# Florida v. United States

> District Court, District of Columbia · August 16, 2012 · 885 F. Supp. 2d 299

URL: https://www.frixlaw.com/law-library/cases/8701439

## Case

- **Full name:** State of FLORIDA v. UNITED STATES of America
- **Court:** District Court, District of Columbia
- **Decided:** August 16, 2012
- **Citations:** 885 F. Supp. 2d 299; 2012 U.S. Dist. LEXIS 115647; 2012 WL 3538298
- **Precedential status:** Published
- **Opinion:** Opinion of the court
- **Judges:** Garland, Huvelle, Kollar, Kotelly
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8701439

## How later opinions describe it (automated extraction)

- noting that “the record evidence suggests that GOTV groups could adjust to a redistribution of the total 96 hours over a different number of days, including weekend days and a ‘souls-to-the-polls’ Sunday”
- stating that a benefit received through corporate ownership is insufficient to establish rights as a third-party beneficiary under New York law
- noting that “the record *473 evidence suggests that GOTV groups could adjust to a redistribution of the total 96 hours over a different number of days, including weekend days and a ‘souls-to-the-polls’ Sunday”
- finding that GOTV efforts could adjust to the redistribution of hours over fewer days

## Opinion text

PER CURIAM:
The State of Florida brings this action for declaratory relief under section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c. Section 5 prohibits the enforcement of any change in voting practices or procedures in certain states and other covered jurisdictions, including five of Florida’s counties, unless and until the change is approved by the Attorney General of the United States or by a three-judge panel of the United States District Court for the District of Columbia. In this three-judge district court proceeding, Florida seeks a declaratory judgment that certain recent changes to its election laws “neither ha[ve] the purpose nor will have the effect of denying or abridging the right to vote on account of race or color” or membership in a language minority group. 42 U.S.C. § 1973c(a).
Florida amended its voting laws in 2011, making some 80 sets of changes from prior provisions. The State submitted the changes to the Attorney General for administrative approval, and the Attorney General precleared 76 of them. Florida then withdrew the remaining four sets of changes from its request for administrative preclearance, and instead filed a complaint seeking judicial preclearance of those changes. After the complaint was filed, Florida resubmitted one of the four changes (regarding the procedures for constitutional amendments proposed by initiative) to the Attorney General for administrative approval. Thereafter, the Attorney General precleared that change, and Florida voluntarily dismissed that count of its complaint. One week ago, Florida filed a motion to voluntarily withdraw another set of changes (regarding requirements for third-party voter registration organizations (TPROs)), and to inform the court that it had amended several of the TPRO changes for which it still seeks preclearance. Because this development requires a new round of briefing and review, we will address the remaining TPRO changes at a later date.
Two categories of voting changes will be addressed in this opinion. In brief, those changes would: (1) amend the available days and hours that Florida counties may use for early in-person voting, see Fla. Stat. § 101.657 (d) (2011); and (2) amend the voting procedures for registered voters who move between Florida counties and seek to vote in their new county of residence (“inter-county movers”), see id. *303 § 101.045. The parties have filed extensive submissions regarding the law applicable to our task of reviewing the voting changes for purposes of preclearance. As we discuss below, Florida’s submission urges an unconventional reading of section 5, which we largely reject. The Attorney General, supported by more than two dozen individuals and organizations who were permitted to intervene as defendants in this action, proffers a more traditional reading, which we largely adopt.
The parties have also developed a voluminous evidentiary record, comprised of over 11,000 pages of legislative hearings, deposition transcripts, expert reports, and other exhibits. 1 The parties then filed proposed findings of fact and conclusions of law on the basis of that written record. The parties agreed that the record was sufficient for the court to reach a decision, and that five trial testimony was unnecessary. The court did, however, hear five hours of oral argument on all aspects of the statutory preclearance question. Thereafter, the court received supplemental briefing and submissions from the parties on several discrete questions of law and fact.
Upon consideration of the entire record, our conclusions may be summarized as follows. First, we conclude that we cannot, at this time, preclear Florida’s early voting changes because the State has failed to satisfy its burden of proving that those changes will not have a retrogressive effect on minority voters. Specifically, the State has not proven that the changes will be nonretrogressive if the covered counties offer only the minimum number of early voting hours that they are required to offer under the new statute, which would constitute only half the hours required under the prior law. Following an approach approved by the Supreme Court, however, we also conclude that if Florida and the covered counties were to submit a preclearance plan that offered early voting for the maximum number of hours authorized by the new statute, which would be exactly the same number as under the prior law, and did so on a standard 7 a.m. to 7 p.m. schedule, it is likely that Florida would be able to satisfy its burden of proving that the overall effect of its early voting changes would be nonretrogressive. Second, we conclude that Florida has satisfied its burden of proving that the changes to the procedures for inter-county movers neither were enacted with a discriminatory purpose nor will have a retrogressive effect on minority voters, and that those changes are therefore entitled to preclearance.
The opinion that follows summarizes our findings of fact and sets forth our conclusions of law on the question of statutory preclearance. 2 The appendix to this opinion separately sets forth our findings of fact. See Fed.R.CivP. 52.
I. Background and Procedural History
A. Statutory Background
This court has been convened as a three-judge district court with jurisdiction to hear and determine this declaratory judgment action under section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c. See 28 U.S.C. § 1346 (a)(2); id. §§ 2201, *304 2284. The Act was enacted to protect the fundamental rights guaranteed by the Fifteenth Amendment, and to “banish the blight of racial discrimination in voting.” South Carolina v. Katzenbach, 383 U.S. 301, 308 , 86 S.Ct. 803 , 15 L.Ed.2d 769 (1966). Section 5 requires covered states and political subdivisions to seek advance approval, or “preclearance,” from the Attorney General or a three-judge district court before administering any new “voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting.” 42 U.S.C. § 1973e(a). To obtain preclearance, a covered jurisdiction must show that its proposed voting change “neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title [proscribing voting restrictions based on membership in a language minority group].” Id. 3
*305 Five of Florida’s sixty-seven counties are subject to the preclearance requirements of section 5. They, along with a number of states and other local jurisdictions, were subjected to section 5 coverage by the 1975 amendments to the coverage formula set forth in section 4(b) of the Act. Section 4(b)’s coverage formula subjects jurisdictions to section 5 preclearance obligations based on a combination of the maintenance of a prohibited “test or device” and low voter turnout in certain elections. 4 The 1975 amendments expanded the definition of “test or device” to include “any practice or requirement by which any State or political subdivision provided,” as of November 1, 1972, “any registration or voting notices, forms, instructions, assistance, or other materials or information relating to the electoral process, including ballots, only in the English language, where the Director of the Census determines that more than five per centum of the citizens of voting age residing in such State or political subdivision [we]re members of a single language minority.” 42 U.S.C. § 1973b(f)(3). The statute defines “language minorities” to include “persons who are American Indian, Asian American, Alaskan Native or of Spanish heritage.” Id. § 1973¿(c)(3). As a result of these language minority amendments, five Florida counties — Hillsborough, Monroe, Collier, Hendry, and Hardee — became subject to coverage under section 5. See 28 C.F.R. Pt. 51, App.; see also 41 Fed.Reg. 34329 (Aug. 13, 1976); 40 Fed.Reg. 43746 (Sept. 23,1975).
