per se violation” Section 2. Wesley v. plaintiffs’

The district court evaluated (6th Collins, Cir. claim on a frame- relying vote-denial 1986); Arizona, see also Gonzalez in our work first articulated now-vacated 2012) (en banc) F.3d case, panel NAACP decision. In that (“[A] § 2 challenge purely based aon the “text of Section and the limit- viewed showing of dispar some relevant statistical requiring proof case law as ed relevant ity whites, between minorities and without elements to a vote denial two make out any challenged voting evidence that claim”: qualification disparity, causes that will be standard, ... the challenged prac-

First (internal rejected.” quotation marks and tice, procedure impose or must a dis- Frank, omitted)); citation criminatory burden on members of a (Section 2 “does not condemn a class, meaning protected that members just practice disparate has a because protected opportu- have less class (If things effect on minorities. were that nity than other of the elector- members simple, there have wouldn’t been a need participate political process ate Gingles to list nine fac non-exclusive representatives and to elect of their cases.)”). tors vote-dilution Accordingly, choice; [and] of a proof disparate impact amounting to — ... must in part Second be protected abridgement denial class by or caused linked to social and histori- right to vote—that members’ results from or currently cal conditions that have challenged practice or the standard is nec against produce discrimination members essary to first satisfy the element of the protected the of class. test, a but is not sufficient to establish (internal NAACP, vote-denial-or-abridgement Section 2 768 F.3d 554 citations valid omitted). quotation emphasize marks This frame- claim. We therefore that the 2014); Veasey, 10. The Fourth and Fifth Circuits have used 830 F.3d 2016 WL claims, Frank, 2 *17; this framework to evaluate Section 3923868 at see 768 F.3d at but adopt the Seventh Circuit declined to but has (expressing skepticism 754 about the causal League it. See Women Voters N.C. v. of of requirement step). in the.second Carolina, (4th 240 Cir. North 638 erroneously 2 re- be understood to mean the Section claim could element of

first challenged the standard proof disparate impact that that is quires alleged al- causally to the contributes practice or linked to social and historical conditions discriminatory impact by affording leged if out a But makes Section violation. opportunity members group less protected step step divorced from the first second is process. participate political to by the requirement of causal contribution itself, it challenged practice or is standard met, If first element is 2 and incompatible the text of with Section triggering into step play, second comes incongruous Supreme prece with Court “totality of circum of the consideration Thus, just step the second asks not dent. stances,” by the “Sen informed potentially social and historical conditions whether This ate Factors” discussed Gingles.11 impact, in” a disparate “result but wheth Gingles explained, Court inquiry, as the test,” challenged voting prac er the standard or designed to restore “results discriminatory whereby challenged impact law or structure— causes the as it a tice or maintained for a designed not albeit with and historical condi interacts social discriminatory purpose be deemed to 10301(a)-(b) (provid § tions. See U.S.C. —can deny right if the law abridge or to vote actionable, that, to a stan ing be effect, has the as it interacts or structure (i.e., practice in” dard or must “result conditions, of social and historical with cause) discriminatory impact op on the causing inequality opportunity in the racial of class portunity protected members 43-47, 106 Gingles, vote. 478 U.S. at political in the see “participate process”); words, facially neu 2752. In other Gingles, 478 U.S. 106 S.Ct. also tral, nondiscriminatory prac standard or 2752; League United Latin Am. Citi disparate impact, in a but tice results zens, Clements, Council No. be actionable as an would not otherwise (“[Socioeco F.2d abridgment or of the impermissible denial disparities and a history nomic of discrimi vote, as an becomes actionable nation, more” are without insufficient abridgment pursu or impermissible denial nexus). causal establish Section 2’s 2(b) where, in response ant to Section construction foregoing of Section step inquiry, impact disparate two only statutory to the text is not faithful to vote is to result shown legislative history to in referred Gin- law, only operation from but gles, practical but also makes sense. Con social from interaction the law arid versely, to apply Section to invalidate pro have and historical conditions that regulation innocuous based duced discrimination. State’s solely that social on evidence and historical NAACP, As formulated the second impact in a disparate conditions resulted step alleged disparate asks whether impermissibly punish for the would a state is “in caused or linked to impact part private Texas effects discrimination. ‘social and historical conditions’ have Cmty. v. Inclu Dep’t Hous. & currently produce discrimination Affairs —Inc., Project, sive Communities class.” against protected members 2523, 192 -, NAACP, L.Ed.2d 514 in iso- 554. Read (2015) lation, that that entities (explaining state step this formulation the second disparate impacts to Gingles derive dilution cases to link 11. The "Senate Factors” Report amend- current or historical conditions of discrimina- a Senate related to the 1982 43-45, Rights Gingles, 478 U.S. Voting are some- tion. See ments to the Act and 2752, 92 25. proxy in vote- S.Ct. L.Ed.2d times used as a non-statistical dispar- should not be “held liable for racial American voter turnout “either exceeds or create”); they Ohio”). ities did see also Millik- is the same as white turnout 3112, Moreover, Bradley, en v. plaintiffs not dispute do the evi- (1974). 41 L.Ed.2d 1069 therefore clari- We dence that all voters who used Golden fy that S.B. 238 is actionable as regardless race, a Section Week just were only causally likely violation if it is shown to to vote in 2014 without Golden contribute, Tr., as it interacts with social and Week. R. McCarty Page ID 4141- produced historical conditions that have 42 (explaining that people “those who vot- discrimination, disparate impact to a day ed on an eliminated were no likely less African opportunity partici- Americans’ vote 2014 than someone who had pate in the political process. See 52 preserved day”). U.S.C. voted on a 10301(a)-(b). § This statistical evidence takes on even greater significance when we consider Disparate Impact B. the 2014 data registration reflects and vot- The district paid little atten ing implemented, 238 was but after tion to the disparate impact element of the the NAACP settlement added before step, first referring simply prior to its Sunday additional and additional analysis Anderson-Burdick to conclude night is, and weekend hours. That “imposes that S.B. 238 a burden on the statistical evidence shows that African rights of African Americans to vote” and participation Americans’ equal was least assuming that conclusion was sufficient to to that of white voters in 2014 under a establish that disparately impact S.B. 238 version of S.B. afforded even less ed African in a cogniza Americans manner convenience than the current version. The ble under Section R. Opinion 2. statistical directly evidence thus runs con- Page ID 6220. But hasty conclusion trary to the district speculative court’s neglected the first step inquiry: of our conclusion that the current S.B. 238 would actually whether S.B. 238 im disparately disparate have a impact adverse on Afri- pacts African by resulting Americans participation.12Instead, can Americans’ “less African [for Americans] statistical evidence clearly rather shows than other members of the electorate to that any S.B. 238 did not result in cogniza- participate in political process.” 52 ble, racially disparate impact such 10301(b). § U.S.C. African Americans were afforded op- “less fact,

