Ohio State Conference of the National Ass'n v. Husted

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 14a0246p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

OHIO STATE CONFERENCE OF THE NATIONAL ┐

ASSOCIATION FOR THE ADVANCEMENT OF COLORED │

PEOPLE et al., │

│ No. 14-3877

Plaintiffs-Appellees,

│

>

│

v.

│

│

JON HUSTED, in his official capacity as Ohio │

Secretary of State; MIKE DEWINE, in his official │

capacity as Ohio Attorney General; │

Defendants-Appellants. │

┘

Appeal from the United States District Court

for the Southern District of Ohio at Columbus

No. 2:14-cv-00404—Peter C. Economus, District Judge.

Decided and Filed: September 24, 2014

Before: KEITH, MOORE, and CLAY, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Eric E. Murphy, Stephen P. Carney, Steven T. Voigt, Kristopher Armstrong,

OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellants. Freda J.

Levenson, Drew S. Dennis, ACLU OF OHIO FOUNDATION, INC., Cleveland, Ohio, Dale E.

Ho, Sean J. Young, ACLU FOUNDATION, New York, New York, for Appellees. Mark L.

Gross, Nathaniel S. Pollock, UNITED STATES DEPARTMENT OF JUSTICE, Washington,

D.C., Majeed G. Makhlouf CUYAHOGA COUNTY DEPARTMENT OF LAW, Cleveland,

Ohio, Patrick T. Lewis, BAKERHOSTETLER LLP, Cleveland, Ohio, Robert J. Tucker,

BAKERHOSTETLER LLP, Columbus, Ohio, for Amici Curiae.

1

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 2

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. Defendants Jon Husted, the Ohio Secretary

of State, and Mike DeWine, the Ohio Attorney General, appeal from the district court’s order

granting Plaintiffs’ motion for a preliminary injunction. The district court enjoined the

enforcement of Senate Bill 238 (“SB 238”) and Secretary of State Directive 2014-17, and

ordered the restoration of additional early in-person (“EIP”) voting hours as set forth below on

the basis that SB 238 and Directive 2014-17 violate the Equal Protection Clause of the

Fourteenth Amendment and Section 2 of the Voting Rights Act of 1965. For the reasons set

forth below, we AFFIRM the district court’s judgment granting the preliminary injunction.

I. BACKGROUND

A. Procedural History

Plaintiffs, Ohio State Conference of the National Association for the Advancement of

Colored People et al. (“NAACP”), filed a complaint in the United States District Court for the

Southern District of Ohio on May 1, 2014, pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1973

challenging the constitutionality and legality of SB 238 and Directive 2014-17. In their

complaint for declaratory and injunctive relief, Plaintiffs allege that SB 238 and Directive 2014-

06 (now Directive 2014-17) (1) violate the Equal Protection Clause of the Fourteenth

Amendment by burdening the fundamental right to vote; and (2) violate Section 2 of the Voting

Rights Act of 1965 by  disproportionately burdening African American voters’ ability to

participate effectively in the political process.

On June 30, 2014, Plaintiffs moved for a preliminary injunction to “enjoin the

enforcement of . . . Senate Bill 238 . . . and require Defendant Husted to set uniform and suitable

in-person early voting hours for all eligible voters that includes multiple Sundays and weekday

evening hours.” R. 17 (Pls.’ Mot. Prelim. Inj. at 61) (Page ID #152). Following a hearing on

August 11, 2014, the district court granted Plaintiffs’ motion for a preliminary injunction on

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 3

September 4, 2014. R. 72 (D. Ct. Op. and Order at 70) (Page ID #5917). The district court’s

order provided as follows:

That the State of Ohio and the Secretary Husted are enjoined from enforcing and

implementing SB 238’s amendments to § 3509.01 of the Ohio Revised Code

reducing the EIP voting period from 35 days before an election to the period

beginning the day following the close of voter registration;

That, for purposes of the 2014 general election, the EIP voting period shall consist

of the 35 days prior to the election as was the case [prior] to SB 238’s enactment;

That, for the 2014 general election, Defendant Secretary Husted shall require all

Ohio county Boards of Election to set uniform and suitable EIP voting hours, in

addition to those currently established by Directive 2014-17, for the following

days:

• Tuesday, September 30, 2014 through Friday, October 3, 2014;

• Monday, October 6, 2014;

• Evening voting hours between Monday, October 20, 2014 and Friday,

October, 24, 2014, and between Monday, October 27, 2014 and Friday,

October 31, 2014. Provided, that in setting such hours, Husted must, in

good faith, take into consideration the Court’s findings and legal

conclusions regarding the impact of a lack of evening voting hours on the

protected classes of voters discussed in this Memorandum Opinion and

Order; and

• Sunday, October 26, 2014; and

That Defendant Secretary Husted is enjoined from preventing individual county

Boards of Election from adopting, by a majority vote of their members and in

accordance with the procedures established by Ohio election law, EIP voting

hours in addition to those specified above and in Directive 2014-17.

Further, all issues regarding and pertaining to future elections are deferred and

reserved for consideration on the motion for a permanent injunction. In the

interim, the Ohio General [A]ssembly is charged with the responsibility of

passing legislation consistent with this Memorandum Opinion and Order. . . .

Id. at 70–71 (Page ID #5917–18) (footnote omitted).

Defendants timely appealed the district court’s order granting a preliminary injunction to

Plaintiffs and moved this court to expedite that appeal. After the district court denied

Defendants’ motion for a stay of that order, Defendants moved this court to stay the order

pending appeal. We granted Defendants’ motion to expedite the appeal on September 11, 2014,

and denied their motion for a stay of the order granting a preliminary injunction to Plaintiffs on

September 12, 2014.

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 4

The Ohio General Assembly (“General Assembly”) filed a motion with the district court

on July 11, 2014 to intervene in this case, which the district court denied on July 30. On August

1, the General Assembly filed a notice of appeal of that decision, which appeal is pending under

case number 14-3756.

After the district court granted Plaintiffs’ motion for a preliminary injunction and after

Defendants filed their notice of appeal in the instant case (appeal number 14-3877), the district

court granted the General Assembly’s renewed motion to intervene, stating that the motion was

granted “for the purpose of appeal only.” R. 75 (D. Ct. Order Granting General Assembly’s

Intervention for Appeal) (Page ID #5954). The General Assembly then filed a notice of appeal

that is docketed as appeal number 14-3881. The General Assembly has filed a brief in appeal

14-3881. It has also filed a motion to file a brief instanter in 14-3877, which included an

accompanying brief supporting Defendants’ appeal in this case. We do not address in this appeal

whether the district court’s intervention decisions were proper, and we do not resolve appeals

numbers 14-3756 and 14-3881. Nevertheless, we consider the arguments the General Assembly

presented in the brief filed in 14-3881 as if it were filed as an amicus curiae brief in this case.

Moreover, we also consider the arguments presented by amici curiae United States and

Cuyahoga County in briefs filed in this case.

B. Factual Background

Ohio established early in-person voting largely in response to well-documented problems

in administering the 2004 general election. As we explained in Obama for America v. Husted,

697 F.3d 423 (6th Cir. 2012), “[d]uring that election, Ohio voters faced long lines and wait-times

that, at some polling places, stretched into the early morning of the following day.” Id. at 426.

In League of Women Voters of Ohio v. Brunner, 548 F.3d 463 (6th Cir. 2008), we summarized

the problems the League of Women Voters of Ohio reported voters faced as follows:

Voters were forced to wait from two to twelve hours to vote because of

inadequate allocation of voting machines. Voting machines were not allocated

proportionately to the voting population, causing more severe wait times in some

counties than in others. At least one polling place, voting was not completed until

4:00 a.m. on the day following election day. Long wait times caused some voters

to leave their polling places without voting in order to attend school, work, or to

family responsibilities or because a physical disability prevented them from

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 5

standing in line. Poll workers received inadequate training, causing them to

provide incorrect instructions and leading to the discounting of votes. In some

counties, poll workers misdirected voters to the wrong polling place, forcing them

to attempt to vote multiple times and delaying them by up to six hours.

Id. at 477–78. In sum, many voters in the 2004 general election were effectively disenfranchised

and unable to vote.

In 2005, the Ohio General Assembly passed Substitute House Bill 234 to remedy these

problems. 2005 Ohio Laws 40 (Sub. H.B. 234). HB 234 instituted no-fault early voting,

eliminating the requirement that Ohio voters had to provide an excuse for not being able to vote

on Election Day in order to vote early. Early voting is done via an “absentee ballot,” which may

be cast either early in-person (“EIP”) at the voter’s Board of Elections’ (“BOE”) designated

voting location or by mailing the ballot to the BOE. Ohio Rev. Code § 3509.05(A). Each county

has one BOE, which is permitted to operate only one location for EIP voting. Id. § 3501.10(C).

Under the 2005 early-voting scheme, the BOEs were required to make absentee ballots available

for voters—either for EIP voting or by mail voting—no later than 35 days before the election.

Id. § 3509.01(B)(2) (2014) (as amended Feb. 25, 2014). Ohio law requires voters to be

registered at least 30 days prior to an election. Ohio Const. § 5.01; Ohio Rev. Code

§ 3503.01(A). Therefore, Ohio voters could register and vote on the same day for a five-day

period that Plaintiffs refer to as “Golden Week.”

Until 2012, Ohio law gave each of the BOEs for Ohio’s eighty-eight counties the

discretion to set their own EIP voting hours. R. 62 (Parties’ Statement Undisputed Facts ¶ 6)

(Page ID #3307). Thus, for the 2008 and 2010 elections each BOE set its own EIP voting hours.

Id. Several counties, including six counties with the highest African American populations in

Ohio, offered early voting during the evenings and on multiple Sundays. Id. ¶ 8 (Page ID

#3307); R. 65-3 (2010 Early Voting Days & Times) (Page ID #4576–84); R. 72 (D. Ct. Op. and

Order at 9) (Page ID #5856).

On August 15, 2012, Secretary Husted issued Directive 2012-35, which established

uniform EIP voting hours for all BOEs for the 2012 general election. R. 62 (Parties’ Statement

Undisputed Facts ¶ 15 (Page ID #3308). Directive 2012-35 eliminated all weekend EIP voting

hours. R. 18-34 (Directive 2012-35) (Page ID #527–28). It did provide for some evening EIP

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 6

voting hours on ten weekdays in the last two weeks before Election Day. Id. Directive 2012-35

was challenged in separate litigation as violating the Equal Protection Clause because it allowed

only military voters to vote EIP during the last three days before the election. In Obama for

America, we upheld the district court’s issuance of a preliminary injunction enjoining the

enforcement of the Directive regarding the last three days of EIP voting before the election;

under the preliminary injunction local BOEs had discretion to set EIP voting hours for those days

so long as those hours applied to all voters, not just military voters. 697 F.3d at 437.

In the 2008, 2010, and 2012 elections, many Ohio voters took advantage of early voting.

As we noted in Obama for America, in 2008 “approximately 1.7 million Ohioans cast their

ballots before election day, amounting to 20.7% of registered voters and 29.7% of the total votes

cast. . . . In 2010, approximately 1 million Ohioans voted early, and 17.8% of them chose to cast

their ballots in person.” 697 F.3d at 426. In the 2012 election, roughly 32% of Ohioans voted

early. R. 18-1 (Smith Rep. at 6) (Page ID #167). Thousands of voters also registered or updated

their registration and voted during Golden Week. R. 62 (Parties’ Statement Undisputed Facts

¶¶ 10, 14) (Page ID #3308).

The General Assembly passed SB 238 on February 19, 2014, and it went into effect on

June 1, 2014. SB 238 amended the Ohio Code to make the first permitted day of early voting the

day after the close of voter registration. Ohio Rev. Code § 3509.01(B)(2)–(3). Thus, SB 238

reduces the total number of EIP voting days by eliminating Golden Week. SB 238 largely

mirrored the recommendations in a report by the Ohio Association of Election Officials

(“OAEO”). R. 18-33 (OAEO Rep.) (Page ID #521–26).

On February 25, 2014, Secretary Husted issued Directive 2014-06, which set EIP voting

hours for the 2014 primary and general elections. For the general elections, the Directive did not

include EIP voting hours for the following times: (1) the Sunday and Monday immediately

before Election Day; (2) Tuesday, September 30th through Monday, October 6th, the last day for

voter registration (Golden Week); (3) Saturday, October 11th, Sunday, October 19th, or Sunday,

October 26th; and (4) evening EIP voting hours after 5 p.m. on all weekdays or after 4 p.m. on

Saturday, October 25th and Saturday, November 1st. R. 18-36 (Directive 2014-06 at 2) (Page ID

#531).

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 7

On June 11, 2014, however, the U.S. District Court for the Southern District of Ohio

issued a permanent injunction in Obama for America. No. 2:12-CV-636, 2014 WL 2611316

(S.D. Ohio June 11, 2014). The district court “require[d] Secretary of State Husted to set

uniform and suitable in-person early voting hours for all eligible voters for the three days

preceding all future elections.” Id. at *5. No party appealed this final judgment.