Although Florida itself is not a covered jurisdiction under section 5, it is well settled that “the Act’s preclearance requirements apply to measures mandated by a noncovered State to the extent that these measures will effect a voting change in a covered county.” Lopez v. Monterey Cnty., 525 U.S. 266, 269 , 119 S.Ct. 693 , 142 L.Ed.2d 728 (1999). Accordingly, to the extent that Florida seeks to administer any of its statewide voting changes in its five covered counties, those changes must be submitted for preclearance. Id. at 278 , 119 S.Ct. 693 ; see 28 C.F.R. § 51.23 (a). Moreover, for reasons explained in more *306 detail below, see infra Part II.A, it is clear that both of the electoral changes for which Florida seeks approval come within the purview of the Act, because they both involve changes to voting qualifications or prerequisites to voting, or “standard[s], practice^], or procedure[s] with respect to voting.” 42 U.S.C. § 1973c(a). 5 Indeed, although Florida has argued that certain formulations of the section 5 “effect” test do not apply to these changes and that the requirement that its statewide changes be submitted for preclearance is unconstitutional, the State does not dispute its statutory obligation under section 5 to submit the changes at issue here for either administrative or judicial preclearance. See [91] Fla,’s Proposed Findings of Fact & Conclusions of Law (“Fla. Br.”); [147] Third Am. Compl. (“Fla. Compl.”).
B. Procedural History
The voting changes that Florida has submitted for our preclearance review were included in an omnibus bill, Committee Substitute for Committee Substitute for House Bill 1355 (“HB 1355”), which made approximately 80 sets of changes to Florida’s election procedures. 6 That bill moved through the Florida House and Senate over a period of several months in the spring of 2011, and was signed into law on May 19, 2011 by the Governor. See Fla. Laws, ch. 2011-40; see also Fla. Stat. §§ 101.045 , 101.657(d) (2011) (codifying the particular voting changes at issue in this case). As we have indicated, Florida originally submitted HB 1355 in its entirety for administrative preclearance by the Department of Justice, and the vast majority of the changes in that law — most of which were minor or ministerial in nature — were precleared by the Attorney General on August 8, 2011. See A118 (Revised Jointly Stip. Facts ¶ 8).
In the meantime, however, Florida withdrew four sets of its voting changes from the administrative preclearance process. See A219 (Letter from Daniel Nordby, Gen. Counsel, Fla. Dep’t of State (July 29, 2011)). Those four changes included the early voting and inter-county mover changes at issue before us in this opinion, along with changes imposing additional requirements on third-party voter registration organizations (TPROs) and amendments to the provisions governing the time frame during which signatures on citizen initiative petitions are valid (the “citizen initiative changes”). Id. After withdrawing those changes from administrative review, Florida then filed a complaint in this court seeking judicial preclearance of those four changes. See [1] Compl. Early in the litigation, Florida amended that complaint twice: once to assert claims — which we will address in future proceedings — challenging the constitutionality of the Voting Rights Act, see [39] First Am. Compl. ¶¶ 107-116; and once to include a request for judicial preclearance of amended state regulations implementing the TPRO *307 changes, see [54] Second Am. Compl. ¶¶ 85-86 & Ex. B.
Over the following months, the parties conducted extensive discovery, and, after the discovery period closed on February 29, 2012, continued to take de bene esse depositions and submit declarations by their respective experts. By late May, the parties had submitted proposed conclusions of law and findings of fact. They then requested that we forego a live trial and decide the case on the basis of the written record alone. The court held five hours of oral argument on June 21, followed by multiple rounds of supplemental briefing on issues raised during the argument.
Since the filing of Florida’s Second Amended Complaint, the scope of our required review has narrowed considerably. First, in March 2012 the United States informed this court that, after conducting discovery and reviewing the record, it had concluded that Florida had met its burden of demonstrating that the citizen initiative changes were neither enacted with a discriminatory purpose nor will have a retrogressive effect on minority voters. See [79] March 8, 2012 Mem. Order at 2-3. Accordingly, Florida re-submitted those changes for administrative preclearance, and on March 21, 2012, the Attorney General informed the State that no objection would be interposed. See [84] United States’ Notice to the Court. The parties then filed a stipulation of dismissal as to Count Two of Florida’s Second Amended Complaint, which dealt with those citizen initiative changes. See [85] Stip. of Dismissal.
Florida’s stipulation of dismissal left us with only three statutory preclearance counts to review, dealing respectively with the TPRO, inter-county mover, and early voting amendments. But recent developments have again narrowed the issues before us. In particular, a federal district court in Florida issued a preliminary injunction on May 31, 2012 against many of the TPRO changes in HB 1355 and its implementing rule, finding that the plaintiffs in that case were likely to prevail on their First Amendment and National Voter Registration Act challenges to those changes. See League of Women Voters of Fla. v. Browning, 863 F.Supp.2d 1155, 1166-67 (N.D.Fla.2012). On June 12, Florida informed us that it would “no longer seek in this action to preclear the [TPRO] changes that the [district court in Florida] preliminarily enjoined.” [109] Statement Regarding the Effect of the Recent Order in the N.D. Fla. at 2. Florida stated in that filing that it would “voluntarily withdraw the enjoined [TPRO] Changes from this judicial preclearance action,” id. at 5, indicating that it was waiting for a clarification from the Florida district court before doing so, see id. at 3 n. 2.
Several weeks passed without further word from the State. We convened a status conference on July 16 to determine whether Florida had made a decision regarding which TPRO provisions it intended to withdraw from this action, and which it would still seek to preclear. Florida advised that it had not yet made a final decision. Then, approximately one week ago, the State informed us that it had settled the TPRO litigation in Florida. See [104] Mem. of Points and Authorities in Support of Pl.’s Mot. for Leave to Amend the Compl. at 1. It filed a motion to amend its complaint in this case, seeking to remove from its request for preclearance those TPRO changes that the district court in Florida had enjoined, while keeping the remaining changes, some in a modified form. See id. at 4 n. 1, 5. On August 13, Florida also advised the court that it would promptly submit the remaining, non-enjoined TPRO changes to the Department of Justice for administrative pre *308 clearance. On August 15, the court granted Florida’s unopposed motion to amend its complaint to reflect that it no longer seeks preelearance for the enjoined changes.
The effect of this development has been to remove from our consideration the most controversial provisions of the TPRO amendments — including a stringent 48-hour deadline for submission of completed voter registration applications, a requirement that registration agents sign a “sworn statement” listing the penalties for fraudulent voter registration, and a mandate that TPROs track and account for all registration forms provided to and received from their employees and volunteers, and then file monthly reports with the State reflecting those tallies. But Florida’s recent filing also means that we must hold a new round of briefing on the TPRO changes that remain. We also must give the Department of Justice an opportunity to consider whether to preclear the remaining changes administratively. This process could take several more weeks, even as the covered counties seek to finalize their plans for the November election.
Accordingly, having previously bifurcated this case into a preclearance part and a constitutional part in order to expedite the decision on preclearance, see supra note 2, we now trifurcate it. This opinion will address only those matters fully before us— the early voting and inter-county mover changes — for which there is no reason for further delay, and for which the interests of judicial efficiency and finality counsel an expeditious resolution. Once the parties have had an opportunity to brief the TPRO changes for which Florida still seeks preclearance, and the Attorney General has made a determination regarding whether to preclear those changes administratively, we will address the remaining TPRO provisions if there are any. Thereafter, if our dispositions have not rendered a decision on Florida’s constitutional challenge moot or otherwise unnecessary, we will hold oral argument on those issues.
C. Voting Changes at Issue
In their final form, the two sets of voting amendments at issue in this opinion make a number of changes to Florida’s practices and procedures governing early voting and inter-county movers. We examine those changes in greater detail in the course of our analysis and discussion below. In brief, however, the amendments make the following changes from Florida’s previous voting laws.
1. Early Voting
Before the passage of HB 1355, Florida’s early voting law provided early in-person voting for a potential 14-day period, beginning on “the 15th day before an election and end[ing] on the 2nd day before the election.” Fla. Stat. § 101.657 (d) (2010). That prior law required each county to offer early voting for exactly 8 hours per day on weekdays and exactly 8 hours in the aggregate each weekend, yielding a total of 96 hours of early voting. Early voting sites were to “open no sooner than 7 a.m. and close no later than 7 p.m. on each applicable day,” but within this constraint local supervisors of elections in each Florida county had the discretion to select the specific voting hours for each early voting day. Id. In Florida’s five covered counties, local supervisors of elections chose a range of voting hours between 7 a.m. and 7 p.m. depending on whether it was a primary or general election and what voting site was involved. In addition, the prior law gave election supervisors discretion in choosing whether their 8 aggregate weekend early voting hours would fall on a Saturday, a Sunday, or both. See id. In each of Florida’s five covered counties, local election supervisors exercised that discretion to offer 8 hours of early voting on each Saturday and none on *309 either Sunday. This meant that in each of the five covered counties, only 12 of the available 14 days of early voting were actually used (Monday through Saturday of each of the two weeks before the election).