In compared when portunity to other mem- than other members of the electorate, bers of the the statistical participate evi- electorate to political clearly 10301(b). dence in the record process.” § establishes that 52 U.S.C. Plaintiffs political processes Ohio’s equally open are offer no contrary statistical evidence show- 2008, 2010, 2012, to African In Americans. ing disparate impact, merely argue but African registered Americans that the relevant expert report contains a higher whites, percentages than large margin registra- both of error for black groups’ registration rates, rendering probative numbers statisti- tion “the value cally indistinguishable every federal Appellee this evidence limited.” Br. at election since Hood Rebut- 29. Though acknowledge argument, tal, Page ID (noting plaintiffs’ 7366-67 that African- otherwise unsubstantiated criti- only exposes 12. The statistical evidence not also further substantiates our assessment that the error in as, the district court’s uncritical bor- properly the burden is characterized rowing of its "burden” conclusion from most, "minimal,” not "modest.” claim, analysis equal protection but (EIP) eliminating same voting and person evi- reliability of the record cism of (SDR)), enjoined. to meet their burden which day registration dence is insufficient in a 238 results establishing decision, majority that S.B. reversing In this a actionable as impact racially disparate an incorrect standard opinion employed Frank, See violation of Section tests, applied and new review and created at 754. of those by precedent, instead unadorned have found have our sister Circuits plaintiffs hold that that we and therefore

We establishing step the first cases such as failed to meet to voter denial applicable claim under abridgement a vote denial dissent. respectfully one. I therefore They Act. Voting Rights 2 of the Section governing law addressing the Before cognizable dispa- to establish have failed us, I record before light of the extensive step Consequently, second impact. rate assumptions that to address the need causal interaction of inquiry regarding This case is majority’s opinion. frame condi- and historical 238 with social S.B. improper intrusion portrayed as is discrimination produced tions that have and micro- federal courts “as overseers have failed to estab- Plaintiffs immaterial. minutiae of state election managers, in the Voting Section lish a violation of In disagree. I processes.” (Maj.Op. contrary court’s Rights Act. The district 216, 279-80, Abbott, Veasey v. and must be re- is in error conclusion July at *44 2016 WL versed. banc) 2016) (en J., concurring), (Higginson, IV. CONCLUSION fitting answer provides the Fifth Circuit why healthy it is charge. explains It to this Accordingly, we conclude voting regu of State to scrutinize the river oppor- convenient affording abundant and in the wake of that has flowed lations to exercise their for all Ohioans tunities — Holder, -, vote, County v. Shelby well within the constitu- right to (2013): authority and tionally granted prerogative L.Ed.2d 651 state Legislature regulate of the Ohio be seen not as scrutiny should “Such It not run afoul of processes. does election judicial rejection legisla heavy-handed Voting Protection Clause or the Equal process of a priorities, part but as tive Act, inter- those laws have been Rights fun with the "harmonizing priorities those voting regulations preted applied and topic with which right damental to vote—a the Su- instructive decisions the most of. of our Constitution’s quarter over a The district court’s award preme Court. way or an dealt one amendments have invalidat- declaratory injunctive relief other, that cannot an individual enjoining enforcement of S.B. ing and im an adverse compromised because be judgment and its must be VACATED relatively few rather falls on pact be, extent, REVERSED. must to this many.” advances in grows from explanation This STRANCH, Judge, dissenting. Circuit systems. Take the legal both our social today majority opinion overturns literacy required of states that example con- the district court decision which vote, Supreme our practice tests considering trial 10-day ducted a bench the “wisdom” of challenge Court refused witnesses, in- more than 20 testimony of that, “Literacy 1950s, on the basis in the ultimately experts. It cluding at least 8 obviously synony- intelligence all of Plain- pages dismissing penned intelligent be people mous. Illiterate elim- except challenges tiffs’ to S.B. newspa- society where Yet in our early in- voters. (reducing ination of Golden Week books, printed and other social pers, periodicals, legal Our advances as a soci- campaign canvass and debate is ety matter are reflected in Supreme the Court’s sues, might only a conclude that State during decisions the 1960s that accepted a those who are literate should exercise the searching scrutiny review and voting Northampton Cty. franchise.” Lassiter v. regulation as necessary. “The Voting Elections, 45, 50-53, Bd. 360 U.S. 79 Rights subtle, Act was aimed at the as well (1959). 985, By obvious, 3 L.Ed.2d 1072 S.Ct. regulations as the state which 1960s, the that recognized Court a “[w]hen have the effect of denying citizens their wholly power State exercises with right to vote because of their race.” Allen interest, Elections, domain of State is insulated 544, 565, v. State Bd. 393 U.S. judicial (1969). from Federal review. But such in S.Ct. L.Ed.2d 1 Follow- sulation is not carried over when ing VRA, State the 1982 amendments to the power is used as an instrument for circum explained Court both the fullness of the venting federally a protected right.” Gom required review why and the reason such 339, 347, Lightfoot, v. illion 364 U.S. 81 scrutiny is essential: (1960). S.Ct. 5 L.Ed.2d 110 In The need for such “totality” review people the men and women the American springs from the ingenu- demonstrated to Congress passed Voting elected ity of state governments and local (VRA) Act Rights expressly providing for hobbling minority voting power, McCain oversight voting regulations of state Lybrand, 236, 243-246[, 465 U.S. outlawing literacy Testimony by tests. At (1984), 79 L.Ed.2d 271] torney General Nicholas Katzenbach dur point recognized by Congress when it ing passage explained why: of the Act amended the statute in 1982: “[S]inee really