To comply with the permanent injunction, Secretary Husted issued Directive 2014-17 on

June 17, 2014. R. 18-37 (Directive 2014-17) (Page ID #532–33). Directive 2014-17 sets

uniform EIP voting hours for all future elections in three categories: (1) Presidential General

Elections; (2) Presidential Primary Elections and Gubernatorial General Elections; and

(3) Regular Municipal Elections, Primary Elections, and Special Elections. Id. As required by

the permanent injunction, Directive 2014-17 restores EIP voting hours for the Gubernatorial

General Elections (the only election relevant to the 2014 general election) on the Sunday and

Monday immediately prior to Election Day on November 4, 2014. Id. at 2 (Page ID #533). In

all other respects Directive 2014-17 sets the same EIP voting hours that Directive 2014-06 set for

the Gubernatorial General Election. Id.

II. DISCUSSION

A. Standard of Review

“[F]our factors . . . must [be] balance[d] when considering a motion for preliminary

injunction: (1) whether the movant has a strong likelihood of success on the merits; (2) whether

the movant would suffer irreparable injury without the injunction; (3) whether issuance of the

injunction would cause substantial harm to others; and (4) whether the public interest would be

served by issuance of the injunction.” City of Pontiac Retired Employees Ass’n v. Schimmel,

751 F.3d 427, 430 (6th Cir. 2014) (internal quotation marks omitted). “We review a district

court’s grant of a preliminary injunction for an abuse of discretion.” Obama for America, 697

F.3d at 428. However, we review de novo the district court’s legal conclusions, and we review

its factual findings for clear error. Id. Thus, “[t]he district court’s determination will be

disturbed only if the district court relied upon clearly erroneous findings of fact, improperly

applied the governing law, or used an erroneous legal standard.” McNeilly v. Land, 684 F.3d

611, 614 (6th Cir. 2012) (internal quotation marks omitted). Moreover, “the ‘determination of

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 8

whether the movant is likely to succeed on the merits is a question of law and is accordingly

reviewed de novo.’” Liberty Coins, LLC v. Goodman, 748 F.3d 682, 689 (6th Cir. 2014)

(quoting Bays v. City of Fairborn, 668 F.3d 814, 819 (6th Cir. 2012)).

B. The District Court’s Factual Findings Are Not Clearly Erroneous

The district court analyzed the record evidence and made a number of factual findings in

granting Plaintiffs’ motion for a preliminary injunction. In particular, the district court’s opinion

carefully considered the conclusions of Plaintiffs’ four expert witnesses (Smith, Roscigno,

Burden, and Gronke) and Defendants’ three expert witnesses (Trende, McCarty, and Brunell).

See R. 72 (D. Ct. Op. and Order at 26‒45) (Page ID #5873‒92). After assessing each, the district

court credited Smith’s conclusion that, based on his statistical analysis, African Americans will

be disproportionately and negatively affected by the reductions in early voting in SB 238 and

Directive 2014-17. Id. at 44‒45 (Page ID #5891‒92). The district court also accepted

Roscigno’s “undisputed” findings that disparities in employment and in residential,

transportation, and childcare options between African American and white voters significantly

increased the cost of casting a vote for African American voters. Id. at 45 (Page ID #5892). The

district court then relied on Smith’s statistical findings and conclusions in its Equal Protection

analysis, and it relied on both Smith’s and Roscigno’s findings in its Voting Rights Act analysis.

Defendants have not challenged the admissibility of any of Plaintiffs’ experts’

conclusions under Daubert, either at the district court or on appeal. See Daubert v. Merrell Dow

Pharm., Inc., 509 U.S. 579 (1993). Indeed, Defendants’ brief makes little mention of the district

court’s factual findings or its decision to credit the conclusions of Plaintiffs’ experts. Thus,

whether or not the district court properly considered these expert findings is not before us. In

any event, while they do not dispute Roscigno’s, Burden’s, or Gronke’s conclusions, to the

extent Defendants and the General Assembly believe the district court improperly credited

Smith’s findings over the conclusions offered by Defendants’ experts, they are mistaken.

We review a district court’s factual findings for clear error. Williamson v. Recovery Ltd.

P’ship, 731 F.3d 608, 627 (6th Cir. 2013). “When reviewing for clear error, we cannot substitute

our judgment for that of the lower court but rather must uphold the lower court’s account of the

evidence if it ‘is plausible in light of the record viewed in its entirety.’” Pledger v. United States,

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 9

236 F.3d 315, 320 (6th Cir. 2000) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 574

(1985)). We will thus reverse the district court’s interpretation of the evidence “‘only where we

are left with a definite and firm conviction that [the district court] committed a clear error of

judgment.’” In re Scrap Metal Antitrust Litig., 527 F.3d 517, 528 (6th Cir. 2008) (quoting

Conwood Co., L.P. v. U.S. Tobacco Co., 290 F.3d 768, 781 (6th Cir. 2002)). Consequently, “[i]f

the district court interprets the evidence in a manner consistent with the record, we are required

to uphold its decision even if we would have reached the opposite conclusion.” United States v.

Darwich, 337 F.3d 645, 663 (6th Cir. 2003).

Defendants and the General Assembly are unable to show that the district court clearly

erred by crediting Smith’s statistical conclusions. First, contrary to the General Assembly’s

claim, the record does not support a finding that the district court erred because Smith’s

conclusions are based on faulty data. General Assembly Br. at 48‒51. The district court

recognized at the outset of its analysis “that some significant limitations exist regarding the

available election data,” including different election management systems and policies for

tabulating absentee votes among the counties, which made statewide comparisons difficult. R.

72 (D. Ct. Op. and Order at 26‒27) (Page ID #5873‒74). Indeed, Smith suggested as much in

his expert reports. R. 18-1 (Smith Rep. at 12) (Page ID #173); 53-11 (Smith Rebuttal Rep. at 1‒

2, 25) (Page ID #1628‒29, 1652).

Recognizing these limitations, Smith utilized several techniques based on entirely

different statistical methods and data sources to determine whether the propensity of African

Americans to cast EIP ballots in Ohio is greater than whites. See 53-11 (Smith Supp. Rep. at 1‒

2, 25) (Page ID #1628‒29, 1652). In particular, Smith utilized a “triangulation” method, which

relied on data from the U.S. Census Bureau, Ohio, and county Boards of Elections, and included

three different “standard ecological inference techniques” to analyze voting trends in the 2010

midterm and 2012 presidential elections. Id. at 1 (Page ID #1628). Then, in a separate analysis,

Smith examined data from the Current Population Voting and Registration Supplement to

determine whether African American voters in Ohio were disproportionately more likely to cast

EIP ballots in the 2012 and 2008 elections based on this data. Id. at 1–2 (Page ID #1628‒29).

As the district court found, by varying degrees, each of these examinations supports Smith’s

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 10

conclusion that African American voters in Ohio utilize EIP voting at higher rates than white

voters in recent elections.1

Smith then supplemented his findings by citing additional studies indicating that African

American and indigent voters utilized early voting more than white and affluent voters and

would be negatively impacted by restrictions on early voting. See, e.g., R. 18-1 (Smith Rep. at 7,

17, 29–30) (Page ID #168, 178, 190–91); R. 72 (D. Ct. Op. and Order at 45–46) (Page ID

#5892–93). These findings are further supported by expert reports submitted by Gronke and

Burden and studies attached to Plaintiffs’ briefing to the district court.2 See R. 72 (D. Ct. Op.

and Order at 45–46) (Page ID #5892–93); 53-5 (Gronke Rep. at 6‒12) (Page ID #1563‒69)

(noting research indicating that African Americans disproportionately use early voting in many

states and shortening the early-vote period negatively impacted turnout among African

Americans); R. 53-4 (Burden Rep. at 3) (Page ID #1555) (citing research noting that “restrictions

on early voting in Florida finds that it deterred participation of black voters”). Although,

standing alone, any one analysis may not have proven dispositive, when reading them together

and as properly supported by other record evidence, the district court did not clearly err by

crediting Smith’s analysis despite the possibility of flaws in the data.

Second, for the same reason, limitations in Smith’s analysis of the 2010 election do not

demonstrate that the district court clearly erred by relying on Smith’s findings. General

1

The General Assembly argues that the district court clearly erred because it relied on Smith to find that

African American voters used EIP voting at “far greater rates” than white voters in Ohio, but Smith himself never

made such a claim. General Assembly Br. at 46‒48. Although it is true that Smith never used the phrase “far

greater rate,” see, e.g., R. 18-1 (Smith Rep. at 17) (Page ID #178) (finding African Americans used EIP at a “greater

rate” than whites), he did conclude that in the 2012 election African Americans used EIP voting at a “much higher”

rate than white voters and characterized his findings as “dramatic.” Id. He further noted the “strong empirical

evidence” showing that African Americans cast EIP absentee ballots more than whites and do so on the days

eliminated by SB 238 and Directive 2014-06. Id. at 4 (Page ID #165). Based on this, and the additional evidence

the district court relied on to support its findings, the district court did not clearly err in its characterization of

Smith’s conclusions.

2

Presumably due to the expedited nature of the proceedings, both parties relied on evidence in the form of

reports by experts and studies cited therein to support their respective positions. See 11A CHARLES ALAN WRIGHT,

ARTHUR R. MILLER, & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2949 (3d ed. 2001) (“[I]nasmuch

as the grant of a preliminary injunction is discretionary, the trial court should be allowed to give even inadmissible

evidence some weight when it is thought advisable to do so in order to serve the primary purpose of preventing

irreparable harm before a trial can be had.”); Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp.,

511 F.3d 535, 542 (6th Cir. 2007) (“Given [its] limited purpose, ‘a preliminary injunction is customarily granted on

the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits.’”)

(quoting Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981)); Mullins v. City of New York, 626 F.3d 47, 52 (2d

Cir. 2010) (concluding “that hearsay evidence may be considered by a district court in determining whether to grant

a preliminary injunction”).

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 11

Assembly Br. at 51‒52. Defendants cite the 2010 analysis to show that the early-voting days that

were eliminated were among the days with the lowest African American voting rates.

Appellants Br. at 56. And it is true that Smith’s 2010 analysis considered only data from five of

eighty-eight Ohio counties. But, here, it is Defendants who attempt to cherry-pick the findings.

Again, Smith’s analysis of the 2010 mid-term election was one of a number of studies cited by

the district court in support of its conclusion that African Americans would be disproportionately

impacted by restrictions in EIP voting. Moreover, the five counties analyzed by Smith in his

findings based on the 2010 election make up one-third of Ohio’s population and nearly seventy-

three percent of all African Americans living in Ohio, and the findings overall indicate that

African Americans participated in EIP at a higher rate than white voters in these counties. R. 18-

1 (Smith Rep. at 10) (Page ID #171); R. 53-11 (Smith Rebuttal Rep. at 22) (Page ID #1649).

Thus, the 2010 analysis is certainly relevant to whether African American voters utilized early

voting more than white voters, and the district court properly considered this finding along with

the other evidence in the record in reaching its conclusion.

Third, the General Assembly’s suggestion that Smith’s analyses relating to the 2012 and

2008 elections are not probative here because these were presidential elections and the 2014

election is an off-year election is not well-taken. General Assembly Br. at 52‒53. Plaintiffs’

complaint does not limit its challenge to the 2014 midterm elections. See R. 1 (Complaint) (Page

ID #1). Indeed, SB 238 is the law in Ohio and will apply to all elections moving forward, and

nothing in the record suggests that the restrictions on early voting in Directive 2014-17 will be

limited to the 2014 election. In fact, Directive 2014-17 expressly applies to “Presidential

General Elections.” R. 18-37 (Directive 2014-17 at 1) (Page ID #532). Thus, any attempt to

diminish the probative value of Smith’s 2012 and 2008 election analyses for this reason has no

merit. Similarly, attempts to disregard voter turnout among African Americans in the 2012 and

2008 elections because African American voters were targeted by an African American

presidential candidate are equally meritless. General Assembly Br. at 53. The suggestion is that

African American voters in Ohio—a “battleground” state, central to any presidential candidate’s

chance of winning an election—will not be as heavily targeted in future elections. Id. But this

claim is both unsupported by record evidence and, given the continued importance of Ohio in

national elections, contrary to common sense. See R. 41-3 (Trende Rep. at 31) (Page ID #1041)

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 12

(noting that African American voter turnout has risen in Ohio and the United States as a whole

since 2004); see also Florida v. United States, 885 F. Supp. 2d 299, 326 (D.D.C. 2012) (“[W]e

cannot ignore elections in which minority candidates make breakthroughs in winning elected

office on the assumption that future elections will revert to the status quo.”).

Fourth, Defendants and the General Assembly suggest that the district court should not

have credited Smith’s analysis because Defendants’ expert, Sean Trende, performed a statistical

analysis that produced different results. See Appellants Br. at 56; General Assembly Br. at 52.