HB 1355 amends the number of days, the number of hours, the specific hours, and the weekend times that early voting may be offered in Florida. First, under the new law, the early voting period begins “on the 10th day before an election ... and end[s] on the 3rd day before the election,” for a total of only 8 days instead of the previous 12. Fla. Stat. § 101.657 (d) (2011).
Second, the law now gives local election supervisors the discretion to determine the number of daily hours of early voting in their counties, subject to the constraint that “no less than 6 hours and no more than 12 hours” be offered on each of the 8 early voting days. Id. As a result, Florida’s covered counties might still offer the same total hours of early voting (96 hours) that were required under the pre-2011 law, but only if their local election supervisors decide to offer the maximum 12 hours of early voting on each of the 8 days. If, on the other hand, a local supervisor chooses to offer the minimum number of hours (ie., 6 hours per day), then the early voting period would last only 48 hours in total — exactly half of the hours that were offered under the prior law.
Third, the new law also removes the requirement that voting take place between 7 a.m. and 7 p.m. each day. Instead, local supervisors of elections have the discretion to determine the specific hours of early voting in their counties, as long as they offer “no less than 6 hours and no more than 12 hours” each day. Id. In the event that local election supervisors offer the maximum 12 hours of early voting on a given day, then the early voting hours for that day would necessarily include hours that fall outside the standard 8-hour workday extending from 9 a.m. to 5 p.m. However, in the event election supervisors offer the minimum 6 hours of early voting on a given day, the 6-hour early voting day may be entirely within, entirely outside, or straddle the standard workday.
Fourth, the new early voting statute also mandates some additional weekend hours of early voting. In particular, the new early voting period runs from the Saturday two weekends before the election to the Saturday immediately before Election Day, see id., meaning that the early voting period under HB 1355 now requires three weekend days of early voting: two Saturdays and one Sunday. And as already explained, the new statute mandates anywhere from 6 to 12 early voting hours on each day. Id. Accordingly, if HB 1355 were implemented in the covered counties, it would result in at least 6 (and up to 12) hours of Sunday early voting that were never before offered in those counties. Moreover, election officials would also have the discretion to offer up to 36 total hours of weekend early voting (12 hours per day on each of 3 weekend days) — for a net gain of 20 weekend early voting hours over the prior law, which offered exactly 16 weekend hours (8 hours in the aggregate on each of two weekends).
2. Inter-County Movers
Under the pre-2011 statute governing inter-county movers, registered Florida voters who moved to a new county of residence without informing the relevant supervisor of elections could still update their addresses at the polls and then vote a regular ballot. Specifically, before the enactment of HB 1355, inter-county movers were simply required to complete an affidavit of change of address (or a new voter registration application), listing their new address of residence and affirming that they had not already voted in the precinct of their former residence. See Fla. Stat. § 101.045 (2)(a), (c) (2010). After their eli *310 gibility to vote was verified, such voters were then permitted to cast a regular ballot, which would be canvassed and counted like all other ballots. Id. § 101.045(2)(d).
After the 2011 amendments, however, “an elector whose change of address is from outside the county may not change his or her legal residence at the polling place and vote a regular ballot.” Fla. Stat. § 101.045 (2)(b) (2011). Instead, such inter-county movers are now only “entitled to vote a provisional ballot.” Id. The only exception is for active uniformed services voters and members of their families, who are still permitted to cast a regular ballot after affirming their inter-county change of address and having their eligibility verified. Id.
Once completed, provisional ballots cast by inter-county movers “shall be placed in a secrecy envelope and thereafter sealed in a provisional ballot envelope.” Id. § 101.048(1). The provisional ballots will then be deposited in a ballot box and returned to election officials, whereupon the county canvassing board will examine the ballots to determine if the voters were eligible to vote at that precinct and had not already cast a ballot in the election. Id. § 101.048(2)(a). Florida law specifically provides that a provisional ballot “shall be counted unless the canvassing board determines by a preponderance of the evidence that the person was not entitled to vote.” Id. (emphasis added); see also id. § 101.048(2)(b)(l).
Finally, as relevant here, the 2011 amendments to Florida’s Election Code also make pre-election address changes easier for registered Florida voters. Under the pre-2011 law, inter-county address changes had to be completed “using a voter registration application signed by the elector.” Fla. Stat. § 97.1031 (2) (2010). Now, however, registered voters can notify the supervisor of elections of their change of address by “[submitting the change on a voter registration application or other signed, written notice,” or by “[c]ontacting the supervisor of elections via telephone or electronic means.” Fla. Stat. § 97.1031 (l)(b) (2011).
Florida seeks judicial preclearance of each set of voting changes outlined above. To obtain preclearance under section 5, a covered jurisdiction must demonstrate that its proposed voting changes “neither ha[ve] the purpose nor will have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title [proscribing voting restrictions based on membership in a language minority group].” 42 U.S.C. § 1973e(a). The burden of proving by a preponderance of the evidence that the voting changes at issue neither have an impermissible purpose nor will have an impermissible effect rests on the plaintiff — in this case, the State of Florida. Reno v. Bossier Parish Sch. Bd. (“Bossier Parish I”), 520 U.S. 471, 478 , 117 S.Ct. 1491 , 137 L.Ed.2d 730 (1997); City of Rome v. United States, 446 U.S. 156 , 184 n. 18, 100 S.Ct. 1548 , 64 L.Ed.2d 119 (1980); Beer v. United States, 425 U.S. 130, 140-41 , 96 S.Ct. 1357 , 47 L.Ed.2d 629 (1976); Georgia v. United States, 411 U.S. 526, 538 , 93 S.Ct. 1702 , 36 L.Ed.2d 472 (1973); City of Port Arthur v. United States, 517 F.Supp. 987, 1011 (D.D.C.1981), aff'd, 459 U.S. 159 , 103 S.Ct. 530 , 74 L.Ed.2d 334 (1982); City of Petersburg v. United States, 354 F.Supp. 1021, 1027 (D.D.C.1972), summarily aff'd, 410 U.S. 962 , 93 S.Ct. 1441 , 35 L.Ed.2d 698 (1973); see also Reno v. Bossier Parish Sch. Bd. (“Bossier Parish II”), 528 U.S. 320, 328 , 120 S.Ct. 866 , 145 L.Ed.2d 845 (2000), superseded by statute on other grounds, 42 U.S.C. § 1973c(e).
We consider each of Florida’s proposed voting changes to determine whether the *311 State has met that burden. Because any evidence relating to the retrogressive effects (or lack thereof) of the changes may inform our analysis of possible discriminatory purpose, see Vill. of Arlington Heights v. Metro. Housing Dev. Co., 429 U.S. 252, 266 , 97 S.Ct. 555 , 50 L.Ed.2d 450 (1977), we address the effect issue first. See City of Port Arthur, 517 F.Supp. at 1011 .
II. Effects
We begin by setting forth the legal standards applicable to the effect prong of section 5. Thereafter, we will apply those standards to Florida’s two proposed voting changes.
A. Legal Standards
The test for assessing whether a given voting change will have “the effect of denying or abridging the right to vote on account of race[,] color,” or membership in a language minority group, 42 U.S.C. § 1973c(a), has been stated in a relatively straightforward manner. In Beer , the Supreme Court held that, to be entitled to preclearance under the effect prong of section 5, a proposed change must not “lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.” 425 U.S. at 141 , 96 S.Ct. 1357 ; accord Bossier Parish I, 520 U.S. at 478 , 117 S.Ct. 1491 . In other words, a voting change “has a prohibited ‘effect’ only if it is retrogressive,” meaning that it “worsenfs] the position of minority voters” in comparison to the preexisting voting standard, practice, or procedure. Bossier Parish II, 528 U.S. at 324 , 120 S.Ct. 866 .