Whether there is the adoption Voting Act, valid basis for Rights literacy subject jurisdictions the use of ... [some] tests is have substantially direct, legitimate question. But it is not for moved from impediments over[t] proposed legislation reason to the to vote to sophisticat- more seeks to places. minority abolish them certain ed devices that dilute Rather, we strength,” Report seek to abolish these tests Senate 10 (discussing 5). they § In modifying Congress § because have been used those thus places as a device to endorsed our view in Regester, discriminate White v. 755[, against Negroes ... 412 U.S. 93 S.Ct. 37 L.Ed.2d (1973), 314] that “whether the political today enlarge Our concern is to repre- processes ‘equally open’ depends government. sentative It is to solicit the upon searching practical evaluation of governed. consent of all It is to ” ‘past present reality,’ Senate increase the number of citizens who can Report 766, 770, (quoting 412 U.S. at vote. irony What kind of consummate 2332). 93 S.Ct. would it be for us to act on that con- ballot, doing cern—and so reduce the Grandy, Johnson v. De to diminish democracy? (1994). It would not 129 L.Ed.2d 775 ironic; only be it would be intolerable. recognize, As numerous cases those who Voting Rights: Hearings on H.R. Be- seek to against segment discriminate 6k00 Comm, H. Judiciary, population trumpet 89th the do not their inten- fore (1965) (statement Cong. 16-17 of Nicholas tions—or do not do publicly. so The 2006 Katzenbach, deB. Attorney General of the amendments to the VRA identified our . States). United progress continuing prob- as well as this 6161), during Golden “specifically PagelD “vestiges of discrimination lem, noting (id. ultimately It held as demonstrated to exist Week.” continue of Golden Week constructed 238’s “elimination generation barriers by second fully par- from the minority voters a modest burden —which imposes prevent to H.R. process.” electoral in the more than minimal but ticipating defines as a Court (2006), reprinted as Rep. right No. the burden —on significant less than (R. in 2006 U.S.C.C.A.N. of African Americans.” to vote 6156-57) an example, expert For PagelD to struggled has case law our While based on of individual level data analysis practically and judges can how articulate largest within three of the census blocks review state laws appropriately should nearly contain vote, counties Ohio—which right to the fundamental governing minority popula- the state’s beyond a two-fifths of steadily progressed we have African the that “the rate which to review tion—found that refused wis standard employ proce in 2010 and choice EIP of a State’s Americans used dom tests, that function dures, literacy as than the white slightly higher such was I not 6159) voters. do (id. selected rate,” “usage to disenfranchise and that the or micro intrusion that it is federal think far specifically week were rates of Golden procedures to evaluate election managing than among African Americans higher lurks in an if discrimination to determine (Id.) and 2012.” among whites in both 2008 detail. Our in a subtle rule or obvious in 2008 for usage rates The Golden Week shy away does jurisprudence recent black census blocks homogeneous 100% to pro that is essential scrutiny than 100% white higher was 3.514 times vote, right to of the fundamental tection (Id.) In the Golden Week blocks. difficulty of the though recognizes for ho- higher 5.186 times usage rate was any ‘litmus applying “Rather than task. (Id.) blocks. The district mogeneous black valid from neatly separate test’ that would expert evidence court also noted restrictions, concluded that a we invalid likely are “more to be African Americans identify evaluate the inter court must time, economic, transportation, subject to justifica as by the State put forward ests constraints increase and childcare rule, imposed by its the burden tions for 6162) “[Rjelative (Id. at voting.” cost judgment’ that make the ‘hard and then found, whites,” “African the district adversary system demands.” our Crawford likely are less to work Americans Ohio Bd., 553 U.S. County Election v. Marion jobs; managerial are professional L.Ed.2d 574 likely in service and sales more to work (2008). the case before us I turn to hourly wage jobs; have low- jobs, including judgment of the hard why my view explain incomes; nearly three times more er my colleagues. from that of here differs poverty; and are more likely to live in a likely more to live and a half times two RECORD I. DISTRICT COURT more than 20% of neighborhood which AND DECISION (Id.) in poverty.” residents are made the extensive record begin I with record evi- review of the The court’s The court evaluated in the district court. led it to evincing disparities these dence lay expert and provided both evidence conclude day trial and found over a ten witnesses gen- is therefore that the cost time to vote “reduction overall Americans, African erally higher for of African right to vote w[ould] likely to be able to take they are less Americans, voting signifi- who use EIP childcare, work, find (R. time off than other voters” cantly more imposes en Week a “modest” burden on transportation to reliable secure Moreover, tran- levels of African greater American’s vote. polls. to. frequent 628) may result in more (Maj. sience Op. precedent Neither our address, in turn re- which changes supports nor that of our sister Circuits regis- update their quires individuals argument. [same-day frequently. tration more SDR Husted, In Obama America v. registration] provided (OFA), time. As do so and vote at the same clear applied error review to district such, disproportion- African Americans court’s determination that an Ohio law re- group that benefits ately up make stricting early in-person voting placed a SDR, and the elimination the most from ‘particular- “burden on Plaintiffs was [that] right burdens their of that members, ly high’ their support- because to vote. ers, represent and constituents a large 6163-64) (Id. PagelD The district court in percentage participated those who on this evidence and numerous other