While we acknowledge that a Daubert issue is not before us, it remains true that district courts

play the role of “gatekeeper” and are charged “with evaluating the relevance and reliability of

proffered expert testimony with heighted care.” Surles ex rel. Johnson v. Greyhound Lines, Inc.,

474 F.3d 288, 295 (6th Cir. 2007). For this reason, we generally defer to the district court’s

decision to credit one expert over another. In re Scrap Metal, 527 F.3d at 528 (recognizing the

deference afforded a district court’s assessment of expert testimony). Moreover, “[w]here there

are two permissible views of the evidence, the factfinder’s choice between them cannot be

clearly erroneous.” Anderson, 470 U.S. at 574.

Here, Trende analyzed EIP turnout from the 2010 elections and found that, contrary to

Smith’s conclusion, “it is difficult to conclude that early voting enhances African-American

turnout.” R. 41-3 (Trende Rep. at 42) (Page ID #1052). He acknowledged, however, that the

“strength of the relationship tested depends on the judgment call that is made about the different

variables.” Id. Indeed, Trende asserted that much of his analysis—as was undoubtedly the case

for Smith’s analysis—reflected judgment calls that could “reasonably be argued either way.” Id.

at 34 (Page ID #1044). The district court’s decision in assessing the evidence to then credit

Smith’s findings—an academic in the area of electoral processes and election issues, R. 18-1

(Smith Rep. at 2‒3) (Page ID #163‒64)—and the judgment calls inherent in the same, over

Trende’s—an elections analyst for the political website RealClearPolitics, who apparently has

not conducted a peer-reviewed analysis similar to the one at issue here, R. 41-3 (Trende Rep. at

3) (Page ID #1013); R. 53-6 (7/30/14 Trende Dep. at 281) (Page ID #1576)—is afforded

deference. In re Scrap Metal, 527 F.3d at 528. Given this, along with the multiple methods and

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 13

data sources used by Smith and other record evidence corroborating his findings, we conclude

that the district court did not clearly err by crediting Smith’s findings over Trende’s.

Finally, the General Assembly’s claim that the district court erred because Smith’s

methodology is flawed also fails. The General Assembly asserts that Smith’s findings are

unreliable because factors other than race could explain the results of Smith’s census block

analysis of the 2012 election, General Assembly Br. at 54‒55; however, no evidence is offered

supporting this. Moreover, the other record evidence suggesting that African American voters

utilize EIP voting at higher rates than white voters indicates that race, rather than some other

variable, helps explain Smith’s findings in his 2012 census block analysis. At the least, the

district court did not clearly err in so finding. See Surles, 474 F.3d at 295 (noting the “broad

discretion” district courts possess to assess the reliability of expert findings); see also McLean v.

988011 Ontario, Ltd., 224 F.3d 797, 801 (6th Cir. 2000) (“[M]ere ‘weaknesses in the factual

basis of an expert witness’ opinion . . . bear on the weight of the evidence rather than on its

admissibility.’”) (quoting United States v. L.E. Cooke Co., 991 F.2d 336, 342 (6th Cir. 1993)).

Similarly, Defendants’ expert, Dr. Nolan McCarty, and Smith quibble over whether

Smith should have conducted his census block analysis at the county level rather than the

precinct level—McCarty claims the results are more accurate at the county level while Smith

asserts that “aggregat[ing] up . . . dramatically worsens the problem of aggregation bias.”

Compare R. 53-11 (Smith Rebuttal Rep. at 5‒6) (Page ID # 1632‒33), with General Assembly

Br. at 55‒56. And the General Assembly claims that the district court gave too much weight to

the “direction of the relationship” between African American voters and EIP voting in the 2012

and 2010 analyses and ignored the “degree of the relationship,” which it claims is small. General

Assembly Br. at 56‒57. But neither argument supports reversal—again, given the other record

evidence supporting Smith’s conclusion and the deference afforded the district court, the district

court’s position is plausible based on the record as a whole, and so there is no clear error. King

v. Zamiara, 680 F.3d 686, 694 (6th Cir. 2012), cert. denied, 133 S. Ct. 985 (2013) (“If the district

court’s account is ‘plausible in light of the record viewed in its entirety, the court of appeals may

not reverse.’”) (quoting Anderson, 470 U.S. at 574).

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 14

Consequently, Defendants and the General Assembly have failed to show that the district

court clearly erred in crediting Smith’s statistical conclusions.

C. Equal Protection Clause Claim

The right to vote is a “fundamental” right. Harper v. Virginia State Bd. of Elections,

383 U.S. 663, 670 (1966); Burdick v. Takushi, 504 U.S. 428, 433 (1992) (“It is beyond cavil that

‘voting is of the most fundamental significance under our constitutional structure.’”) (quoting

Illinois Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979)). “Other rights,

even the most basic, are illusory if the right to vote is undermined.” Wesberry v. Sanders,

376 U.S. 1, 17 (1964). Moreover, “[t]he right to vote is protected in more than the initial

allocation of the franchise. Equal protection applies as well to the manner of its exercise.” Bush

v. Gore, 531 U.S. 98, 104 (2000); League of Women Voters of Ohio, 548 F.3d at 476 (quoting the

same). Two aspects of “the manner of its exercise” warrant special attention: “[t]he Equal

Protection Clause applies when a state either classifies voters in disparate ways or places

restrictions on the right to vote.” Obama for America, 697 F.3d at 428 (emphasis added)

(internal citations omitted).

Of course, “the Constitution provides that States may prescribe “‘[t]he Times, Places and

Manner of holding Elections for Senators and Representatives,’ Art. I § 4, cl. 1, and the Court

therefore has recognized that States retain the power to regulate their own elections.” Burdick,

504 U.S. at 433; Ne. Ohio Coal. for the Homeless v. Husted, 696 F.3d 580, 592 (6th Cir. 2012).

And practically, “there must be a substantial regulation of elections if they are to be fair and

honest and if some sort of order, rather than chaos, is to accompany the democratic processes.”

Storer v. Brown, 415 U.S. 724, 730 (1974).

“When equal protection challenges ask us to resolve these competing interests, we

calibrate the equal protection standard to ‘[t]he precise character of the state’s action and the

nature of the burden on voters.’” Ne. Ohio Coal. for the Homeless, 696 F.3d at 592 (quoting

Obama for America, 697 F.3d at 428). State regulations that do not treat similarly situated voters

differently and do not burden the fundamental right to vote are assessed through rational basis

review. Obama for America, 697 F.3d at 429; Ne. Ohio Coal. for the Homeless, 696 F.3d at 592.

On the other end of the spectrum, strict scrutiny applies to state regulations that impose “severe”

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 15

burdens on the fundamental right to vote. Obama for America, 697 F.3d at 429 (citing Harper,

383 U.S. at 670, and Burdick, 504 U.S. at 434).

“For the majority of cases falling between these extremes, we apply the ‘flexible’

Anderson-Burdick balancing test.” Ne. Ohio Coal. for the Homeless, 696 F.3d at 592 (quoting

Obama for America, 697 F.3d at 429). The Anderson-Burdick test provides as follows:

A court considering a challenge to a state election law must weigh “the character

and magnitude of the asserted injury to the rights protected by the First and

Fourteenth Amendments that the plaintiff seeks to vindicate” against “the precise

interests put forward by the State as justifications for the burden imposed by its

rule,” taking into consideration “the extent to which those interests make it

necessary to burden the plaintiffs’ rights.”

Burdick, 504 U.S. at 434 (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)). “There is

no ‘litmus test’ to separate valid from invalid voting regulations; courts must weigh the burden

on voters against the state’s asserted justifications and ‘make the “hard judgment” that our

adversary system demands.’” Obama for America, 697 F.3d at 429 (quoting Crawford v. Marion

Cnty. Election Bd., 553 U.S. 181, 190 (2008) (Stevens, J., announcing the judgment of the

Court)). Even a minimal burden “must be justified by relevant and legitimate state interests

‘sufficiently weighty to justify the limitation.’” Crawford, 553 U.S. at 191 (quoting Norman v.

Reed, 502 U.S. 279, 288–89 (1992)).

The district court “characterize[d] the overall degree of burden on voting imposed by SB

238 and Directive 2014-17 as significant although not severe.” R. 72 (D. Ct. Op. and Order at

53) (Page ID #5900). Focusing on SB 238, the district court found that its elimination of

“Golden Week” burdened African American and low-income voters in two ways. Id. at 50 (Page

ID #5897). First, SB 238 in conjunction with Directive 2014-17 reduced the overall number of

EIP voting days from 35 to 28 days. The district court noted evidence in the record that 67,408

Ohioans voted in 2008 during Golden Week; 26,230 did so in 2010; and 89,224 voters did so in

2012. Id. The district court also credited statistical and survey analysis by Plaintiffs’ expert

Smith that African American voters in Ohio have higher EIP voting rates than white voters, and

that African American voters in the 2008, 2010, and 2012 elections “disproportionately cast EIP

absentee ballots on days that would have been eliminated by SB 238 and Directive 2014-06.” R.

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 16

72 (D. Ct. Op. and Order at 32, 50) (Page ID #5879, 5897); R. 18-1 (Smith Rep. at 31) (Page ID

#192). The district court cited four other statistical studies in the record on racial early-voting

patterns in Ohio that it found supported Smith’s conclusions. Id. at 45–46 (Page ID #5892–93).

Second, the district court concluded that the elimination of Golden Week “burdens the

voting rights of lower income and homeless individuals” because the record reflected that such

individuals “move frequently” as well as “lack access to transportation,” which combine to make

it harder for such individuals to maintain accurate registration. R. 72 (D. Ct. Op. and Order at

51) (Page ID #5898). Thus, the ability to register and vote on the same day “can make the

difference between being able to exercise the fundamental right to vote and not being able to do

so.” Id. The court pointed to evidence in the record that 12,842 voters used Golden Week to

register or update their registration and vote in 2008; 1,651 voters did so in 2010; and

5,844 voters did so in 2012. Id.

Turning to Directive 2014-17, the district court found that it burdened African American

and lower-income voters by eliminating all evening voting hours for non-presidential elections

and by providing only one Sunday of EIP voting, the Sunday before Election Day. Id. at 51–53

(Page ID #5898–5900). The district court noted that the record reflected that lower-income

voters are “more likely to rely on public transportation and work wage-based jobs wherein they

are less likely” to be able to vote between 8 a.m. and 5 p.m. at the one early-voting location

permitted in each county, which might be a great distance away. Id. at 53 (Page ID #5900).

Regarding the elimination of all but one Sunday of EIP voting, the court pointed to evidence in

the record that since the instatement of EIP voting, African Americans have come to rely on

Sunday voting through “Souls to the Polls initiatives,” in which churches have leveraged the

transportation they already provide to and from church to bring voters to EIP voting locations.

Id. at 52 (Page ID #5899). Souls to the Polls organizers reported that, during the one permitted

day of Sunday voting during the 2012 general election, there were long lines of mainly African

American voters. Id. While the district court acknowledged that Souls to the Polls organizers

could switch to the two Saturdays that are still designated EIP voting days under Directive 2014-

17, the court concluded that this would still impose “some burden” because churches are already

organized to provide transportation on Sundays. Id. at 53 (Page ID #5900).

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 17

Therefore, because the district court found that the burden imposed on Plaintiffs was

“significant,” it proceeded to apply the Anderson-Burdick test to SB 238 and Directive 2014-17.

R. 72 (D. Ct. Op. and Order at 55) (Page ID #5902).

Defendants argue that rational basis review, rather than the Anderson-Burdick test, is the

proper standard of review for two reasons. First, they argue that “[t]he ‘right to vote’ has never

included the ‘right to receive absentee ballots.’” Appellants Br. at 18 (quoting McDonald v. Bd.

of Election Comm’rs of Chicago, 394 U.S. 802, 807 (1969)). Second, Defendants argue that

when a facially neutral voting law is at issue, as SB 238 and Directive 2014-17 are, the Supreme

Court in Crawford held that Anderson-Burdick applies only if the law “severely burdens the right

to vote of the general class of state voters.” Id. at 19. Otherwise, Defendants assert that

traditional Equal Protection Clause principles govern—which require proof of discriminatory

intent—and Plaintiffs have not established that either SB 238 or Directive 2014-17 was adopted

with discriminatory intent. Id. at 19, 27. Finally, if Anderson-Burdick review does apply,

Defendants argue that the district court improperly determined that the burden imposed on voters

represented by Plaintiffs is “significant.” Id. at 31.

1. The District Court Properly Applied Anderson-Burdick Review

We addressed Defendants’ first argument regarding McDonald in Obama for America.

697 F.3d 423. In McDonald, the Supreme Court did not apply rational basis review to the

challenged Illinois statute allowing only certain categories of voters to receive absentee ballots

solely because absentee ballots were at issue. Rather,

[t]he McDonald plaintiffs failed to make out a claim for heightened scrutiny

because they had presented no evidence to support their allegation that they were

being prevented from voting. See O’Brien v. Skinner, 414 U.S. 524, 529 (1974)

(“Essentially the Court’s disposition of the claims in McDonald rested on failure

of proof.”); Goosby v. Osser, 409 U.S. 512, 520–22 [(1973)] (finding that

McDonald itself suggested a different result if plaintiffs had presented evidence

that the state was effectively preventing them from voting).

Obama for America, 697 F.3d at 431 (emphasis added).