By definition, this “so-called ‘retrogression’ analysis” requires us to “comparte] the existing voting scheme” — often known as the “benchmark” practice — with the “scheme that would result from the proposed change.” State of New York v. United States, 874 F.Supp. 394 , 397 (D.D.C.1994). “If the position of minority voters is no worse under the new scheme than it was under the old scheme,” then the proposed change does not have an impermissibly retrogressive effect. Id. (citing City of Lockhart v. United States, 460 U.S. 125, 132-35 , 103 S.Ct. 998 , 74 L.Ed.2d 863 (1983)). If, on the other hand, the change would lead to a retrogression in the position of minority voters in the covered jurisdiction, then preclearance must be denied. Beer, 425 U.S. at 141 , 96 S.Ct. 1357 .
Lurking in the background of this seemingly simple formulation, however, are a number of potential complications. The central problem for our purposes is that “[t]he Supreme Court has never comprehensively defined ‘retrogression,’ nor has it engaged in any detailed discussion of what constitutes the ‘effective exercise of the electoral franchise’ by minority voters.” Georgia v. Ashcroft, 195 F.Supp.2d 25, 74 (2002), vacated on other grounds, 539 U.S. 461 , 123 S.Ct. 2498 , 156 L.Ed.2d 428 (2003). In particular, the Court has not specifically addressed how the retrogression test applies to “ballot access” laws {e.g., laws governing the procedures for voting and voter registration) such as the ones before us. Indeed, the case law interpreting the section 5 effect test deals primarily with so-called “second generation barriers ... to preventing] minority voters from fully participating in the electoral process,” H.R.Rep. No. 109-478, at 2 (2006), 2006 U.S.C.C.A.N. 618, 618: for example, changes involving annexations, redistricting, or the creation or expansion of at-large electoral systems. 7 Despite— or perhaps because of — the Voting Rights *312 Act’s central concern with prohibiting practices and procedures that impede minority voters from casting a ballot, see, e.g., 42 U.S.C. § 1973b(a) (suspending all “test[s] or device[s]” in covered jurisdictions), there are no cases squarely addressing how the retrogression analysis should function in a ballot access case like this one.
Nonetheless, our examination of the statutory text and relevant lines of authority allows us to draw some conclusions about applying the section 5 effect test to this case. In brief, we conclude that a change that alters the procedures or circumstances governing voting and voter registration will result in retrogression if: (1) the individuals who will be affected by the change are disproportionately likely to be members of a protected minority group; and (2) the change imposes a burden material enough that it will likely cause some reasonable minority voters not to exercise the franchise. We emphasize that the two-part nature of this inquiry means that the retrogression test in ballot access cases is hot solely one of “disparate impact,” as Florida fears. See Fla. Br. 57. In other words, a change is not retrogressive simply because it deals with a method of voting or registration that minorities use more frequently, or even because it renders that method marginally more difficult or burdensome. Rather, to be retrogressive, a ballot access change must be sufficiently burdensome that it will likely cause some reasonable minority voters not to register to vote, not to go to the polls, or not to be able to cast an effective ballot once they get to the polls.
This inquiry is a “fact-intensive” one, and requires us to “carefully scrutinize the context in which the proposed voting changes will occur.” Georgia v. Ashcroft, 195 F.Supp.2d at 76 . In so doing, we do not focus solely on the burdens imposed by a voting change, but rather must also take account of any off-setting, or “ameliorative,” adjustments. See City of Richmond, 422 U.S. at 370-71, 95 S.Ct. 2296 ; City of Petersburg, 354 F.Supp. at 1031 . And in the context of this particular case, where only five of Florida’s counties are subject to the requirements of section 5, we must look at the effects of the voting changes on minority voters in only those five covered counties. See Lopez, 525 U.S. at 284 , 119 S.Ct. 693 (“Section 5, as we interpret it today, burdens state law only to the extent that that law affects voting in jurisdictions properly designated for coverage.” (emphasis added)). Finally, as we have said, Florida bears the burden of proving that the voting changes at issue are non-retrogressive. See, e.g., City of Rome, 446 U.S. at 184 n. 18, 100 S.Ct. 1548 ; Beer, 425 U.S. at 140-41 , 96 S.Ct. 1357 .
In settling upon the retrogression standard that we have outlined above, we reject Florida’s novel arguments concerning section 5 — arguments that question the traditional understanding of the section’s effect test or that would read the test out of the statute altogether. We discuss those arguments in the following paragraphs.
1. Florida’s most far-reaching contention is that the effect prong of section 5 does not apply to this case at all. This, the State says, is because the 2006 amendments to the Voting Rights Act made the Act inapplicable to changes in ballot access laws. As relevant here, the 2006 amendments added two sections to the Act. See Pub. L. No. 109-246, 120 Stat. 577 (2006). Section 5(b) clarified that a voting change “denies or abridges the right to vote within the meaning of section 5(a) if it “will have the effect of diminishing the ability of any citizens of the United States on account of *313 race or color [or membership in a language minority group] ... to elect their preferred candidates of choice.” 42 U.S.C. § 1973c(b). And section 5(d) further explained that the purpose of section 5(b) “is to protect the ability of [minority] citizens to elect their preferred candidates of choice.” Id § 1973c(d).
Florida maintains that these amendments made “ability to elect” the only relevant consideration under the section 5 effect test. And it further argues that, when Congress used the phrase “ability to elect,” it meant the ability of minorities as a group to elect candidates of the group’s choice. In Florida’s view, only voting changes that dilute a minority group’s vote — like redistricting or annexation — can normally impact a minority group’s ability to elect, whereas ballot access measures— like those at issue here — normally cannot. Accordingly, Florida concludes, section 5’s effect test can play no role in this case. See Fla. Br. 49, 51-53.
Contrary to Florida’s view, however, the 2006 amendments did not inoculate covered jurisdictions from section 5 review when making changes in ballot access rules. Election law changes dealing with ballot access have long been regarded as the kinds of changes that are at the core of the section 5 preclearance requirement. See Nw. Austin Mun. Utility Dist. No. One v. Holder, 557 U.S. 193, 198 , 129 S.Ct. 2504 , 174 L.Ed.2d 140 (2009) (“We have interpreted the requirements of § 5 to apply not only to the ballot-access rights guaranteed by § 4, but to drawing district lines as well.” (emphasis added)). 8 Indeed, the Voting Rights Act itself defines “voting” to include “all action necessary to make a vote effective ..., including, but not limited to, registration, ... casting a ballot, and having such ballot counted properly.” 42 U.S.C. § 1973i(c)(l). 9 The voting changes at issue in this opinion— which impose additional restrictions on early voting and polling place procedures for inter-county movers — fall squarely within that expansive definition of voting rights. Moreover, although most of section 5 case law involves challenges to redistricting, annexation, and other potential forms of vote dilution, it is plain that laws that make it difficult for minority voters to register to vote or cast a ballot can just as readily — if not more readily- — -lead to a “retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.” Beer, 425 U.S. at 141 , 96 S.Ct. 1357 .
The 2006 amendments to the Voting Rights Act did nothing to alter that basic framework. As relevant here, those amendments simply clarify that retrogressive effects include any diminution in minority voters’ ability to elect their candidates of choice. The language added to section 5(b), for example, provides:
Any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting that has *314 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, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, to elect their preferred candidates of choice denies or abridges the right to vote within the meaning of subsection (a) of this section.