relied early in past elections.” We held testimony lay expert reports and from wit- record, on the evidence “[b]ased support its nesses that it found credible clearly this conclusion was not erroneous.” in EIP conclusions that the reduction vot- appeal Id. involved an from a district OFA time, of Golden ing elimination grant preliminary injunction court’s of a a modest bur- specifically, imposes Week and, accordingly, we reviewed the court’s African Ameri- right den on the to vote of legal conclusions de novo and its factual cans citizens of Ohio. determinations for error. id. at clear See A underlies the dis- great deal work where, applies 428. The same standard important trict court’s conclusion on this here, party appeals following a bench subject. Both that work and the substan- trial. See Pressman v. Franklin Nat’l support tial found the record stand (6th Bank, 2004). 384 F.3d Cir. majority opinion’s blithe opposition to the Consequently, is clear error review we easy “that it’s to vote in Ohio. assertion apply finding must to the district court’s 10) Very easy, actually.” (Maj.Op. at This that the elimination of Golden Week im- problematic for another rea- assertion than minimal than poses more but less finding son—the district court’s that Ohio on African significant burden Americans’ imposes right law some burden on the OFA, right to vote Ohio. See African to vote in Ohio indi- Americans 431; see also Ohio State Conference of “easy” cates that how it is to vote under Husted, v. 532-37 NAACP small but regime Ohio’s new bears some (re- (6th 2014) “NAACP”] Cir. [hereinafter your relationship definable to the color of viewing for clear error district court’s de- skin. This burden is the fact-bound conclu- early voting termination reductions appeal. sion that we address on disproportionately negatively would I begin my analysis appropriate Americans), impact African vacated on application tests and to the facts from the grounds by 2014 WL other No. claim. equal protection record with the (6th 2014). 10384647, at *1 Cir. Oct. EQUAL II. PROTECTION majority opinion cites four cases of de support proposed substitution analysis This must start with the correct governs cases novo review. None of those majority argues standard of review. The first, County, v. Bright here. The Gallia applies that de novo review to the district (6th 2014), was an that elimination of Gold- 753 F.3d Cir. court’s conclusion burdened[,]” court’s dismissal of a 462 F.3d at and Green appeal from a district to Federal Rule of Civil pursuant Party analysis, claim in turn relied on that see 12(b)(6), procedural id.). which is Procedure (citing 767 F.3d at 547 appellate for de novo posture that calls majority None of the cases cited case, Bright was not review. Rath dictates our standard of review here. ease, proce law and its even election (and er, NAACP), limit as in we are OFA posture inappli dural makes its standard reviewing for the district ed to clear error Thus, it not stand for the cable here. does finding court’s based on record evidence that the district court’s proposition post- that S.B. 238’s “elimination Golden trial, finding regarding the bur fact-bound imposes Week a modest burden —which African Americans’ places den S.B. 238 defines as a more than minimal Court subject right to vote is to de novo review. significant burden —on the but less cases, remaining three Williams v. (R. to vote of African Americans.” (6th Mehra, 186 F.3d Cir. 6156-57). 117, PagelD Our sister Circuits (en banc); Party v. Libertarian Ohio agree. The Fourth and Fifth Circuits have (6th Blackwell, F.3d 579, Cir. findings clear error review to the applied 2006), Party and Green Tennessee made district courts similar chal 2014), Hargett, 767 F.3d lenges under the Fourteenth Amendment similarly inapposite. are These cases were Voting Rights 2 of the Act.1 and Section summary judgment appeals orders See N.C. State NAACP v. subject rendering appel them to de novo Conference of 204, 219-20, McCrory, F.3d 2016 Party and 831 WL late review. Libertarian Green moreover, (4th 2016) Party, 29, concerned associational July at *6 Cir. rights specifically, ballot access—not the (applying clear error review to the “ulti — right Party, to vote. See Libertarian 462 question” legislature’s mate factual of a (“[W]e cognizant F.3d at 585 are that ‘the motivation); discriminatory Veasey v. Ab different, place state laws burdens on two bott, at 2016 831 F.3d WL although overlapping, rights kinds of —the (applying at *5 clear error review dis right of individuals to associate for the finding trict court’s that a Texas voter ID political beliefs and the advancement law violated the Fourteenth Amendment voters, right qualified regardless Act). Voting Rights and Section cast political persuasion, their their reviewing findings “In the district court’s ” effectively.’ (quoting votes Williams v. error, for clear not substitute our Rhodes, for that of the district court and judgment (1968))); Party, L.Ed.2d 24 Green 767 F.3d uphold the court’s account [district] ‘must “[ajssocia- at (recognizing while plausible light if it ‘is in of the evidence rights voting rights closely tional ” entirety.’ Lee v. the record viewed its [sjtill, may impose connected ... states 2015) (6th Willey, Cir. access”). on ballot reasonable restrictions (alteration original) (quoting Pledger Party firmly grounded Libertarian (6th States, United 236 F.3d Cir. rights analysis burden the associational 2000)). context, explaining key factor in “[t]he the correct standard reveals Applying scrutiny determining apply the level finding that the district court’s of a modest importance right is the of the associational own, ings resolving indistinguish- addressing then the case as In claim similar to our specific it. not about the able from and thus controlled Seventh Circuit was Crawford review, Walker, faulting Frank v. standard of instead the dis- See 2014). failing adequate trict find- court for to make majority opinion test next seeks to re- the Anderson-Bwrdick under burden African American voters’ reliance on cast well-sup- plausible is more —it “personal prefer- EIP and SDR as mere (See 117, PagelD by the record. ported 630) (Maj.Op. ence.” at This is based on 6153-70) extensively re- The district surmise, So, too, evidence. record is its and anecdo- upon expert and relied viewed worst,” conclusory assertion “[a]t in the record before conclud- tal evidence “represents elimination of Golden Week of the effects of the ing that “this evidence just or contraction of withdrawal one the