Thus, in Obama for America, we held that the district court properly applied the

Anderson-Burdick balancing test, rather than rational basis review, to evaluate whether the

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 18

challenged Directive’s elimination of early in-person voting for the three days immediately

preceding Election Day violated the Equal Protection Clause. Id. Unlike the plaintiffs in

McDonald, we noted that “Plaintiffs introduced extensive evidence that a significant number of

Ohio voters will in fact be precluded from voting without the additional three days of in-person

early voting.” Id. This evidence included “statistical studies that estimated approximately

100,000 Ohio voters would choose to vote during the three-day period before Election Day, and

that these voters are disproportionately ‘women, older, and of lower income and education

attainment,’” groups which the plaintiffs represented. Id. (internal citation omitted). The

defendants in that case also argued that the plaintiffs would not actually be precluded from

voting as required by McDonald because they had “ample” other means of voting, including by

mail, voting EIP at other times, or on Election Day. Id. However, we held not clearly erroneous

the district court’s conclusion that early voters would not be able to exercise their right to vote in

person because the challenged Directive also eliminated all evening and weekend hours of EIP

voting, times during which early voters would likely have voted in the past because they tend to

have lower incomes and less education than election day voters. Id.

We did not read McDonald to require proof that there was no possibility that the

plaintiffs would find a way to adjust and vote through the remaining options. We acknowledged

that the challenged law “does not absolutely prohibit early voters from voting,” but focused on

the evidence in the record that the plaintiffs’ “ability to cast a ballot is impeded by Ohio’s

statutory scheme.” Id. at 433. To the extent that McDonald spoke in terms of “precluding” an

individual from voting, which might imply the necessity of such proof, we note that McDonald

was decided before the development of the Anderson-Burdick test. Thus, the McDonald Court

applied a two-tier test for evaluating restrictions on the right to vote, rational basis review for no

burdens and strict scrutiny for “severe” burdens, a threshold that more clearly invites

consideration of “preclusion.” However, as noted above, that two-tier test has evolved into the

Anderson-Burdick framework, under which burdens that fall between those two extremes can

still be found to violate the Equal Protection Clause. In more recent cases, the Supreme Court

has not required absolute certainty in predicting how many voters would be prevented from

voting by laws that impose burdens on the right to vote. See, e.g., Crawford, 553 U.S. at 221

(Souter, J., dissenting) (stating that “Petitioners, to be sure, failed to nail down precisely how

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 19

great the cohort of discouraged and totally deterred voters will be, but empirical precision

beyond the foregoing numbers has never been demanded for raising a voting-rights claim.” and

citing Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 461–62

(2008) (Roberts, C. J., concurring) (“Nothing in my analysis requires the parties to produce

studies regarding voter perceptions on this score”); Dunn v. Blumstein, 405 U.S. 330, 335 n.5

(1972) (“[I]t would be difficult to determine precisely how many would-be voters throughout the

country cannot vote because of durational residence requirements.”); and Bullock v. Carter,

405 U.S. 134, 144 (1972) (taking account of “the obvious likelihood” that candidate filing fees

would “fall more heavily on the less affluent segment of the community, whose favorites may be

unable to pay the large costs”)). Thus, in this case the district court properly held that whether

voters might adjust to vote during a different time in EIP voting such that overall turnout might

not be affected “is not determinative of the Equal Protection analysis.” R. 72 (D. Ct. Op. and

Order at 50) (Page ID #5897).3

Like the plaintiffs in Obama for America, Plaintiffs in this case presented ample evidence

that African American, lower-income, and homeless voters disproportionately have used in past

elections the EIP voting times that Directive 2014-17 and SB 238 eliminated, and that the

number of individuals who had previously voted during these periods was not insignificant. For

example, the number of voters in Golden Week alone ranged from 26,230 in 2010 to 89,224 in

2012. R. 72 (D. Ct. Op. and Order at 50) (Page ID #5897). And the regulations at issue in the

case reduce the overall time for EIP voting more than the three days that had been eliminated in

Obama for America. Moreover, unlike the plaintiffs in Obama for America, Plaintiffs also

presented evidence to show that voting by mail is not actually a viable “alternative means of

access to the ballot” for the groups they represent. Cf. Obama for America, 697 F.3d at 440

3

In a relatively recent case, the Second Circuit considered a claim that a New York statute allowing

absentee voting for all elections except elections for political party county committees violated the First Amendment

by impermissibly burdening New York citizens’ right to vote. Price v. New York State Bd. of Elections, 540 F.3d

101, 103-04 (2d Cir. 2008). The district court had analyzed the statute under rational basis review, citing

McDonald, but the Second Circuit held that the law should have been analyzed under the Anderson-Burdick

balancing test. Id. at 108-09 (“The defendants assert that pure rational basis review should be utilized in this case in

reviewing the constitutionality of Election Law § 7–122. They are incorrect. Under Burdick’s ‘flexible standard,’

the court must actually ‘weigh’ the burdens imposed on the plaintiff against ‘the precise interests put forward by the

State,’ and the court must take ‘into consideration the extent to which those interests make it necessary to burden the

plaintiff’s rights.’”) (internal citation omitted) (quoting Anderson, 460 U.S. at 789).

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 20

(White, J., concurring) (noting that the study in the record “did not consider the extent to which

these voters would or could avail themselves of other voting options, either by mail ballot or in-

person absentee ballot at other times, or in-person voting on election day.”) (emphasis added).

The district court noted that “the record is undisputed that African Americans, lower-income

individuals, and the homeless are distrustful of the mail and/or voting by mail.” R. 72 (D. Ct.

Op. and Order at 54) (Page ID #5901). Additionally, the district court considered the fact that

“[t]he associated costs and more complex mechanics of voting by mail, coupled with other

information in the record concerning the enumerated groups including homelessness, lower

educational attainment, more limited financial resources, reliance on public transportation, and

transience” to bolster its conclusion that “voting by mail may not be a suitable alternative for

many voters.” Id. The record also reflected that lower-income voters, because of their reliance

on public transportation and higher likelihood of working in wage-based jobs, would face

substantial difficulties in voting between 8 a.m. and 5 p.m. Id. at 53 (Page ID #5900). Under

Obama for America, then, the district court properly concluded that Plaintiffs had presented

sufficient evidence that the groups they represent are in fact significantly burdened by Directive

2014-17 and SB 238 such that McDonald’s rational basis standard does not apply.4

2. Crawford Does Not Foreclose Applying Anderson-Burdick Review

In Northeast Ohio Coalition for the Homeless, we squarely addressed the applicability of

Anderson-Burdick to facially neutral restrictions on voting. 696 F.3d 580. The State defendant

in that case argued that the challenged practice—“Ohio’s automatic disqualification rule for

wrong-precinct ballots”—“treats all voters equally and therefore does not involve any

4

To the extent that the district court relied on Judge White’s concurrence in Obama for America and Bush

v. Gore as a separate rationale for its decision, see id. at 49–50 (Page ID #5896–97), we first note that that analysis

is not necessary to our holding that the district court properly did not apply McDonald’s rational basis standard of

review. At the same time, we do think the broader context in which Ohio statutorily imposed EIP voting—as a

remedial measure to address such long lines for voting in 2004 that many voters simply gave up trying to vote—is

relevant as additional evidence suggesting that voters whom Plaintiffs represent may not in fact easily adjust to

voting on Election Day if SB 238 and Directive 2014-17 were to remain in effect. Moreover, while Bush v. Gore

did involve disparate treatment, rather than burdens on the fundamental right to vote, we nonetheless find its

motivating principle instructive in the present case given that the Equal Protection Clause can be triggered by either

disparate treatment or burdens. That is, “[h]aving once granted the right to vote on equal terms”—such as

expanding early voting opportunities—“the State may not, by later arbitrary and disparate treatment, value one

person’s vote over that of another”—for example, by making it substantially harder for certain groups to vote than

others. Bush v. Gore, 531 U.S. at 104–05.

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 21

classification that could violate the equal protection standard.” Id. at 592 (internal quotation

marks omitted). In responding to this argument, we explained that

[T]he State overlooks the fact that a clear majority of the Supreme Court in

Crawford applied some form of Burdick’s burden-measuring equal protection

standard to Indiana’s facially neutral voter-identification requirement. See

553 U.S. at 189–91 (Stevens, J., announcing the judgment of the Court), 204

(Scalia, J., joined by Alito and Thomas, JJ., concurring in the judgment) (“To

evaluate a law respecting the right to vote—whether it governs voter

qualifications, candidate selection, or the voting process—we use the approach set

out in Burdick. . . .”), 211 (Souter, J., dissenting).

Id. Because the plaintiffs in that case had “‘demonstrated that their right to vote is . . . burdened

by Ohio’s law that rejects wrong-precinct ballots regardless of poll-worker error,” we held that

“[t]he Anderson-Burdick standard . . . applies.” Id. (quoting Obama for America, 697 F.3d at

430); see also Obama for America, 697 F.3d at 428–29 (stating that the “[t]he Equal Protection

Clause applies when a state either classifies voters in disparate ways or places restrictions on the

right to vote”) (emphasis added) (internal citations omitted). However, as the plaintiffs in

Northeast Ohio Coalition for the Homeless asserted that the law at issue created a burden on

provisional voters generally, rather than on a subclass of provisional voters, we did not address

Defendants’ more specific argument here that Anderson-Burdick requires a showing of a burden

on voters generally.

Contrary to Defendants’ assertion, a majority of the Court in Crawford did not expressly

hold that a challenger must demonstrate that a voting restriction burdens voters generally in order

to trigger scrutiny under Anderson-Burdick. The opinion authored by Justice Stevens

announcing the judgment of the Court, which gained only two other votes, did not explicitly

reject the petitioners’ argument that the middle level of scrutiny under the Anderson-Burdick

balancing test could be triggered by evidence of burdens on a subgroup of voters, instead of all

voters; rather, the Court held that “on the basis of the evidence in the record it is not possible to

quantify either the magnitude of the burden on this narrow class of voters or the portion of the

burden imposed on them that is fully justified.” Crawford, 553 U.S. at 200; see also id. at 202

(“In sum, on the basis of the record that has been made in this litigation, we cannot conclude that

the statute imposes ‘excessively burdensome requirements’ on any class of voters.”) (emphasis

added) (citation omitted). Thus, Justice Stevens weighed the evidence of minimal burdens of the

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 22

law on voters generally, the vast majority of whom had IDs, and found that burden justified by

the state’s interests. Id. at 202. In contrast, Justice Scalia’s concurrence, which two other

Justices joined, expressly would have required the plaintiffs to demonstrate that voters generally

were burdened for the Anderson-Burdick balancing test to apply. Id. at 205–06 (Scalia, J.,

concurring). Justice Scalia cited decisions of the Court outside of the elections context holding

that a generally applicable law does not violate the Equal Protection Clause when it merely

disproportionately burdens a subgroup of people absent evidence of discriminatory intent. Id. at

207–08. Justice Souter’s dissent, joined by Justice Ginsburg, assumed that Anderson-Burdick

balancing could be triggered by burdens on subgroups, and disagreed with Justice Stevens that

the petitioners had not presented sufficient evidence of a more than minimal burden on the

subgroup of voters they represented. Id. at 237 (Souter, J., dissenting).

Thus, a majority of the justices in Crawford either did not expressly reject or in fact

endorsed the idea that a burden on only a subgroup of voters could trigger balancing review

under Anderson-Burdick. Alternatively, as the narrowest basis of the judgment of the Court,

Justice Stevens’s opinion may be viewed as “the holding of the Court” given the “fragmented”

Crawford opinions. See, e.g., Marks v. United States, 430 U.S. 188, 193 (1977) (“When a

fragmented Court decides a case and no single rationale explaining the result enjoys the assent of

five Justices, the holding of the Court may be viewed as that position taken by those Members

who concurred in the judgments on the narrowest grounds.”) (internal quotation marks omitted).

Both Justice Stevens and Justice Scalia held that the Indiana law was constitutional, but Justice

Scalia reached further and held that challengers to a voting restriction must show that it burdens

voters generally. Thus, Justice Stevens’s opinion is narrower. See Frank v. Walker, --- F. Supp.

2d ----, No. 11-CV-01128, 2014 WL 1775432, at *4 (E.D. Wis. Apr. 29, 2014) (holding that

Justice Stevens’s opinion in Crawford is the narrower ground for the opinion under Marks).

Finally, it is worth noting that in Anderson, the Supreme Court in fact assessed the burden

imposed by the challenged law by looking to its impact on a subgroup of voters. Anderson,

460 U.S. at 792 (holding that “[i]t is clear, then, that the March filing deadline places a particular

burden on an identifiable segment of Ohio’s independent-minded voters,” specifically

Anderson’s supporters, but not assessing whether the deadline burdens all voters).

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 23

Therefore, that Plaintiffs presented evidence only of SB 238 and Directive 2014-17’s

burdens on African American, lower-income, and homeless voters does not automatically mean

that only rational basis review or standard Equal Protection Clause analysis applies. Crawford

merely stands for the proposition that Plaintiffs must present more evidence than the petitioners

did in that case to show that the subgroups of voters they represent are more than minimally

burdened.