42 U.S.C. § 1973e(b) (emphasis added). That language merely supplements rather than supplants the broad requirement imposed on covered jurisdictions — in the original and still extant section 5(a) — to demonstrate that their voting changes will not “have the effect of denying or abridging the right to vote on account of race or color” or membership in a language minority group. Id. § 1973c(a). Likewise, the language added to section 5(d) states: “The purpose of subsection (b) of this section is to protect the ability of [minority] citizens to elect their preferred candidates of choice.” Id. § 1973e(d). But that provision refers back only to subsection (b); it does not affect or construe subsection 5(a), nor does it purport to make “ability to elect” the only relevant test for section 5 purposes. 10
Furthermore, an examination of the legislative history of the 2006 reauthorization confirms that the purpose behind adding the “ability to elect” language in 42 U.S.C. § 1973c(b) and (d) was simply to legislatively overrule a particular interpretation of the effect prong offered by the Supreme Court in one case: Georgia v. Ashcroft, 539 U.S. 461 , 123 S.Ct. 2498 , 156 L.Ed.2d 428 (2003). In that case, which involved allegations of vote dilution in the redistricting context, the Court adopted a multi-factor “totality of the circumstances” test, emphasizing that retrogression for vote dilution purposes should be evaluated by reference to “all the relevant circumstances, such as the ability of minority voters to elect their candidate of choice, the extent of the minority group’s opportunity to participate in the political process [through ‘influence districts’ and other means], and the feasibility of creating a nonretrogressive plan.” Id. at 479 , 123 S.Ct. 2498 . During the 2006 reauthorization debates, Congress expressed concern that the open-ended Ashcroft framework would lead to “substantial uncertainty” and would hamstring the Attorney General’s ability to make expeditious preclearance determinations. See H.R. Rep. No. 109-478, at 68, 2006 U.S.C.C.A.N. 618, 671. Accordingly, Congress added the language of 42 U.S.C. § 1973c(b) and (d) as part of the so-called “Georgia v. Ashcroft fix,” in order to return the analysis to the comparatively simpler Beer framework. But nothing in the 2006 legislative record indicates that Congress meant to make the “ability to elect” standard the only relevant criterion under section 5’s effect test. And there is certainly nothing to suggest that Congress meant to permit covered jurisdictions to adopt retrogressive restrictions on ballot access without an examination of the effects of those changes under section 5.
*315 The argument that the 2006 Congress exempted ballot access changes from the scope of section 5’s effect test is all the more implausible because reading the statute in the manner that Florida suggests would not only contradict the plain language of section 5(a), it would undermine the purpose of the Voting Rights Act. After all, section 5 was passed primarily because certain states and other covered jurisdictions were using “tests and devices,” such as poll taxes, literacy tests, and other voting qualifications, to restrict minority voters’ access to the ballot. See Katzenbach, 383 U.S. at 310-15 , 86 S.Ct. 803 . Yet under Florida’s proposed interpretation, such tests and devices would escape scrutiny under the effect prong of section 5 precisely became they deal with ballot access measures, rather than “second-generation” discriminatory measures such as vote dilution. We do not believe— nor do we find any evidence — that this was the purpose of the Congress that extended the Voting Rights Act in 2006.
In any event, even if Florida’s premise were correct and the “ability to elect” standard were now the sole criterion by which retrogressive effects may be judged, the State’s conclusion would still not follow. It is axiomatic that in order for voters to be able to elect the candidates of their choice, they must first be able to register to vote, make it to a polling place, and cast a ballot that will count. Accordingly, election law changes that retrogressively burden such activities may well result in a diminution in minority voters’ “ability ... to elect their preferred candidates of choice.” 42 U.S.C. § 1973c(b), (d).
2. Next, Florida seeks to narrow the scope of the section 5 inquiry by pointing to the language in section 5 requiring covered jurisdictions to demonstrate that their voting changes will not “have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title.” 42 U.S.C. § 1973c(a) (emphasis added). In Florida’s view, the “on account of’ language “requires a ‘but for’ causal connection” between race and retrogression. Fla. Br. 55. In other words, Florida contends that under section 5, “the race, color, or language minority status of the affected persons must play a decisive role in producing the prohibited effect.” Id. Florida cites no case that has ever interpreted section 5 in this narrow manner. Moreover, although the State proffers two slightly different constructions of its proposed “but for” test, each would render the section’s effect prong toothless.
Under Florida’s first construction, “a voting change violates the ‘effect’ prong of the statute only if it both has a racially retrogressive effect and the covered jurisdiction made the voting change because it would have that racially retrogressive effect.” Fla. Br. 56 (emphasis in original). This reading of the statute would render the effect prong entirely redundant of the purpose prong, thereby contradicting decades of controlling precedent. See, e.g., Lopez, 525 U.S. at 283 , 119 S.Ct. 693 (noting that section 5 “guard[s] against both discriminatory animus and the potentially harmful effect of neutral laws” (emphasis added)). 11 Such redundancy would also *316 violate a basic canon of statutory construction; section 5, after all, has both a purpose and an effect prong, see 42 U.S.C. § 1973c(a), and each must be given independent force, see Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825 , 837 & n. 11, 108 S.Ct. 2182 , 100 L.Ed.2d 836 (1988) (collecting cases stating that courts should hesitate “to adopt an interpretation of a congressional enactment which renders superfluous another portion of that same law”).
Florida’s second proposed construction is that “a change will violate the effect prong if it has a retrogressive effect on minority voters and the voters’ race, color, or language minority status is the reason for the retrogression.” Fla. Br. 56 (emphasis in original). Under that reading, “[a] voting change could not fail the ‘effect’ prong merely based on an incidental correlation.” Id. In other words, “if the retrogression is ‘because of some other factor (e.g., socioeconomic status ...),” which just happens to be correlated with race, “it is not ‘because of race, color, or language minority status and preclearance cannot be denied under the ‘effect’ prong.” Id. This argument, too, would read the effect test out of the statute. It is difficult to imagine an example of a voting law or practice that would meet such a stringent definition of race-based causation — unless, of course, the law were something so facially discriminatory as “African-Americans may not vote.” The Voting Rights Act is plainly not limited to addressing such obvious forms of discrimination. Indeed, the purpose of the Act was to eliminate “the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of their race.” Allen, 393 U.S. at 565-66, 89 S.Ct. 817 . And the prototypical examples of voting laws that are disallowed by the Act — laws like literacy tests and poll taxes — were not based directly on race, but rather on the correlation of race with low literacy rates, poor educational opportunities, and poverty. Florida’s proposed interpretation of the effect test would thus mean that section 5 could not prevent the adoption of modern-day equivalents of Jim Crow-era voting laws. To state that proposition is to refute it.
3. Third, Florida contends that the effects of its voting changes must be evaluated “vis-a-vis the 1972 benchmark” — that is, the laws that were “in force or effect” in Florida’s covered counties “on November 1, 1972, the effective date of their coverage.” Fla. Br. 58. 12 This argument need not detain us long because it is foreclosed by numerous binding precedents that identify the relevant section 5 “baseline as the most recent practice that was both precleared and ‘in force or effect’ — or, absent any change since the jurisdiction’s coverage date, the practice that was ‘in force or effect’ on that date.” Riley v. Kennedy, 553 U.S. 406, 421 , 128 S.Ct. 1970 , 170 L.Ed.2d 837 (2008) (emphasis added). 13 In *317 other words, “[t]o determine whether there have been changes with respect to voting, we must compare the challenged practices with those in existence before they were adopted.” Presley v. Etowah Cnty. Comm’n, 502 U.S. 491, 495 , 112 S.Ct. 820 , 117 L.Ed.2d 51 (1992). If the covered jurisdiction’s voting practices have been unchanged since the date on which the jurisdiction became subject to section 5, then the practices in existence on the date of coverage serve as the benchmark. See id. (“Absent relevant intervening changes, the Act requires us to use practices in existence on [the date of coverage] as our standard of comparison.” (emphasis added)). But once the jurisdiction amends its voting laws, the laws that existed on its coverage date are no longer “directly relevant, for differences once precleared normally need not be cleared again.” Young v. Fordice, 520 U.S. 273, 281 , 117 S.Ct. 1228 , 137 L.Ed.2d 448 (1997). Instead, the new laws “become part of the baseline standard for purposes of determining” compliance with section 5. Id.