elim- voting days in EIP reduction many generously conveniences that have that S.B. 238 ination of SDR demonstrates voting participation in Ohio.” facilitated modest, dispropor- as a imposes a as well (Id. 628) at The record this case shows tionate, on African Americans’ that the State of Ohio instituted no fault (Id. 6164; PagelD to vote.” see early voting in 2005 not as a generous 6156-57) also id. necessary convenience but as tool “to remedy problems experienced the manifold propos- arguing In under the standard (R. election,” during PagelD the 2004 es, majority rely seeks to on 6156) extremely “including long lines at important as an systems other states polls” and other “election administra- 629) (Maj.Op. basis” for de- “contextual (Id. problems.” As tion the Fourth burden of S.B. 238 termining whether the recently Circuit concluded a similar vote African disproportionately falls Ameri- supports, denial case and as this record But the usefulness of that contextual cans. disparities “socioeconomic establish that no many depends on whether the information ‘preference’ mere led African Americans to system in each variable methods disproportionately early voting! use and] up. types processes, Certain line same-day McCrory, registration!.]” early necessarily not voting, “do[] like F.3d at 2016 WL at *17. jurisdictions in same role in all play the may tools be a “Registration and ensuring groups that certain of voters are simple ‘preference’ many for white [vot- result, actually able to vote” and as “the ers],” recognized, the Fourth Circuit “but burden impose significant same law many they Americans are a for African only a minimal burden in one state necessity.” Id. NAACP, F.3d at 546. Sim- the other.” majority opinion again The relies on as- early voting system ply stating that Ohio’s voting preferences to con- sumptions about in the nation” generous is “one of the more evidence that African clude that the record 628) helpful in- (Maj.Op. provides at little early voting higher at rates Americans use fails, example, to account formation. It may make them “theo- than other voters early voting rate at which is actual- for the retically disadvantaged” (Maj.Op. at let alone ly by populations, used different early voting. There is by reductions in other voting options states how disadvantage nothing theoretical about In re- impact comparison. most might by Using court. an ex- found the district dependent on spects, this issue is local and record, tensive the district court deter- particular circumstances of Ohio’s law changes early mined that S.B. 238’s population. Analysis of the burden day registration voter voting and same places on Ohio voters thus that S.B. 238 disproportionate bur- impose a modest necessarily engaging with the fac- entails Americans’ to vote. den on African by no clear error majority opinion majority points fails to The tual record. I the record. would the district court on work. perform essential finding NAACP, affirm its it because satisfies the identification cards.” 768 F.3d at (citation omitted). Thus, correct standard of review. “on the basis of the record that been made in ha[d] however, majority opinion, rejects litigation,” th[at] the Court could not “con the district court’s decision that S.B. 238 impose[d] clude that the statute excessive and, imposes a “modest” burden based on ly requirements.” Crawford, burdensome review, its chosen standard de novo 202, 128 at U.S. S.Ct. 1610. it a “minimal concludes burden.” 628-80) error, (Maj.Op. Building on that Here, contrast, replete the record is applies a deferential standard of review with specific supporting plain- evidence akin to rational presumes basis and tiffs’ claims and the district court’s conclu- applies both and resolves this Crawford regarding sion the amount of im- 630-32) (Maj.Op. case. posed by the elimination of Golden Week. This series of conclusions relies on stan- (See 6153-70) PagelD Over the applicable dards of review not to this case. trial, day course of ten bench the district First, arose a different con- Crawford weighed eight evidence from expert appeal text because it was an from a sum- lay witnesses, witnesses and nineteen order, mary judgment not a bench trial. analyses testimony statistical of Get Out Second, factually the case is distinct in efforts, ultimately making Vote deter- ways essential because there the Court credibility minations that led to its con- only “held ‘correctly that the lower courts clusion that disproportionately S.B. 238 concluded that the evidence the record (See burdens African Americans. id. to support [was] sufficient a facial at- 6128-44) provides The record in this case validity tack on the of the entire statute’ ample evidence which the district court under the constitutional Anderson-Burdick “quantify could ... magnitude Abbott, Veasey framework.” 830 F.3d at burden” on African American voters. at *41 (Higginson, WL Crawford, 553 128 S.Ct. 1610. (alterations J., concurring) in original) I would also affirm the district court’s (quoting Crawford, 553 U.S. at application balancing of Anderson-Burdick 1610). concerned a facial Crawford resulting and the court’s conclusion that law, challenge ato voter identification but present State has failed to sufficient the summary judgment record in that case (as specific op- evidence show that its “(1) quantify did not the voters without abstract) posed to justify interests the bur- (2) ID, qualifying provided no ‘concrete eliminating imposes den that Golden Week of imposed evidence the burden on voters (See 117, on African American voters. currently identification,’ who lack photo 6170-79) PagelD (3) and ‘virtually nothing said about the ” majority opinion argues The that the by indigent difficulties faced ... voters.’ overarching question respect plain- with (alteration original) Id. in (quoting Craw- equal protection tiffs’ claim in this case is 1610). ford, 200-01, 553 at may experiment whether Ohio with ex- words, In petitioners other in “[t]he Craw- panding contracting voting regula- and presented any had not in evidence ford may. question tions. Of course it record that even estimated the number of may way dispa- whether it do so in a individuals who lacked identification cards. rately impacts protected group without Nor did the depositions affidavits or justification by sufficient a relevant and record of lower-income or individuals el- derly I legitimate' agree voters in state interest. Because substantiate Crawford they in fact faced in obtaining difficulties with the district court that Ohio’s revised