As discussed previously, Plaintiffs presented extensive statistical, survey, and anecdotal

evidence that SB 238 and Directive 2014-17 will disproportionately burden the ability of African

American, lower-income, and homeless individuals to vote. The petitioners in Crawford had not

presented any evidence in the record that even estimated the number of individuals who lacked

identification cards. Crawford, 553 U.S. at 200. Nor did the affidavits or depositions in the

record of lower-income individuals or elderly voters in Crawford substantiate that they in fact

faced difficulties in obtaining identification cards. Id. at 201. In contrast, Plaintiffs here

presented statistical and survey evidence that indicated that thousands of individuals whom they

represent had voted in past elections during the times that have been eliminated by SB 238 and

Directive 2014-17, as well as numerous depositions, affidavits, and expert testimony

documenting that the groups Plaintiffs represent have relied on the eliminated EIP voting times

and would face difficulties in voting without them.5

In sum, we hold that the district court’s characterization of the overall burden imposed by

SB 238 and Directive 2014-17 as significant, but not severe, was not clearly erroneous given the

extensive evidence in the record of the burdens African American, lower-income, and homeless

voters will face in voting, absent the times eliminated by SB 238 and Directive 2014-17.6 It

5

The other cases Defendants cite as supporting its argument that the burdens in this case are not significant

are easily distinguishable. The Seventh Circuit considered the claim of “working mothers” seeking the right to vote

absentee in Griffin v. Roupas with nothing more than a complaint before it because of the procedural posture of the

case. 385 F.3d 1128 (7th Cir. 2004). The plaintiffs in Common Cause/Georgia v. Billups “failed to identify a single

individual who would be unable to vote because of the Georgia statute or who would face an undue burden to obtain

a free voter identification card.” 554 F.3d 1340, 1354 (11th Cir. 2009). Of course, the best comparison to the

present case for evaluating burdens is Obama for America, and as we discussed above, Plaintiffs in this case

presented even more evidence than the plaintiffs in that case did to substantiate their claim that the voting rights of

groups they represent are in fact significantly burdened by SB 238 and Directive 2014-17.

6

Defendants assert in their Reply Brief that “Plaintiffs identify no case that treats the ultimate finding of

whether a burden is severe (and subject to strict scrutiny), significant (and subject to intermediate scrutiny), or

minimal (and subject to rational-basis review) as one appropriate for fact-finding.” Appellants Reply Br. at 6. In

fact, in Obama for America, we did precisely that:

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 24

therefore properly applied the Anderson-Burdick balancing test. We next turn to the district

court’s evaluation of Defendants’ asserted justifications for SB 238 and Directive 2014-17.

3. The State’s Justifications Do Not Outweigh the Significant Burden on Voters

Once a court has determined that a law burdens voters, under Anderson-Burdick those

burdens must be weighed against “the precise interests put forward by the State as justifications

for the burden imposed by its rule,” taking into consideration “the extent to which those interests

make it necessary to burden the plaintiff’s rights.” Anderson, 460 U.S. at 789 (emphasis added).

Put differently, the state must articulate specific, rather than abstract state interests, and explain

why the particular restriction imposed is actually necessary, meaning it actually addresses, the

interest put forth. See Obama for America, 697 F.3d at 433–34 (assessing under Anderson-

Burdick whether the state had presented actual evidence to support the justifications it provided

for the challenged law).

Before even articulating these interests, Defendants appear to argue that we held in

Obama for America that a law such as SB 238 or Directive 2014-17 would automatically survive

this scrutiny of state interests. Appellants Br. at 21 (quoting our statement in Obama for

America, 697 F.3d at 433–34, that “If the State had enacted a generally applicable,

nondiscriminatory voting regulation that limited in-person early voting for all Ohio voters, its

‘important regulatory interests’ would likely be sufficient to justify the restriction.’”). That

statement, of course, was not central to our holding in that case and does not control the present

case. Moreover, the quoted language in that sentence is in fact from Burdick. 504 U.S. at 434

(stating that “when [a regulation] imposes only ‘reasonable, nondiscriminatory restrictions’ upon

[voting rights], the State’s important regulatory interests are generally sufficient to justify the

restrictions”) (quoting Anderson, 460 U.S. at 788). The key in that statement is the word

The State argues that the burden on non-military voters is slight because they have “ample” other

means to cast their ballots, including by requesting and mailing an absentee ballot, voting in

person prior to the final weekend before Election Day, or on Election Day itself. However, the

district court concluded that because early voters have disproportionately lower incomes and less

education than election day voters, and because all evening and weekend voting hours prior to the

final weekend were eliminated by Directive 2012–35, “thousands of voters who would have voted

during those three days will not be able to exercise their right to cast a vote in person.” Based on

the evidence in the record, this conclusion was not clearly erroneous.

Obama for America, 697 F.3d at 431 (emphasis added) (internal citation omitted).

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 25

generally; the Burdick Court was merely making clear that not all restrictions on voting will be

struck down simply because they impose any kind of burden, as states do have the power to

regulate elections generally. Burdick itself involved a nondiscriminatory restriction on write-in

voting, and the Court still probed the state’s asserted justifications for the restriction in the

manner required by Anderson. Burdick, 504 U.S. at 434. Indeed, in a more recent case, the

Supreme Court has tied this statement’s applicability to situations in which the burden imposed

is modest. Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 452

(2008) (“If a statute imposes only modest burdens, however, then ‘the State’s important

regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions’

on election procedures.”) (emphasis added) (quoting Anderson, 460 U.S. at 788).

We also note that how Ohio’s early-voting system compares to that of other states is not

relevant under the Anderson-Burdick balancing test. The test directs courts to weigh the burdens

imposed on voters in a particular state against the justifications that that state has proffered for

the challenged law or practice that imposes those burdens. Early voting does not necessarily

play the same role in all jurisdictions in ensuring that certain groups of voters are actually able to

vote. Thus, the same law may impose a significant burden in one state and only a minimal

burden in another. Similarly, a particular state may have stronger justifications for a law that

burdens voters than other states with the same law.

Thus, we will examine in turn each of Defendants’ asserted justifications—preventing

voter fraud and containing costs for SB 238, and uniformity for Directive 2014-17—under the

Anderson-Burdick balancing framework.

i. Fraud

Regarding SB 238, Defendants argue that it is necessary as a measure to reduce fraud

arising from same-day registration and voting during Golden Week. Appellants Br. at 26;

General Assembly Br. at 38. Defendants point to the testimony by the OAEO Director that the

“‘registration deadline’ exists so officials ‘can confirm that a voter is who they say they are

before they cast a ballot.’” Id. at 26 (citing R. 54-4 (Keeran Decl. at 7) (Page ID #1851)).

Defendants assert that “[w]hen the deadline is later than the start of voting, votes might be

counted even though cast ‘by people who fraudulently registered during this period, because the

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 26

election officials could not confirm their registration status before Election Day.’” Id. The Ohio

General Assembly points to declarations of individual county election officials that “historically

voter fraud was most likely to occur during Golden Week,” R. 68-2 (Ward Decl. ¶ 4) (Page ID

#5123), or that it is difficult to verify an individual’s residence when someone registers and votes

on the same day, R. 68-3 (Cuckler Decl. ¶ 9) (Page ID #5511), or that some individuals were

able to cast absentee ballots in one county and then register and cast an EIP Ballot during Golden

Week in another county, id. ¶ 8 (Page ID #5510–11). They argue that the Crawford Court

considered similar evidence regarding fraud to hold that the state’s interest in that case was

sufficiently important to outweigh burdens on voters. Finally, the General Assembly argues that

the district court “trivialized or ignored this unrefuted evidence” and improperly substituted its

own judgment about how fraud from absentee voting could be “best” handled. General

Assembly Br. at 41.

Weighing the state’s asserted interest in preventing voter fraud against the significant

burden the elimination of Golden Week places on Plaintiffs, we conclude that Defendants have

not met their burden to establish that their interests outweigh these burdens. To be sure, “[t]here

is no question about the legitimacy or importance of the State’s interest in counting only the

votes of eligible voters. . . . While the most effective method of preventing election fraud may

well be debatable, the propriety of doing so is perfectly clear.” Crawford, 553 U.S. at 196. This

does not mean, however, that the State can, by merely asserting an interest in preventing voter

fraud, establish that that interest outweighs a significant burden on voters. Defendants did not

provide more than a handful of actual examples of voter fraud, and their general testimony

regarding the difficulties of verifying voter registration before counting ballots did not clearly

pertain to problems with Golden Week specifically. The district court properly identified that the

specific concern Defendants expressed regarding voter fraud—that the vote of an EIP voter

would be counted before his or her registration could be verified—was not logically linked to

concerns with voting and registering on the same day, but rather “has more to do with the

registration process and verification of absentee ballots” generally. R. 72 (D. Ct. Op. and Order

at 56) (Page ID #5903). The court explained that, since Ohio law requires that officials segregate

absentee ballots and not count them until registration is verified, see, e.g., R. 53-10 (Directive

2012-36) (Page ID #1625‒26); R. 58-16 (Clyde Dec. ¶ 16) (Page ID #2169), there is no reason to

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 27

think that the registration of voters who registered and voted on the same day during Golden

Week would be any harder to verify than an individual who registered on the last permissible day

and then voted the next day, or for that matter than someone who voted very close to the

election. R. 72 (D. Ct. Op. and Order at 56) (Page ID #5903). Defendants did not explain why it

is harder to segregate and count later the absentee ballots of individuals who vote and register on

the same day as opposed to segregating absentee ballots that are returned a different way,

particularly given that officials would have at least 30 days to verify the registration of those who

register and vote during Golden Week. Thus, the district court properly concluded that

Defendants did not meet their burden of explaining why eliminating Golden Week serves to

prevent a “precise” problem of voter fraud in a way that is “necessary” to burden the voters

Plaintiffs’ represent, as opposed to a measure that might more directly target the asserted

problem without burdening voters. Anderson, 460 U.S. at 789.7

Moreover, the General Assembly’s argument that Crawford suggests it sufficiently met

its burden to demonstrate that its interest in fraud prevention outweighs the significant burden on

Plaintiffs is misplaced. The Crawford Court did not hold that scattered historical examples of

voter fraud necessarily establish a sufficient state interest to overcome any burden imposed on

voters; given the simply minimal burden that the petitioners had shown on voters in that case, the

Court essentially only engaged in a rational basis review of the state’s asserted interest in

preventing voter fraud, not the more piercing scrutiny that a greater burden would require under

Anderson-Burdick. Crawford, 553 U.S. at 194–96, 202. Here, in contrast, the district court

concluded that the burden on Plaintiffs was significant. Thus, its more searching review of

Defendants’ asserted justification in preventing voter fraud was warranted.

7

While we do not find that other states’ electoral laws and practices are relevant to our assessment of the

constitutionality or legality of SB 238 and Directive 2014-17, we note that Defendants’ own expert Professor

McCarty reported that “Ohio is quite an outlier” with regard to its registration deadline. R. 67-1 (McCarty Rebuttal

Rep. at 22) (Page ID #5088). He continues that “[i]n every state except New Mexico, a voter can register and vote

within 15 days of the election. In most cases, this can be accomplished within a week of the election. Ohio and

New Mexico are apples to these oranges.” Id. Thus, other states do not appear to be overly concerned with voter

fraud arising from allowing voters to register even closer to Election Day than Ohio allows.

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 28

ii. Cost

Defendants next argue that SB 238 and Directive 2014-17 are necessary as cost

containment measures. They argue that increasing EIP voting would “increase the costs and

administrative burdens” on Election Boards, such as requiring additional staff. Appellants Br. at

25. Defendants also assert that they determined the days and times to eliminate strategically so

as “to be more efficient with our tax payer dollars” because “[a] relatively smaller proportion of

voters . . . voted during the times Ohio eliminated, compared to the times it kept.” Id. at 25. The

Ohio General Assembly adds that the district court improperly dismissed the specific cost

estimates of retaining EIP voting provided by several local election officials simply because they

“lack[ed] a frame of reference” and ignored less easily quantifiable burdens of Election Boards

“having to divert manpower” away from other tasks to administering EIP voting. General

Assembly Br. at 45. They argue that they did not need to show that they could not handle the

costs of the old system, as the district court suggested. Id.

We also conclude that Defendants’ asserted interest in reducing costs does not adequately

justify the burdens SB 238 and Directive 2014-17 place on voters. In Obama for America, we

held that the State’s asserted interest in reducing costs and administrative burdens did not justify

the burdens on voters because there was “no evidence that local boards of elections have

struggled to cope with early voting in the past, no evidence that they may struggle to do so

during the November 2012 election,” and because at least one local board, Cuyahoga County,

said it had budgeted for EIP voting. 697 F.3d at 433–34. Our focus on whether local boards

would “struggle” to handle costs in Obama for America makes clear that it is not enough merely

to assert that a restriction on voting saves costs. Arguably some cost-saving rationale could be

identified in most voting restrictions. Rather, where more than minimal burdens on voters are

established, the State must demonstrate that such costs would actually be burdensome.