Florida seeks to cast the language in Riley (and other opinions) that defines the relevant benchmark as “the most recent practice that was both precleared and ‘in force or effect,’ ” 553 U.S. at 421 , 128 S.Ct. 1970 , as merely an unchallenged assumption. See Fla. Br. 58-59. But whether “unchallenged” or not, it has been consistently applied and has formed the basis of Supreme Court section 5 jurisprudence for decades. As an inferior court, we are not empowered to question such decisive language. See Overby v. Nat’l Ass’n of Letter Carriers, 595 F.3d 1290, 1295 (D.C.Cir. 2010) (noting that “carefully considered language of the Supreme Court, even if technically dictum, generally must be treated as authoritative[,] ... especially [where] the Supreme Court has reiterated the same teaching” (internal citations and quotation marks omitted)). 14
4. Fourth, even if we adopt the retrogression test outlined in Beer and the traditional benchmark outlined in Riley , Florida asks us to make a number of narrowing constructions for purposes of applying the retrogression test to this case. We also reject these novel arguments because they are inconsistent with the central goal of the Voting Rights Act: to provide robust and meaningful protections for minority voting rights.
a. Florida’s first such argument contends that the only ballot access changes that violate the effect test are those that make it impossible for minority citizens to vote. See Fla. Br. 61. We cannot agree, however, that the mere existence of other possible avenues for voting renders Florida’s changes to its early voting and inter-county mover procedures immune from section 5 scrutiny. If that were the case, a state could close polling places in minority precincts and yet survive the effect test so long as voters still had the option to travel *318 across town to more distant polls. No court has endorsed such a restrictive construction of the section 5 effect prong. See Bossier Parish Sch. Bd. v. Reno, 7 F.Supp.2d 29, 31 (D.D.C.1998) (noting that the section 5 effect test is “broad enough to identify ‘retrogression’ ... if (to imagine an example not present in this case) polling places were located so that they are less convenient to black voters than before the change.”), aff'd, 528 U.S. 320 , 120 S.Ct. 866 , 145 L.Ed.2d 845 (2000). Nor do we. Although the availability of other options may be relevant to the retrogression analysis, it is not dispositive.
b. We also decline Florida’s invitation to import a requirement that a change constitute a “severe burden” or impose “excessively burdensome requirements” on the right to vote before it can be considered retrogressive. Fla. Br. 60 (citing Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 202 , 128 S.Ct. 1610 , 170 L.Ed.2d 574 (2008); Burdick v. Takushi, 504 U.S. 428, 433-34 , 112 S.Ct. 2059 , 119 L.Ed.2d 245 (1992); Storer v. Brown, 415 U.S. 724, 728-29 , 94 S.Ct. 1274 , 39 L.Ed.2d 714 (1974)). That language is drawn from election-law cases decided in the First and Fourteenth Amendment context, as part of a determination of whether a given voting law should be subject to strict scrutiny even if no suspect classification is involved. As such, it does not control here. Instead, the question for section 5 purposes is simply whether the burdens are sufficiently material to result in retrogression with respect to minority voters’ exercise of their voting rights.
c. We also reject Florida’s assertion that voting changes can have “de minimis,” and therefore permissible, effects if they only burden a small number of voters. Cf. Fla. Br. 62-66. If even a small number of voters are sufficiently burdened by a voting change that they do not exercise the franchise when they otherwise would have done so, then that change can (under some circumstances) be considered retrogressive. 15 Voting is a fundamental right, “preservative of other basic civil and political rights,” Reynolds v. Sims, 377 U.S. 533, 562 , 84 S.Ct. 1362 , 12 L.Ed.2d 506 (1964), and no amount of voter disenfranchisement can be regarded as “de minimis.”
d. Further, as we explain in more detail in the course of our discussion of specific voting changes, see infra Part II.B.l, we disagree with Florida’s position that a change is not retrogressive if it affects “in the aggregate significantly more [w]hites than minorities.” Fla. Br. 53 (emphasis added). Focusing on the effects of voting changes in absolute terms would mean that almost no ballot access change would be considered retrogressive; after all, the fact that fewer members of a particular group are present in the overall electorate is part of what it means to be a minority group. Applying the effect test in the manner Florida suggests would thus allow covered jurisdictions to enact changes with clearly adverse effects on minority voters so long as more white voters were also affected. That approach would fly in the face of the Voting Rights Act’s primary goal of protecting minority voting populations. The retrogression assessment must therefore be conducted in relative terms, with reference to the proportions of each group affected by the change.
*319 e. Finally, we reject Florida’s contention that the effect prong of the statute must be read in accordance with the State’s proposed interpretations because there are “constitutional concerns” with any contrary reading. See, e.g., Fla. Br. 57. 16 We do not discern constitutional difficulties with the interpretation we have set forth above. Contrary to Florida’s contention, “[t]he net effect” of this construction of the section 5 effect test is not “to require states and political subdivisions to take account of race in every decision they make in order to ensure that any change would have an ameliorative impact on minority groups.” Id. at 57-58. Nothing in the effect test as we have construed it for application to ballot access cases requires covered jurisdictions to maximize voting opportunities for their minority citizens alone. See id. Rather, under section 5, covered jurisdictions must simply ensure that their ballot access changes do not have retrogressive effects on minority voting rights — that is, that they do not “worsen the position of minority voters” in comparison to the pre-existing voting standards, practices, or procedures. Bossier Parish II, 528 U.S. at 324 , 120 S.Ct. 866 ; see City of Lockhart, 460 U.S. at 134 & n. 10, 103 S.Ct. 998 .
Nor does this interpretation mean, as Florida suggests, see Fla. Br. 58 n.12, that voting changes that benefit white voters automatically result in retrogression for minority voters. Indeed, the United States and the intervenors explicitly disclaim that position. DOJ Br. 68 n.17. Rather, the question is whether these voting changes will have adverse effects on minority voters’ “effective exercise of the electoral franchise” in Florida’s covered counties. Beer, 425 U.S. at 141 , 96 S.Ct. 1357 .
We now proceed to apply the section 5 effect test to the two voting changes at issue in this opinion, beginning with 'the new procedures for early in-person voting. In examining each of the changes, we are guided by the two central inquiries that we have outlined above: (1) Are the individuals who will be affected by the change disproportionately likely to be members of a protected minority group? And (2) Does the change impose a burden material enough that it will likely cause some reasonable minority voters not to exercise the franchise?
B. Early Voting Changes.
As explained above, see supra Part I.C.l, the relevant changes to Florida’s early voting procedures involve the number of days, the number of hours, the specific hours, and the weekend times that early voting may be offered in future elections. Under the benchmark law, the potential early voting period lasted a total of 14 days, beginning “on the 15th day before an election and endfing] on the 2nd day before an election.” Fla. Stat. § 101.657 (d) (2010). Under that prior law, exactly 8 hours of early voting were mandated on each weekday, and exactly 8 hours in the aggregate each weekend, yielding a total of 96 early voting hours. Id. Early voting sites were required to “open no sooner than 7 a.m. and close no later than 7 p.m. on each applicable day.” Id. Within this important constraint, local supervisors were free to select the specific voting hours for each voting day as they *320 saw fit. See id. Historically, local supervisors of elections in the five covered counties have chosen a range of voting hours depending on the type of election and the location of the early voting site. With one exception, all of the permutations used by the covered counties captured at least a part of the early morning or evening hours thought to be most convenient for those early voters working the standard 9 a.m. to 5 p.m. workday. 17 Finally, although the prior law permitted local supervisors of elections to choose whether their 8 aggregate weekend early voting hours would fall on a Saturday, a Sunday, or both, supervisors in each of Florida’s five covered counties decided to offer early voting only on Saturdays. This meant that early voting was actually offered in each of the covered counties for a total of only 12 days under the benchmark statute.