647 omitted). NAACP, In (quotation marks improperly burdens the S.B. 238 vote of African American citizens of Ohio explicitly this court also found the nine equal of protec- and a violation constitutes Gingles factors laid out in to be relevant to tion, I dissent. respectfully part analysis the second this and of en- couraged their Id. consideration. III. RIGHTS THE VOTING ACT sitting Both the en Fifth Circuit banc majority acknowledges the test for adopted Fourth Circuit have and vote under Section 2 of the denial claims applied our test full. See NAACP Veas years, ago out two VRA that we laid 243^4, ey, 830 F.3d 2016 at WL that it clar- suggests NAACP but warrants (“We part at *17 the two adopt now frame 636-38) This (Maj.Op. ification. clarifica- employed by work the Fourth Sixth- tion, however, apply it to an inappro- leads 2 Circuits to evaluate Section ‘results’ for priately strict threshold Section claims.”); League Women Voters N.C. faithful to origi- claims. I would remain our Carolina, v. North 769 F.3d 240-41 framework, nal as adopted NAACP (4th Cir. (adopting Sixth Circuit test Circuits, by Fourth and Fifth applied claims). for Section 2 vote-denial These by as correctly applied the district juris acknowledged courts that Section court. prudence developed in primarily had plaintiffs request NAACP concerned vote-dilution and a clear context standard injunction preliminary for advance of previously for vote-denial claims had not election, and was moot vacated as explicitly been settled. Then both adopted following that election. See Ohio State two-part NAACP's framework and incor Husted, NAACP v. No. Conference of (6th porated the factors. See Gingles, Veasey, 14-3877, 2014 WL *1 Cir. 1, 2014). Nonetheless, 830 F.3d 2016 WL per- Oct. remains (“As authority, Circuits, suasive that has been subse- *18 did the Fourth and Sixth quently panel another adopted Gingles conclude factors Philip Randolph court. A. See Mich. State help should be determine used to whether Johnson, n.2, Inst. v. 666-67 link there is sufficient causal between the Aug. 2016 WL at *7 n.2 disparate imposed and social and 17, 2016). Drawing on the text Section produced historical conditions discrimi itself guidance Thornburg and the nation.”); N.C., Women Voters League Gingles, (“These [Gingles] F.3d at factors (1986), laid L.Ed.2d 25 NAACP out a two- the two light shed on whether ele part assessing framework for vote-denial met.”). ments of a 2 claim Section standard, first, challenged claims: “the The Ninth and Eleventh Circuits have practice, impose procedure must a dis- expressed approval considering also criminatory pro- burden on members of a vote-denial Gingles factors con class, meaning tected that of the members See, Arizona, e.g., v. text. 677 Gonzalez protected have than class less (en (9th 2012) banc) 383, F.3d Cir. 405-06 other of the electorate partici- members (explaining that “courts should consider” pate in political process the and to elect' cases); Gingles the factors in vote-denial choice,” representatives of their and sec- Fla., 405 Johnson F.3d Governor ond, part “that the burden must be 2005) (11th 1214, (recogniz 1227 n.26 Cir. caused or linked to social and historical apply to vote- ing Gingles that the factors currently produce conditions that have or cases); Project v. Salt River denial Smith against pro- discrimination members of the Dist., NAACP, Agric. Improvement tected & Power 109 class.” 768 F.3d at 544 648 1997) 586, (rejecting impact prac- 596 n.8 of the contested structure or argument Gingles that the factors “ap- minority tice on electoral ‘on opportunities ” claims”). ply only to Vote dilution’ objective Gingles, basis of factors.’ 44, (citing 478 U.S. at 106 S.Ct. 2752 S. acknowledged The district 27, 205). Rep. at 1982 U.S.C.C.A.N. opinion