The district court thus properly concluded that Defendants had not demonstrated that they

would “struggle” with the costs of maintaining EIP voting. While Defendants presented specific

cost estimates from a handful of election boards for reinstating Golden Week, the district court

properly noted that those figures “lack[ed] a frame of reference” in that Defendants did not

indicate whether or how those costs would be burdensome overall. R. 72 (D. Ct. Op. and Order

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 29

at 57) (Page ID #5904). Cuyahoga County again filed an amicus brief saying it had already

budgeted money for Golden Week and the additional weekend voting days for the 2014 election.

R. 28 (Am. Cur. Br. Cuyahoga Cnty. at 8–9) (Page ID #600‒01). Nor did Defendants present

specific estimates of the costs of maintaining the eliminated days of weekend voting. The

district court also pointed to evidence in the record that election boards are required by law to be

open during Golden Week, and only five of the eighty-eight counties statewide ran EIP voting at

sites other than their regular offices during the 2008 and 2010 elections. R. 72 (D. Ct. Op. and

Order at 59) (Page ID #5906). Thus, the court reasonably concluded that most election boards

would not have to bear substantial extra costs associated with maintaining an offsite location for

that period. Id. Moreover, like the State in Obama for America, Defendants did not present

evidence that the old EIP voting schedule, which included Golden Week and weekend voting,

“created undue or burdensome costs.” Id. at 58 (Page ID #5905).

iii. Uniformity

Finally, regarding Directive 2014-17, Defendants justify it as necessary to promote

uniformity. Appellants Br. at 24. Defendants argue that “uniformity makes it easier for the State

to educate voters about election days and hours.” Id. It also ensures fairness by making sure that

all voters can vote during the same times across counties. Id. And Defendants argue it reduces

litigation risks by ensuring equal treatment of voters. Id.

Again, we conclude this asserted interest fails to outweigh the burdens on Plaintiffs.

Defendants present only an abstract interest in uniformity that is not tied to the necessity of SB

238 and Directive 2014-17 specifically. Uniformity can be important to make voter education

easier, but Defendants do not explain why a uniform EIP voting schedule could not also include

Golden Week and the other eliminated EIP voting times. As the district court explained,

“uniformity, standing alone,” is not an interest important enough to significantly burden

Plaintiffs’ ability to vote. R. 72 (D. Ct. Op. and Order at 60) (Page ID #5907); see also Obama

for America, 697 F.3d at 442 (White, J., concurring) (“The desire for uniformity has little to do

with the elimination of all weekend and after-hours in-person voting. Defendants offer no

explanation for curtailing hours other than on the final weekend, and uniformity without some

underlying reason for the chosen rule is not a justification in and of itself. Nor is there a showing

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 30

that eliminating all weekend and after-hours voting will in fact produce uniform access, as

opposed to uniform hours.”).

In sum, because we have concluded that none of the interests put forth by Defendants

sufficiently justify the significant burden that the district court found SB 238 and Directive 2014-

17 place on the voters whom Plaintiffs represent, we find that Plaintiffs are likely to succeed on

their Equal Protection Clause claim.

D. Voting Rights Act Section 2 Claim

Section 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973,8 provides that “[n]o voting

qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or

applied by any State or political subdivision in a manner which results in a denial or abridgement

of the right of any citizen of the United States to vote on account of race or color . . . .”

42 U.S.C. § 1973(a). In 1982, Congress amended the Voting Rights Act to make clear that

“Section 2, unlike other federal legislation that prohibits racial discrimination, does not require

proof of discriminatory intent. Instead, a plaintiff need show only that the challenged action or

requirement has a discriminatory effect on members of a protected group.” Moore v. Detroit

Sch. Reform Bd., 293 F.3d 352, 363 (6th Cir. 2002); see also Mixon v. Ohio, 193 F.3d 389, 407

(6th Cir. 1999) (“Section 2 of the Voting Rights Act requires only a showing of discriminatory

effect.”). Section 2(b) sets out the test for determining whether a challenged practice violates

Section 2(a):

A violation of subsection (a) of this section is established if, based on the totality

of circumstances, it is shown that the political processes leading to nomination or

election in the State or political subdivision are not equally open to participation

by members of a class of citizens protected by subsection (a) of this section in that

its members have less opportunity than other members of the electorate to

participate in the political process and to elect representatives of their choice.

42 U.S.C. § 1973(b).

8

The Voting Rights Act recently was transferred to 52 U.S.C. § 10301 et seq. We use its prior placement at

42 U.S.C. § 1973 for the purposes of this opinion.

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 31

In Thornburg v. Gingles, the Supreme Court endorsed nine factors, first listed in the

Senate Judiciary Committee report for the 1982 amendments to Section 2 (referred to as the

“Senate factors”), as relevant to assessing “the totality of the circumstances” in Section 2(b):

1. the extent of any history of official discrimination in the state or political

subdivision that touched the right of the members of the minority group to

register, to vote, or otherwise to participate in the democratic process;

2. the extent to which voting in the elections of the state or political subdivision

is racially polarized;

3. the extent to which the state or political subdivision has used unusually large

election districts, majority vote requirements, anti-single shot provisions, or

other voting practices or procedures that may enhance the opportunity for

discrimination against the minority group;

4. if there is a candidate slating process, whether the members of the minority

group have been denied access to that process;

5. the extent to which members of the minority group in the state or political

subdivision bear the effects of discrimination in such areas as education,

employment and health, which hinder their ability to participate effectively in

the political process;

6. whether political campaigns have been characterized by overt or subtle racial

appeals;

7. the extent to which members of the minority group have been elected to

public office in the jurisdiction.

Additional factors that in some cases have had probative value as part of

plaintiffs’ evidence to establish a violation are:

[8.] whether there is a significant lack of responsiveness on the part of elected

officials to the particularized needs of the members of the minority group.

[9.] whether the policy underlying the state or political subdivision’s use of such

voting qualification, prerequisite to voting, or standard, practice or

procedure is tenuous.

478 U.S. 30, 36–37 (1986) (quoting S. REP. NO. 97-417 at 28–29). The Court added, however,

that the Senate Report makes clear that “this list of typical factors is neither comprehensive nor

exclusive” and that “‘there is no requirement that any particular number of factors be proved, or

that a majority of them point one way or the other.’” Id. at 45 (quoting S. REP. at 29).

In finding that Plaintiffs are likely to succeed on their Section 2 claim, the district court

first pointed to evidence in the record of a discriminatory effect on African American voters—

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 32

that the EIP voting hours and days eliminated by SB 238 and Directive 2014-17 would

“disproportionately impact African American voters resulting in less opportunity to participate in

the political process than other voters.” R. 72 (D. Ct. Op. and Order at 61) (Page ID #5908).

The court pointed to the statistical evidence that African Americans use EIP voting at higher

rates than others; to the expert testimony of Professor Roscigno and other evidence in the record

that African Americans “tend to disproportionately make up the groups that benefit the most

from same-day registration: the poor and the homeless”; that the provision of only one Sunday

of EIP voting “burdens the voting rights of African Americans by arbitrarily limiting Souls to the

Polls voting initiatives”; and that, because African Americans are more likely to be of lower-

socioeconomic status, they “tend to work hourly jobs and can find it difficult to find time to vote

during normal business hours.” Id. at 65–66 (Page ID #5912–13).

The district court also credited the testimony of Professor Roscigno as establishing

Senate factors one, two, three, five, six, seven, and nine such that “SB 238 and Directive 2014-17

interact with the historical and social conditions facing African Americans in Ohio to reduce the

opportunity to participate in the political process relative to other groups of voters.” R. 72 (D.

Ct. Op. and Order at 65) (Page ID #5912). While again conceding that Plaintiffs had not

established that voter turnout would necessarily be decreased overall, the district court explained

that “by its plain terms, § 2 is not necessarily about voter turnout but about opportunity to

participate in the political process compared to other groups.” Id. at 67 (Page ID #5914). And

Plaintiffs had, the district court concluded, “demonstrated a strong likelihood of establishing that

the combined effects of SB 238 and Directive 2014-17 result in fewer opportunities for African

Americans to participate in the electoral process.” Id. at 68 (Page ID #5915) (emphasis in

original).

Defendants make four arguments as to why the district court’s analysis is incorrect. First,

they argue that the district court improperly used the EIP voting system as it existed before SB

238 and Directive 2014-17 as its benchmark against which to measure the discriminatory effect

on African American voters. Appellants Br. at 39. In so doing, Defendants assert, the district

court used a “retrogression” standard, which is permissible only under Section 5 of the Voting

Rights Act. Id. at 39–42. Second, Defendants contend that the canon of constitutional avoidance

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 33

and federalism counsel in favor of not reading Section 2 to reach changes to early-voting systems

at all. Id. at 44. Third, Defendants argue that the district court “should not have looked at [the

Senate] factors at all to resolve this vote-denial claim.” Id. at 53 (emphasis in original). Finally,

focusing on the 2010 election data, Defendants contend that “Plaintiffs’ own evidence shows that

it cannot prove causation.” Id. at 55.

1. The Test for a Section 2 Vote Denial Claim

Section 2 applies to any discriminatory “standard, practice, or procedure . . . which

results in a denial or abridgement” of the right to vote. 42 U.S.C. § 1973(a) (emphasis added).

Abridgement’s “core meaning is ‘shorten,’” Reno v. Bossier Parish School Bd. (“Bossier II”),

528 U.S. 320, 333–34 (2000), or “[t]o reduce or diminish,” Black’s Law Dictionary (9th ed.

2009). Similarly, Section 2(b) directs courts to consider whether members of a protected class

have “less opportunity” to exercise their right to vote than other groups of voters, not simply

whether protected voters only have no opportunity to vote. 42 U.S.C. § 1973(b) (emphasis

added). In other words, Section 2 applies to any “standard, practice, or procedure” that makes it

harder for an eligible voter to cast a ballot, not just those that actually prevent individuals from

voting. Cf. Gingles, 478 U.S. at 45 n.10 (“Section 2 prohibits all forms of voting discrimination,

not just vote dilution.”); S. REP. NO. 97-417 at 30 (“Section 2 remains the major statutory

prohibition of all voting rights discrimination.”).

Courts have therefore found a range of “standard[s], practice[s], or procedure[s]” that

make it harder, but not necessarily impossible, for eligible voters to vote to fall within Section 2.

See, e.g., Mississippi State Chapter, Operation Push v. Allain, 674 F. Supp. 1245 (N.D. Miss.

1987), aff’d sub nom. Mississippi State Chapter, Operation Push, Inc. v. Mabus, 932 F.2d 400

(5th Cir. 1991) (restrictions on voter registration opportunities); Spirit Lake Tribe v. Benson

Cnty., No. 2:10-cv-095, 2010 WL 4226614 (D.N.D. Oct. 21, 2010) (location of polling places);

Brown v. Dean, 555 F. Supp. 502 (D.R.I. 1982) (same); Brooks v. Gant, No. Civ. 12-5003, 2012

WL 4482984 (D.S.D. Sept. 27, 2012) (number and location of early voting sites); Harris v.

Graddick, 615 F. Supp. 239 (M.D. Ala. 1985) (number of minority poll officials).

Thus, Plaintiffs’ claim that SB 238 and Directive 2014-17 disproportionately place

burdens on African American voters that make it harder for them to exercise their right to vote

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 34

than other groups of voters is encompassed within Section 2. It does not matter that Plaintiffs do

not argue that they are completely prevented from voting.

We also find unconvincing Defendants’ argument that Section 2 does not cover

challenges to early-voting systems, or that the canon of constitutional avoidance or federalism

concerns compel such a conclusion. We first note that Defendants have raised these arguments

for the first time on appeal. Generally, arguments raised for the first time on appeal are forfeited.

See, e.g., Armstrong v. City of Melvindale, 432 F.3d 695, 700 (6th Cir. 2006) (“[T]he failure to

present an issue to the district court forfeits the right to have the argument addressed on

appeal.”). Nevertheless, we briefly address both arguments for the sake of completeness.

As discussed above, the plain language of Section 2 does not exempt early-voting

systems from its coverage. Section 2 applies to any discriminatory “standard, practice, or

procedure . . . which results in a denial or abridgement” of the right to vote. 42 U.S.C. § 1973(a).

It does not specify that certain “standard[s], practice[s], or procedure[s]” are included within its

scope and others excluded. The Voting Rights Act contains a similarly broad definition of the

right to vote:

The terms “vote” or “voting” shall include all action necessary to make a vote

effective in any primary, special, or general election, including, but not limited to,

registration, listing pursuant to this chapter, or other action required by law

prerequisite to voting, casting a ballot, and having such ballot counted properly

and included in the appropriate totals of votes cast with respect to candidates for

public or party office and propositions for which votes are received in an election.

42 U.S.C. § 1973l(c)(1). This definition specifically notes that the right to vote “includ[es], but

[is] not limited to,” the specified examples. Id.

Nor has any court held that the Voting Rights Act does not apply to early-voting systems.