In short, the benchmark practice against which we must compare the early voting changes was 96 hours over 12 days, none of which was a Sunday. See Riley, 553 U.S. at 421 , 128 S.Ct. 1970 (holding that the benchmark is the last precleared law actually in practice in the covered jurisdiction). Each day included 8 hours of early voting, although the specific hours varied. See supra note 17.
Because we have not been presented with a specific voting plan from any of the five covered counties, there is much that we do not know about how the new law will be implemented in the five covered counties. We do know, however, that Florida’s new law reduces the total number of days available for early voting. The new early voting period begins “on the 10th day before a [state or federal] election ... and end[s] on the 3rd day before the election.” Fla. Stat. § 101.657 (d) (2011). Thus, under the new statute, early voting lasts from the Saturday two weekends before the election through the next Saturday (three days before Election Day) — for a total of only eight days. That is four fewer days than under the benchmark law.
Moreover, under the new law, election supervisors in each county now have the discretion to determine the number of daily hours of early voting in their counties, subject to a statutory requirement that “no less than 6 hours and no more than 12 hours” be offered on each of the 8 early voting days. Id. The end result is that, although Florida’s counties may choose the maximum and still offer 96 total hours of early voting (12 hours per day over 8 days), they may also choose the minimum and offer only 48 total hours (6 hours per day over 8 days) — or anything in between. An early voting period lasting only 48 hours would reflect exactly half of the hours that were required under the benchmark practice.
The new law also grants election supervisors the discretion to select the specific hours of early voting for each voting day, unencumbered by the prior law’s constraint that early voting sites could not open before 7 a.m. or close after 7 p.m. Compare Fla. Stat. § 101.657 (d) (2011) (providing that “the supervisor has the discretion to determine the hours of operation of early voting sites”), with Fla. Stat. § 101.657 (d) (2010) (“Early voting sites shall open no sooner than 7 a.m. and close no later than 7 p.m. on each applicable *321 day.”). If supervisors of elections decide to offer the maximum of 12 hours each day on a 7 a.m. to 7 p.m. schedule, then the daily voting hours would include both morning and evening hours that fall outside the standard 9 a.m. to 5 p.m. workday. If they offered 12 hours but a different schedule, that would not necessarily be so. 18 And if they instead offered only the minimum of 6 hours, there would be many schedules that would not include nonworking hours.
Finally, the new statute mandates some additional weekend voting that was not offered under the benchmark practice. In particular, the law requires early voting for at least 6 hours on the Sunday nine days before Election Day, whereas, as we have already explained, there was no Sunday early voting at all under the benchmark practice in the covered counties. And although the new law removes the theoretical possibility under the benchmark statute of early voting on the Sunday immediately before Election Day, compare Fla. Stat. § 101.657 (d) (2011), with Fla. Stat. § 101.657 (d) (2010), that does not affect our analysis because none of the covered counties offered any Sunday voting at all. See Riley, 553 U.S. at 421 , 128 S.Ct. 1970 (holding that the relevant benchmark is the “most recent practice that was both precleared and in force or effect” (emphasis added) (internal citation and quotation marks omitted)); City of Lockhart, 460 U.S. at 132 , 103 S.Ct. 998 (“The proper comparison is between the new system and the system actually in effect.”).
In sum: With respect to days, the new law results in 4 fewer early voting days than the benchmark (8 days rather than 12). One of those days is now a Sunday, whereas there was no Sunday voting under the benchmark practice. With respect to hours, the new law may result in a total of as few as 48 hours of early voting — one half of the 96 required under the benchmark — because it permits counties to offer as few as 6 hours per day (over the 8 days). But the new law also permits counties to offer as many as 12 hours of voting per day, which, if adopted by the counties, would result in a maximum of 96 hours of early voting — the same number of hours as under the benchmark. With respect to the specific hours of voting, the new law leaves the supervisors unconstrained. Hence, it may result in fewer of the early morning and evening hours that are convenient for voters working the standard 9 a.m. to 5 p.m. workday. Or, it may result in more such hours.
The interrelationship between the days and hours of early voting under the old and new law introduces uncertainty into our evaluation of the effects of these early voting changes. For the reasons discussed below, we conclude that at least one permutation of the early voting changes would result in retrogression. In particular, we conclude that Florida has failed to meet its burden of showing that retrogression would not occur if the covered counties not only reduced the number of early voting days from 12 to 8 as required by the new law, but also reduced their total early voting hours from 96 to 48 (regardless of the specific hours chosen). As also discussed below, however, we conclude that if the counties were instead to utilize the maximum 96 hours permitted *322 under the new law, and offer them on a standard 7 a.m. to 7 p.m. schedule that would provide the opportunity for voters to vote before and after the workday, Florida would likely be able to meet its burden of demonstrating that the overall effect of the changes would not be retrogressive. But neither Florida nor the counties have submitted the counties’ intended hours for preclearance, nor do we have any real indication of what the counties will do. Accordingly, because retrogression may well follow from the new statute, we cannot grant preclearance at this time. Our analysis follows.
1. As an initial matter, we find that minority voters will be disproportionately affected by the changes in early voting procedures because they disproportionately use early in-person voting. As the intervenors’ expert witness, Professor Paul Gronke, 19 determined, the proportion of African-American usage of early in-person voting in Florida “has exceeded White usage of early in-person voting in four of five [recent] federal elections,” and “substantially exceeded White usage in both the 2004 and 2008 presidential elections.” A10092,10104 (Am. Expert Report of Prof. Paul Gronke). 20 The data is particularly striking for the 2008 general election, when more than half (54%) of African-American voters in Florida east ballots using early in-person voting — twice the rate of white voters. A10106 (Am. Expert Report of Prof. Gronke, Ex. Seven); see A7818 (Expert Report of Dr. Stewart, Attach. J). And although rates of early vot *323 ing declined across the board in 2010, the African-American usage rate still exceeded the white rate by a factor of about one-third in the 2010 general election. See A 10106 (Am. Expert Report of Prof. Gronke, Ex. Seven). 21
These disproportionate usage rates hold true in Florida’s five covered counties as well. In 2008, for example, 52% of all African-American voters in the covered counties east an early in-person ballot, compared to only 28% of white voters. Id. at A10095-96, 10105; see also A7821 (Expert Report of Dr. Stewart, Attach. M). African-American rates of early in-person voting in the five covered counties also “remained statistically significantly higher [than white rates] in the 2010 primary and general elections.” A10096 (Am. Expert Report of Prof. Gronke). Even Florida’s own expert witness, Professor M.V. (Trey) Hood III, acknowledged that he “can see the pattern” of higher levels of African-American usage of early in-person voting in the covered counties after the 2008 primary election. A5855 (Hood Dep.); see also A9041-42 (Expert Report of Prof. Hood) (showing that the African-American rates of early voting in the covered counties exceeded the rates of white voters to a significant degree in the 2008 general election, the 2010 primary, and the 2010 general election (and, to a lesser extent, in the 2008 primary)).
Furthermore, all available evidence suggests that these trends “will continue into the 2012 general [election] and likely in[to] the future.” See A9918 (De Bene Esse Dep. of Prof. Gronke). According to Professor Gronke:
The fact that the rates of African American early in-person voting in the covered counties were almost double the White rate in the 2008 general election and remained statistically significantly higher in the 2010 primary and general elections is strong evidence that African Americans will continue to have a higher rate of usage for early in-person voting when compared to White voters.