vacated NAACP was not “bind- Gingles noted a set of enumerated factors nonetheless, ing,” but that it was “free to pertinent will “often be to certain (R. reasoning persuasive” therein find the violations, § types of 2 particularly to vote 6152.) 117, I PagelD agree. two-part claims,” dilution but Report neither the framework as articulated in NAACP is nor applica- the Court have their limited both and appropriate reasonable to use 45, Gingles, tion to such. 478 U.S. 106 evaluating when a Section 2 vote-denial agree S.Ct. 2752. I prior prece- with our claim, and the district court did not err Fourth, Fifth, dent and the Ninth and here, its decision to do so or in its applica- Eleventh Circuits that Gingles factors tion. can and “should be help used to determine Supreme repeatedly has in- Court whether there is a sufficient link causal Voting Rights structed that “[t]he Act was disparate imposed between the subtle, obvious, aimed as the as.well social and produced historical conditions regulations state which have the effect of Veasey, discrimination.” 830 F.3d at denying citizens their to vote because 245, 3923868, 2016 WL at *19. race,” of their Allen v. State Bd. Elec- tions, following Supreme Rather 817, 22 (1969), guidance interpret Court’s L.Ed.2d 1 VRA interpret- “should be possible with the “broadest provides scope,” ed a manner that 501 ‘the broadest 403, possible U.S. at 111 scope’ combating majority racial discrim- S.Ct. ination,” Roemer, part adds to the first Chisom v. of NAACP a narrow (1991) inquiry, thereby allowing S.Ct. 115 L.Ed.2d 348 threshold it to Allen, (quoting 393 U.S. at brush aside the district analysis S.Ct. court’s 817). § “The essence of a 2 claim Gingles is that a factors in part the second law, certain practice, electoral or majority structure the NAACP framework. The cre- interacts with social and historical condi- requires ates a test as a threshold inequality opportu- tions to cause an in the step “proof challenged that the standard enjoyed by nities black and white voters to practice causally contributes to the al- preferred elect their representatives.” leged discriminatory impact.” (Maj.Op. at Gingles, 478 U.S. at requirement unnecessary. This extra states, As the text of Section Report The Senate accompanying the practice may only standard or be invalidat- “empha- amendments to the VRA “ ed under Section if it results in less repeatedly” that ‘right’ ques- size^] opportunity for protected members of a tion” in analysis a Section 2 is “whether ‘as participate political class to in the process a result challenged practice or struc- § than others. See 52 U.S.C. 10301. The plaintiffs ture equal oppor- do not have an existing test is true to this text and con- tunity participate political in the pro- necessary tains the causal linkage between cesses and to elect candidates of their ” regulation electoral and its interaction choice.’ Id. at (quoting S.Ct. 2752 (1982) with social and Rep. S. No. at 28 historical conditions. The [hereinaf- ter Rep.], reprinted part analysis S. as second of the ad- NAACP 206). Answering U.S.C.C.A.N. dresses whether the law interacts with so- question requires a court to “assess the cial and historical conditions to cause a (id.) Americans,” including a reference to a at Veasey, 830 F.3d burden. See disparate by expert *17. The Dr. 243-44, report at rebuttal Defense 2016 WL guid provide majority ignores context and In doing, factors Hood. so the Gingles link between the causal credibility by ance for whether the determinations made the and social and burden the disparate court, particularly regarding district produced by discrimi conditions historical provided by evidence Plaintiffs’ statistical n to show a Section nation is sufficient strongly sug- Dr. Timberlake which expert at 2016 WL violation. See id. higher usage rates of EIP and SDR gested is “flexible inquiry at *18. The court, African district by Americans. The fact-intensive,” requires an ex and [and] finder, pro- evidence weighed as fact Gingles, of the record evidence. amination others, ulti- by experts, vided these and parts 2752. Both at mately that Timberlake’s con- determining were mirrored in proper framework of the (R. 117, PagelD credible clusions were below, and application court’s the district 6132) weight” opin- affording and “little Fifth when by the Fourth and Circuits report ions in Hood’s because of its reli- Veasey, they adopted our framework. See ance on statements declarants selected 249-66, 2016 at F.3d at WL questioned by defense counsel who and N.C., *21-*33; League Women Voters questioned never and personally Hood (“Clearly, eye toward at 241 he did not confirm with whose declarations of the part parcel is and past practices (Id. 6138) hard data. circumstances.”) totality of the majority says that the statistical imposes dispa- finding In that S.B. 238 directly contrary” (Maj.Op. “runs evidence Americans, the dis- on African rate burden 639) conclusions, the district court’s to the evidence used trict court referred clearly that such evidence “rather analysis Protection Clause show- Equal its (id.) 238 does not have shows” opportuni- in less ing that the law “results par- African American disparate impact on ty participate African Americans however, not, majority does ticipation. The (R. process than other voters.” political in the record for what provide support 6220) evidence, on PagelD This based it relies on for these statistical evidence expert analysis lay as well as witness testi- statements, run con- precisely they how uti- that African Americans mony, showed trary to the district court’s conclusions. rates, higher higher EIP face lize con- dismissing the district court’s While voting, disproportionately costs of dispa- would have a clusion that S.B. 238 most up group make that benefits the as on African Americans impact rate (Id. 6158-64) The district from SDR. majority fails to account “speculative,” together, the reduction of court found speculation for the its own substitution. would EIP and the elimination of SDR determi- I would affirm the district court’s “modest, dispropor- as well as a impose a imposi- nation that the record reflects tionate, on African Americans’ burden Afri- disproportionate tion of a (Id. at right to vote.” Americans’ to vote. can majority dismisses this conclusion district court’s I would also hold that the 638-39) and once “hasty,” (Maj.Op. analysis step of the second Section findings the factual again accept refuses to framework, including application Instead, court. made the district factors, The court proper. was Gingles majority items from the record selects .two had established plaintiffs found that political its conclusion that the support five, nine, one, two, three, African factors “equally open process Ohio particularly that factors five and nine were actually justifications connect these with (See 6224-28) 117, PagelD relevant. law, the enacted the assertion of even le- Factor five assesses extent to which “[t]he gitimate-interests may not automatically minority group of the ... members bear (R. 117, 6174) day. 6172, win the PagelD the effects of discrimination areas such Determining political process whether the education, health, employment as is “equally open” requires to all voters ability participate which hinder their “searching practical past evaluation of the effectively political process.” in the Gin- present reality and ... a functional gles, 478 U.S. at 106 S.Ct. 2752. The view of political process.” Gingles, that plaintiffs district court determined at U.S. 106 S.Ct. 2752. The district indicating had evidence that Af- “adduced performed court inquiry. such an rican in the state Americans of Ohio bear the effects of discrimination areas such Based on its findings that S.B. im- (R. 117, employment and education.” poses a disproportionate burden on Afri- 6226) conclusion, PagelD coming In to this Americans, can and that the law was weighed that, indicating the court evidence linked to social and historical conditions of whites, relative to African Americans are ability discrimination that diminish the likely professional “less to work in and African Americans to participate in the jobs, managerial likely are more to work in political process, the district court conclud- jobs, hourly service and sales including ed that discriminatory S.B. 238 has a effect jobs; incomes; wage nearly have lower in violation of 2 of Voting Section likely three times more in poverty” live I Rights Act. would hold that the district likely and are more in neighbor- to live properly applied our preexisting test (R. poverty. hoods where others live in for Section 2. 6162) 117, PagelD The court found this evidence, based on expert Timberlake’s IV.