The Supreme Court has in fact held that the Voting Rights Act should be interpreted broadly:

Congress enacted the Voting Rights Act of 1965 for the broad remedial purpose

of “rid[ding] the country of racial discrimination in voting.” South Carolina v.

Katzenbach, 383 U.S. 301, 315 (1966). In Allen v. State Board of Elections,

393 U.S. 544, 567 (1969), we said that the Act should be interpreted in a manner

that provides “the broadest possible scope” in combating racial discrimination.

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 35

Chisom v. Roemer, 501 U.S. 380, 403–04 (1991) (emphasis added) (internal citations omitted).

Johnson v. Governor of Florida, 405 F.3d 1214 (11th Cir. 2005), in which the Eleventh Circuit

held that the Voting Rights Act does not apply to felon disenfranchisement laws, is easily

distinguishable because the court determined that the Fourteenth Amendment in fact permits

such laws and that the “Senate and House reports” for the Voting Rights Act “strongly suggest

. . . that Congress did not intend Section 2 of the Voting Rights Act to cover felon

disenfranchisement provisions.” Id. at 1228–29, 1232–33. Defendants do not point to a textual

basis in the Fourteenth Amendment or specific statements in the legislative history of the Voting

Rights Act that would compel a similar conclusion here.

Regarding Defendants’ federalism arguments, we find Congress’s statement in Section 2

that it applies to any discriminatory “standard, practice, or procedure” provides a sufficiently

clear statement of its intention to change the federal-state balance to encompass a “standard,

practice, or procedure” related to early voting if it produces discriminatory results in a way

prohibited by Section 2. “Congress considered the [results] test of [Section 2] ‘necessary and

appropriate to ensure full protection of the Fourteenth and Fifteenth Amendments rights.’” Bush

v. Vera, 517 U.S. 952, 992 (1996) (O’Connor, J., concurring) (quoting S. REP. NO. 97-417 at 27).

The Supreme Court has elsewhere repeatedly held that “the Reconstruction Amendments by their

nature contemplate some intrusion into areas traditionally reserved to the States.” Lopez v.

Monterey Cnty., 525 U.S. 266, 282 (1999). Finally, we note that the plain text of the National

Voter Registration Act does not contain a clear statement to the opposite effect; it specifically

states that “[n]othing in this chapter authorizes or requires conduct that is prohibited by the

Voting Rights Act of 1965.” 52 U.S.C. § 20510(d)(2).

Turning to the case law on Section 2, then, we note that the vast majority of cases have

concerned a different kind of claim—vote dilution. Vote dilution claims involve challenges to

methods of electing representatives—like redistricting or at-large districts—as having the effect

of diminishing minorities’ voting strength. Unsurprisingly, then, the case law has developed to

suit the particular challenges of vote dilution claims. A clear test for Section 2 vote denial

claims—generally used to refer to any claim that is not a vote dilution claim—has yet to emerge.

See, e.g., Janai S. Nelson, The Causal Context of Disparate Vote Denial, 54 B.C. L. REV. 579,

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 36

595 (2013) (“[T]he legal contours of vote denial claims remain woefully underdeveloped as

compared to vote dilution claims.”).

We read the text of Section 2 and the limited relevant case law as requiring proof of two

elements for a vote denial claim. First, as the text of Section 2(b) indicates, the challenged

“standard, practice, or procedure” must impose a discriminatory burden on members of a

protected class, meaning that members of the protected class “have less opportunity than other

members of the electorate to participate in the political process and to elect representatives of

their choice.” 42 U.S.C. § 1973(a)–(b). Second, the Supreme Court has indicated that that

burden must in part be caused by or linked to “social and historical conditions” that have or

currently produce discrimination against members of the protected class.9 Gingles, 478 U.S. at

47 (“The essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with

social and historical conditions to cause an inequality in the opportunities enjoyed by black and

white voters to elect their preferred representatives.”). In assessing both elements, courts should

consider “the totality of circumstances.” 42 U.S.C. § 1973(b).

Despite Defendants’ assertions to the contrary, we see no reason why the Senate factors

cannot be considered in assessing the “totality of the circumstances” in a vote denial claim,

particularly with regard to the second element. While the Court has noted that the Senate Report

indicates that “the enumerated factors will often be pertinent to certain types of § 2 violations,

particularly to vote dilution claims,” neither the Report nor the Court suggested that the factors

can be considered only in vote dilution claims. Gingles, 478 U.S. at 45. And several of the few

Circuit court decisions to address vote denial claims have expressly stated that the Senate factors

are relevant to vote denial claims. See, e.g., Gonzalez v. Arizona, 677 F.3d 383, 405–06 (9th Cir.

9

In the few cases considering vote denial claims, this second factor has often been expressed as a

“causation” requirement, or through statements that a plaintiff cannot establish a Section 2 violation merely by

showing a disproportionate impact or burden. See, e.g., Smith v. Salt River Project Agric. Improvement & Power

Dist., 109 F.3d 586, 595 (9th Cir. 1997) (stating that a violation of Section 2 cannot be proved only by “a bare

statistical showing of disproportionate impact on a racial minority”) (emphasis omitted); Ortiz v. City of

Philadelphia Office of City Comm’rs Voter Registration Div., 28 F.3d 306, 310 (3d Cir. 1994) (“[T]he Supreme

Court recognized that there must be some causal connection between the challenged electoral practice and the

alleged discrimination that results in a denial or abridgement of the right to vote.”); Wesley v. Collins, 791 F.2d

1255, 1260–61 (6th Cir. 1986) (“It is well-settled, however, that a showing of disproportionate racial impact alone

does not establish a per se violation of the Voting Rights Act. Rather, such a showing merely directs the court’s

inquiry into the interaction of the challenged legislation ‘with those historical, social and political factors generally

probative of dilution.’”) (quoting Gingles v. Edmisten, 590 F. Supp. 345, 354 (E.D.N.C. 1984)).

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 37

2012) (en banc) (considering the Senate factors in evaluating a Section 2 challenge to Arizona’s

voter ID law), aff’d on other grounds sub nom. Arizona v. Inter Tribal Council of Arizona, 133 S.

Ct. 2247 (2013); Johnson, 405 F.3d at 1227 n.26 (explaining that, in a vote denial claim, “courts

consider a non-exclusive list of objective factors (the ‘Senate factors’) detailed in a Senate

Report accompanying the 1982 amendments” as part of evaluating whether, under the “totality of

the circumstances,” “the political processes . . . are not equally open to participation by

[members of a protected class]”); Smith, 109 F.3d at 596 n.8 (“Appellants suggest that the

‘Senate factors’ apply only to ‘vote dilution’ claims. To the contrary, the ‘totality of the

circumstances’ test established in § 2(b) was initially applied only in ‘vote denial’ claims such as

this.”).

We find Senate factors one, three, five, and nine particularly relevant to a vote denial

claim in that they specifically focus on how historical or current patterns of discrimination

“hinder [minorities’] ability to participate effectively in the political process.” Gingles, 478 U.S.

at 37 (quoting Senate factor five). All of the factors, however can still provide helpful

background context to minorities’ overall ability to engage effectively on an equal basis with

other voters in the political process.

2. Assessment of Plaintiffs’ Section 2 Claim

We conclude that the district court properly found that Plaintiffs are likely to succeed on

their Section 2 claim. Plaintiffs demonstrated that SB 238 and Directive 2014-17 will

disproportionately burden African American voters and that this burden means that they will

have a harder time voting than other members of the electorate. As previously discussed in

Sections II and III, the district court did not clearly err in crediting the statistical and survey

analysis of Plaintiffs’ expert Smith and other studies in the record as demonstrating that African

Americans vote EIP at higher rates than other groups, including on the eliminated EIP voting

days. Nor did the district court clearly err in considering data from the elections in 2008, 2010,

and 2012 in reaching this conclusion, rather than focusing solely on 2010 as Defendants’

causation argument implicitly urges. Defendants’ argument that Plaintiffs did not establish

causation is therefore without merit. And the fact that African Americans are more likely to be

of lower-socioeconomic status in Ohio—as Professor Roscigno’s undisputed report establishes—

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 38

and both distrust voting by mail and face obstacles doing so, means that the remaining EIP

voting times are not sufficient to ensure African Americans have a truly equal opportunity to

vote as other groups of voters. More specifically, African Americans are more likely to vote on

Sundays through the Souls to the Polls initiatives because of the free transportation church

groups can provide. Lower-income individuals face difficulties in voting during the day because

they are more likely to work in hourly-wage jobs with little flexibility. Lower-income

individuals, often because they are more likely to move and/or have difficulty accessing

transportation, also most need same-day registration. R. 18-2 (Roscigno Rep. at 16–19) (Page ID

#266–69). Thus, the disproportionate burdens SB 238 and Directive 2014-17 place on African

Americans, combined with their lower-socioeconomic status in Ohio, operate to give African

American voters “less opportunity than other members of the electorate to participate in the

political process and to elect representatives of their choice.” 42 U.S.C. § 1973(b).

Defendants’ argument that the district court failed to identify an objective benchmark

against which to assess the burdens SB 238 and Directive 2014-17 place on African American

voters is unpersuasive. The case law Defendants cite on the need for objective benchmarks

involve vote dilution claims. See, e.g., Holder v. Hall, 512 U.S. 874, 876 (1994) (“This case

presents the question whether the size of a governing authority is subject to a vote dilution

challenge under § 2 of the Voting Rights Act”); Bossier II, 528 U.S. 320 (considering whether

Section 5 prohibits preclearance of a dilutive, but nonretrogressive redistricting plan).10 A vote

dilution claim requires courts to make the difficult judgment of whether a challenged practice

impermissibly dilutes minorities’ voting strength, or whether minorities’ lack of electoral success

in fact simply stems from “mere . . . political defeat at the polls.” Whitcomb v. Chavis, 403 U.S.

124, 153 (1971). Thus, determining what an undiluted benchmark should be can be challenging,

particularly because Section 2 expressly states that “nothing in this section establishes a right to

have members of a protected class elected in numbers equal to their proportion in the

population.” 42 U.S.C. § 1973(b).

10

Defendants’ discussion of the necessity of establishing “preconditions” before assessing the “totality of

circumstances” similarly comes from vote dilution cases. See Appellants Reply Br. at 17–19. The “preconditions”

referenced in Growe v. Emison, 507 U.S. 25, 41 (1993), for example, refer to three requirements the Supreme Court

set forth in Gingles that apply to vote dilution claims only. Gingles, 478 U.S. at 50–51.

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 39

In contrast, Section 2 vote denial claims inherently provide a clear, workable benchmark.

Again, under Section 2(b), the relevant inquiry is whether minority voters “have less opportunity

than other members of the electorate to participate in the political process and to elect

representatives of their choice.” 42 U.S.C. § 1973(b) (emphasis added). The benchmark is thus

quite straightforward—under the challenged law or practice, how do minorities fare in their

ability “to participate in the political process” as compared to other groups of voters?

Thus, the district court properly assessed whether, under the system established by SB

238 and Directive 2014-17, African American voters would have less opportunity than other

Ohio voters to cast their ballots. The disproportionate impact on African American voters as

compared to white voters of cutting Sunday and evening EIP voting as well as Golden Week is

clearly relevant to this inquiry. So, too, is the relative ability of African American voters to vote

through the remaining options available under SB 238 and Directive 2014-17.

Turning to the second element of a Section 2 vote denial claim, the district court also

properly found that Plaintiffs had sufficiently demonstrated that the disproportionate burdens SB

238 and Directive 2014-17 place on African Americans are in part caused by or linked to “social

and historical conditions” of discrimination. Professor Roscigno’s undisputed report regarding

Senate factor five is particularly on point. He explained that African Americans in Ohio tend to

be of lower-socioeconomic status because of “stark and persistent racial inequalities . . . [in]

work, housing, education and health,” inequalities that stem from “both historical and

contemporary discriminatory practices.” R. 18-2 (Roscigno Rep. at 3) (Page ID #253). As

support, Professor Roscigno pointed to “[s]ubstantial bodies of social science research . . . [that]

investigate the root causes of . . . occupational inequalities, often concluding that contemporary

institutional practices and discrimination play a significant role, especially when the disparities

are as large as they are in Ohio.” Id. at 7 (Page ID #257). “Racial occupational inequalities are

easily linked to racial disparities in, for instance, family income and poverty status as well as

residential and schooling options and racial health disparities.” Id. at 10 (Page ID #260). As

previously discussed, African Americans’ lower-socioeconomic status in turn plays a key role in

explaining why the disproportionate impact of SB 238 and Directive 2014-17 burdens African

Americans’ voting opportunities.

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 40

The remaining Senate factors considered by the district court support its finding that the

burdens SB 238 and Directive 2014-17 place on African American voters are in part caused by

or linked to “social and historical conditions” that have produced or currently produce

discrimination against African Americans in Ohio. Given that Plaintiffs’ claim focuses on

reductions in voting opportunities, past and current discrimination linked to the electoral system

itself is relevant. Professor Roscigno’s report demonstrated that, per Senate factor one,

historically “[o]fficial voting-related discrimination against racial/ethnic minorities was a

cornerstone in Ohio.” Id. at 26 (Page ID #276). More recently, Ohio has implemented “voting

practices that suppress minority political participation,” such as poll watchers and voter ID

laws—practices that fall within the ambit of Senate factor three. Id. at 28–30 (Page ID #278–

80). Under Senate factor nine, it is also relevant that, as explained in the Equal Protection Clause

analysis, the policy justifications for SB 238 and Directive 2014-17 are “tenuous.” Gingles,

478 U.S. at 37. The evidence Professor Roscigno provided regarding Senate factors two, six,

and seven—while not as clearly linked to Plaintiffs’ claim—further contextualizes the role race

still plays in Ohio elections.