testimony and CONCLUSION against considered Hood’s (See report, credible. id. I affirm very injunc- would limited 6226) tion issued the district court on the Factor nine assesses the tenuousness of basis that S.B. 238’s elimination of Golden policies underlying Gingles, the law. Week, reducing early in-person voting and 106 S.Ct. 2752. The district day registration, same ais violation of court determined “justifications equal protection and Section of the Vot- in support offered of the elimination of ing Rights Act of 1965. The district court Week,” including Golden preventing voter applied the correct constitutional and stat- confusion, fraud or reducing costs and ad- utory fully tests and its decision is sup- burdens, increasing ministrative voter ported by the extensive resulting record confidence, “were either supported day ten bench trial. The charge evidence or did not logical withstand scru- appeal apparently many (R. —and tiny.” PagelD The State’s upon right others—intrude of the asserted legitimate, interests are and Ohio to run process states their own election is “entitled to make policy choices about both antiquated. unfounded and Our when and how it prior- will address various society system American and legal now Veasey, ities.” 830 F.3d at 2016 WL recognize appropriate scrutiny is es- *31; Crawford, see also protection sential to fundamental 128 S.Ct. 1610. But where the scrutiny district court testimony applied by has credited vote. The show- ing “very limited” or “minimal” proper evidence to district court was accord re- precedent. I therefore governing with dissent.

spectfully RE: FAIR FINANCE

IN

COMPANY, Debtor. Trustee, Bash, Chapter 7

Brian A.

Plaintiff-Appellant, Corporation, Financial

Textron

Defendant-Appellee.

No. 15-3854 Appeals, States Court of

United Circuit.

Sixth

Argued: April and Filed: August

Decided 23, 2016

Rehearing September Denied

Case Details

Case Name: Ohio Democratic Party v. Jon Husted

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Aug 23, 2016

Citation: 834 F.3d 620

Docket Number: 16-3561

Court Abbreviation: 6th Cir.