The district court did not improperly engage in a retrogression analysis in considering the

opportunities available to African Americans to vote EIP under the prior law as part of the

“totality of circumstances” inquiry. To be sure, Congress intended—and the Court has read—

Section 2 and Section 5 not to have exactly the same scope. Procedurally, Section 5 requires that

covered states obtain preclearance from the Attorney General or the District Court for the

District of Columbia before they change a voting “qualification, prerequisite, standard, practice,

or procedure.” 42 U.S.C. § 1973c. Section 2 applies to all states and includes no preclearance

requirement. “[T]he purpose of § 5 has always been to insure that no voting-procedure changes

would be made that would lead to a retrogression in the position of racial minorities with respect

to their effective exercise of the electoral franchise.” Beer v. United States, 425 U.S. 130, 141

(1976). In other words, “§ 5 prevents nothing but backsliding,” whereas Section 2 is aimed at

combatting “discrimination more generally.” Bossier II, 528 U.S. at 334–35.

At the same time, however, no case explicitly holds that prior laws or practices cannot be

considered in the Section 2 “totality of circumstances” analysis. The Supreme Court has in fact

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 41

found a Section 2 violation under the “totality of circumstances” in part based on changes to the

electoral system. League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 439 (2006)

(noting that “[t]he changes to District 23 undermined the progress of a racial group that has been

subject to significant voting-related discrimination and that was becoming increasingly

politically active and cohesive”) (emphasis added). Neither does the legislative history of

Section 2 indicate that prior laws or practices cannot factor into the analysis. The Senate Report

to the 1982 amendments states only that “Plaintiffs could not establish a Section 2 violation

merely by showing that a challenged reapportionment or annexation, for example, involved a

retrogressive effect on the political strength of a minority group.” S. REP. NO. 97-417 at 68

n.224 (1982) (emphasis added). Oxford English Dictionary defines “merely” as “entirely . . .

only (what is referred to) and nothing more.” 9 Oxford English Dictionary 629 (2d ed. 1989). In

other words, the Report simply establishes that challengers cannot show a Section 2 violation

only on the basis of retrogressive effects. Indeed, Senate factor nine in fact invites comparison to

prior laws. The Senate Report explains that, in assessing the “tenuous[ness]” of policy

justification for the challenged law or procedure, the fact that “the procedure markedly departs

from past practices or from practices elsewhere in the jurisdiction . . . bears on the fairness of its

impact.” S. REP. NO. 97-417 at 239 n.117 (emphasis added).

Moreover, the Supreme Court has made clear that “some parts of the § 2 analysis may

overlap with the § 5 inquiry.” Georgia v. Ashcroft, 539 U.S. 461, 478 (2003). Both Section 2

and Section 5 speak to “abridgement.” 42 U.S.C. § 1973(a) (Section 2) (“No voting qualification

or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any

State or political subdivision in a manner which results in a denial or abridgement of the right of

any citizen of the United States to vote on account of race or color . . . as provided in subsection

(b) of this section.”) (emphasis added); id. § 1973c(b) (Section 5) (“Any voting qualification or

prerequisite to voting, or standard, practice, or procedure with respect to voting that has the

purpose of or will have the effect of diminishing the ability of any citizens of the United States

on account of race or color . . . to elect their preferred candidates of choice denies or abridges the

right to vote within the meaning of subsection (a) of this section.”) (emphasis added).

Abridgement “necessarily entails a comparison.” Bossier II, 528 U.S. at 333–34.

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 42

Rather, what is distinct between a Section 5 analysis and a Section 2 analysis is the role

that prior law plays in the comparison. The retrogression analysis under Section 5 involves

comparing voting opportunities enjoyed by minorities under the status quo as compared to voting

opportunities minorities would have under the electoral system if the proposed change is

implemented. The focus is solely on voting opportunities enjoyed by minorities, and whether

those opportunities would be reduced under the proposed law. In contrast, under the Section 2

analysis, the focus is whether minorities enjoy less opportunity to vote as compared to other

voters. The fact that a practice or law eliminates voting opportunities that used to exist under

prior law that African Americans disproportionately used is therefore relevant to an assessment

of whether, under the current system, African Americans have an equal opportunity to participate

in the political process as compared to other voters.

As discussed above, Plaintiffs have not asserted that SB 238 and Directive 2014-17

burden their right to vote merely because they take away EIP voting times that used to exist

under prior law. Rather, they have presented evidence that the eliminated EIP voting times are

those that African Americans disproportionately use, and that racial inequalities in

socioeconomic status and other factors make it much more difficult for African Americans to

vote at the remaining times or through the other methods now available under the status quo as

compared to other groups.11 Thus, the district court did not improperly engage in a retrogressive

analysis.

Finally, we find unpersuasive Defendants’ claim that our decision would have far-

reaching implications beyond Ohio. Defendants fail to cite any Supreme Court or Sixth Circuit

authority to support their argument that we must necessarily consider the practices of other states

with regard to EIP voting.

11

For example, Brown v. Detzner, 895 F. Supp. 2d 1236, 1251 (M.D. Fla. 2012), one of the cases

Defendants cite in their retrogression argument, see Appellants Br. at 42, is in fact distinguishable from the present

case on this basis. The district court denied the plaintiffs’ motion for a preliminary injunction enjoining the

enforcement of a Florida statute reducing the number of early voting days from twelve to fourteen under prior law to

eight days for the 2012 election on the basis that it violated Section 2. Brown, 895 F. Supp. 2d at 1255. The district

court noted that while the reduction in days could have a discriminatory impact, other elements of the statute—such

as a provision allowing county election officials to increase the number of voting hours on any given day, which

could mean that more morning and evening hours would be available than what existed previously, and that the

statute increased Sunday early voting opportunities for the state as a whole—meant that the plaintiffs had not

provided enough evidence that minority voters on the whole would have less opportunity to vote than other groups

of voters. Id. at 1252–55.

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 43

In fact, the text of Section 2 and Supreme Court decisions indicate that the opposite is

true. The text of Section 2 directs courts to examine whether the political processes “in the State

or political subdivision are not equally open to participation by members of a [protected] class

. . . in that its members have less opportunity than other members of the electorate to

participate.” 42 U.S.C. § 1973(b) (emphasis added). The focus is on the internal processes of a

single State or political subdivision and the opportunities enjoyed by that particular electorate.

The text of Section 2 does not direct courts to compare opportunities across States. The Supreme

Court has likewise characterized the determination of whether a practice violates Section 2 as

“an intensely local appraisal of the design and impact of the contested electoral mechanisms.”

Gingles, 478 U.S. at 79 (emphasis added) (internal quotation marks omitted). The Court

explained that “the [Senate] Committee determined that ‘the question whether the political

processes are “equally open” depends upon a searching practical evaluation of the “past and

present reality,”’ and on a ‘functional’ view of the political process.” Id. (quoting S. REP. NO.

97-417 at 30) (internal citations omitted). “This determination is peculiarly dependent upon the

facts of each case.” Id. (emphasis added) (quoting Rogers v. Lodge, 458 U.S. 613, 621 (1982)).

See also Holder, 512 U.S. at 881–82 (“It makes little sense to say . . . that the sole commissioner

system should be subject to a [Section 2] dilution challenge if it is rare—but immune if it is

common.”) (Kennedy, J.); Gonzalez, 677 F.3d at 406 (“Because a § 2 analysis requires the

district court to engage in a ‘searching practical evaluation of the ‘past and present reality,’

Gingles, 478 U.S. at 45, . . . a district court’s examination in such a case is ‘intensely fact-based

and localized,’ Salt River, 109 F.3d at 591.”).

Defendants tell us that the Court’s statement in Gingles is not relevant because the Court

was considering a vote dilution claim, rather than a vote denial claim like that at issue here.

Appellants Br. at 52. But they provide no explanation as to why that distinction matters or why

assessments of early voting systems do not likewise require an intensely localized assessment of

their impact on African American voters.

Ohio faced unique problems in administering the 2004 elections. The General Assembly

introduced early voting in 2005 largely to remedy those problems. In the nearly ten years since,

EIP voting has come to play a special role in Ohio in ensuring that African Americans have an

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 44

equal opportunity to participate in the political process that is not necessarily true elsewhere.

There is no reason to think our decision here compels any conclusion about the early-voting

practices in other states, which do not necessarily share Ohio’s particular circumstances.

In sum, we conclude that Plaintiffs are likely to succeed on their Section 2 of the Voting

Rights Act claim.

E. The Remaining Preliminary Injunction Factors

“When a party seeks a preliminary injunction on the basis of a potential constitutional

violation, ‘the likelihood of success on the merits often will be the determinative factor.’”

Obama for America, 697 F.3d at 436 (quoting Jones v. Caruso, 569 F.3d 258, 265 (6th Cir.

2009)). Although we have concluded that Plaintiffs are likely to succeed on their Equal

Protection Clause claim and their Section 2 of the Voting Rights Act claim, we still consider the

remaining three preliminary injunction factors.

First, we conclude that Plaintiffs have established that they will suffer irreparable harm

absent an injunction. “When constitutional rights are threatened or impaired, irreparable injury

is presumed. A restriction on the fundamental right to vote therefore constitutes irreparable

injury.” Id. (internal citations omitted).

Regarding the final two factors, we conclude that the issuance of the injunction would not

cause substantial harm to others and that the public interest weighs in its favor. The significant

burden on the ability to vote of the voters Plaintiffs represent outweighs any burden on

Defendants, who have failed to demonstrate that BOEs would not be able to administer the extra

days and evening hours of EIP voting required by the preliminary injunction, a schedule BOEs

had previously administered in past elections. As we explained in Obama for America:

While states have “a strong interest in their ability to enforce state election law

requirements,” Hunter [v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219, 244

(6th Cir. 2011)], the public has a “strong interest in exercising the ‘fundamental

political right’ to vote.” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (quoting Dunn,

405 U.S. at 336). “That interest is best served by favoring enfranchisement and

ensuring that qualified voters’ exercise of their right to vote is successful.”

Hunter, 635 F.3d at 244. The public interest therefore favors permitting as many

qualified voters to vote as possible.

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 45

Obama for America, 697 F.3d at 436–37. We have previously rejected Defendants’ argument

that upholding the preliminary injunction risks confusing voters. Ohio State Conference of

N.A.A.C.P. v. Husted, No. 14-3877, 2014 WL 4494938, at *5 (6th Cir. Sept. 12, 2014).

Regarding Defendants’ laches argument, we “review[] a district court’s resolution of a laches

question for an abuse of discretion.” Chirco v. Crosswinds Communities, Inc., 474 F.3d 227, 231

(6th Cir. 2007) (internal quotation marks omitted). Defendants have not explained how Plaintiffs

could have more quickly produced the voluminous record evidence in this case in support of

their motion for a preliminary injunction, nor have Defendants produced any evidence that

Plaintiffs purposefully delayed. We therefore find that the district court did not abuse its

discretion in determining that Defendants “ha[d] not shown . . . a lack of diligence” by Plaintiffs

to move promptly for a preliminary injunction. R. 72 (D. Ct. Op. and Order at 6) (Page ID

#5853).

F. The District Court’s Remedy

Defendants suggest in one paragraph in their brief on appeal that the district court’s

preliminary injunction itself might violate the Equal Protection Clause by allowing BOEs to set

EIP voting hours in addition to those set forth in the preliminary injunction order and Directive

2014-17 because BOEs might set unequal EIP voting hours. Appellants Br. at 28–29. This

argument appears to implicate issues of state law that have not been fully developed on appeal.

The Ohio Revised Code authorizes BOEs to set their own EIP voting hours. Ohio Rev. Code

§§ 3501.10(b), 3501.11. The district court’s order expressly ties its remedy to what is already

permitted under Ohio law: “Secretary Husted is enjoined from preventing individual county

Boards of Election from adopting, by a majority vote of their members and in accordance with

the procedures established by Ohio election law,” additional EIP voting hours. R. 72 (D. Ct. Op.

and Order at 71) (Page ID #5918) (emphasis added). Neither party has directly addressed

Secretary Husted’s authority to impose uniform EIP voting hours despite the provisions of the

Ohio Revised Code that appear to vest discretion in BOEs to set their own hours. Id. at 4 (Page

ID #5851). At this stage in the litigation, with only days until early voting is set to begin, and

having found that all four factors weigh in favor of granting Plaintiffs a preliminary injunction,

we do not address this argument at this time.

No. 14-3877 Ohio State Conference of the NAACP et al. v. Husted et al. Page 46

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment granting a

preliminary injunction.