A10096 (Am. Expert Report of Prof. Gronke); see A10079 (De Bene Esse Dep. of Prof. Gronke) (“I think that history will show that 2008 ha[d] a particularly high rate [of African-American early voting], but that that adoption rate by African-Americans had a lasting impact, and that the higher rate of usage will continue.”); id. at A10034-36. Florida’s expert likewise agreed that it is “more likely than not” that in the 2012 general election, the African-American usage rate of early in-person voting will be higher than the white usage rate. A5875-76 (Hood Dep.). 22
Moreover, although the differences are not as stark as for the entire early voting period, the evidence also shows that African-American voters disproportionately used the first five days of the benchmark early voting period — i.e., the Monday through Friday of the week that falls two weeks before Election Day — all of which *324 will now be eliminated under HB 1355. In the 2008 general presidential election, for example, approximately 17.25% of African-American voters in the covered counties cast an early in-person ballot during the first five days of early voting (the so-called “repealed days” of early voting), compared to only 9.3% of white voters. A10097 (Am. Expert Report of Prof. Gronke); see A7821 (Expert Report of Dr. Stewart, Attach. M). In other words, African-American voters used the repealed days of early voting at rates nearly double those of white voters in 2008. The difference between these percentages “far exceeds the ... statistical significance criterion.” A 10097 (Am. Expert Report of Prof. Gronke). And while the data with respect to use of the repealed days in the 2010 elections is more inconclusive, 23 for reasons discussed below we find the 2008 presidential election to be the best indicator of future trends.
In finding that African-American voters in the covered counties will be disproportionately affected by the reduction in early voting days under the new law, we reject the contrary opinions of Florida’s expert witness, Professor Hood. 24 We do so because the analysis underlying his conclusions suffers from a number of methodological flaws. 25
First, Professor Hood asserts that the effects of the early voting changes will be “disproportionately borne by [white] voters” because they “comprise the greatest share of total number of early votes cast” in the covered counties. A9061 (Expert Report of Prof. Hood). But as the intervenors’ expert, Professor Gronke, convincingly explains, this “analytic method violates a basic tenet of comparative analysis” because it fails to “control for ... the size of the underlying subgroups.” A9089 (Rebuttal Decl. of Prof. Gronke). After all, it is “no surprise that [white] voters are ... the majority of users of early in-person voting” because they also represent “the vast majority of all Florida voters,” id. (emphasis added), including those in the covered counties, see A7683-84 (Expert Report and Deck of Russell Weaver) (collecting census data in the covered counties). 26 That is why, as Professor Gronke explains, adjusting for population demo *325 graphics is critical in assessing the potential retrogressive effects of a given voting change:
[I]f you simply look at the absolute number of impacted voters, inevitably it’s going to look like whites are most impacted simply because they constitute more of the voters.... It’s simply misleading if you’re going to be looking at the impact on race to look at absolute numbers because all you’re going to do when you look at absolute numbers is ... examin[e] whether one group is larger or smaller.... You’re not considering the impact of race on the rates of usage.
A9888-90 (De Bene Esse Dep. of Prof. Gronke); see A9089 n.l (Rebuttal Deck of Prof. Gronke) (explaining how Prof. Hood’s flawed analysis could lead to endorsing a poll tax that has an obviously disparate effect on minority voters). As even Professor Hood conceded, the accepted practice in the social sciences is to look at the rate of impact on different groups, not simply absolute numbers. A5926-28 (Hood Dep.). Yet his calculations do not follow that accepted method of statistical analysis. See id. at 584(M2.
Moreover, as we suggested above, adopting Professor Hood’s approach would permit covered jurisdictions to enact changes with clearly adverse effects on minority voters as long as more white voters were also affected. See supra Part II.A.4.d. 27 Since having fewer voters is part of what it means to be a “minority,” that would render section 5 ineffectual in virtually all ballot access cases — an approach that cannot be squared with Congress’ intent to use the section to protect minority voting populations. Accordingly, as we concluded above, the retrogression assessment must be conducted in relative terms, with reference to the proportions of each group affected by the change.
Second, we reject other calculations in Professor Hood’s expert report because we agree with the intervenors’ expert that “[i]n several instances Professor Hood inappropriately pools together groups of dissimilar data, which is not methodologically appropriate.” A9092 (Rebuttal Deck of Prof. Gronke). For example, Professor Hood “attempts to draw conclusions based on data ‘pooled’ from different kinds of elections, without offering a reason to believe that early voting patterns are in fact common across the different types of elections.” Id. And “[tjhere is no evidence that Professor Hood conducted a pooling test, a statistical tool that helps determine whether it is valid to aggregate data” from those different types of elections. Id.; see A5762-64 (Hood Dep.) (conceding that he pooled the data without running any of the standard statistical tests to determine whether such pooling was appropriate). This problem is exacerbated, for reasons discussed in more detail below, by the fact that Professor Hood often “aggregates] data from all elections analyzed in his Re *326 port except for the 2008 general election,” thereby further distorting the data. A9092 (Rebuttal Decl. of Prof. Gronke).
Professor Hood also frequently lumps African-Americans and Hispanics into a single category of “Minorities,” which misleadingly flattens the data because, unlike African-Americans, Hispanic voters use early voting at about the same rate as whites. See A7818 (Expert Report of Dr. Stewart, Attach. J); A10105 (Am. Expert Report of Prof. Gronke, Ex. Six). This “masks significant differences between White and African-American rates of early in-person voting.” A9092 (Rebuttal Decl. of Prof. Gronke). As Professor Gronke notes, “[i]t is inconsistent with political science research standards to pool together these two racial groups when they demonstrate different behaviors in voting.” Id. at A9093. Moreover, it is at odds with the relevant inquiry under section 5 because the section forbids a covered jurisdiction from diminishing voting rights “on account of race or color, or” membership in a language minority group. 42 U.S.C. § 1973e(a) (emphasis added).
Finally, we reject Professor Hood’s contention that the 2008 general election was an “outlier” that should be ignored. More specifically, Professor Hood asserts that the “anomalous” circumstances surrounding the 2008 election — namely, “the historic candidacy of Barack Obama, the first African-American presidential candidate representing one of the two major political parties in the United States,” coupled with the “intensity of interest in President Obama’s candidacy” among African-American voters — account for the “spike in early in-person voting turnout among African-Americans” in 2008. A9042 (Expert Report of Prof. Hood). According to Professor Hood, if “the 2008 general election is removed from the analysis, the numbers more accurately reflect the historic trends.” Id. at A9043. And once the 2008 general election is discarded, the rates of white and minority usage of early in-person voting then appear — at least to Professor Hood’s eye — “roughly comparable,” meaning (in his view) that the early voting changes should not have disproportionate effects on African-American voters. Id. at A9041-42; see also id. at A9061 (describing the early voting turnout rates by race as “very similar”); Fla. Br. 65 (“Putting aside an anomalous 2008 general election, ... [w]hite voters are slightly more likely to use early voting than their minority counterparts.” (emphasis added)).
We find this reasoning unpersuasive for several reasons. First, and most important, we can hardly discard an election as an “outlier” or an “anomaly” simply because an African-American ran for President for the first time as a major-party candidate and many African-Americans voted for him. The Voting Rights Act was designed to ensure that, among other things, minorities can “elect their preferred candidates of choice.” 42 U.S.C. § 1973e(d). Thus, we 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.
In addition, although the 2008 election was of course unique in certain respects, the record does not support the assertion that that election was an “outlier” that can be discarded out of hand. Rather, the record evidence suggests that the 2008 election is highly predictive of what is likely to happen in 2012. The expert witnesses in this case are all generally in agreement that, when assessing future usage rates of early voting, comparisons are best made between “like” elections, and that the most recent analogous election is the best predictor of what will happen in the future. Accordingly, the 2008 general presidential election represents the best guidepost for projecting how early in-per *327 son voting will be used in the upcoming 2012 general presidential election. See, e.g., A5657-58 (Stewart Dep.); A9091 (Rebuttal Decl. of Prof. Gronke); A10098 (Am. Expert Report of Prof. Gronke); see also A5867-68 (Hood Dep.) (conceding that “the 2008 presidential election would be our best gauge” of “what’s going to occur in the 2012 general election”). For this reason alone, “it is not by any means an ‘outlier’ in terms of predictive value.” A9091 (Rebuttal Decl. of Prof. Gronke). And that is particularly true because many of the factors that supposedly rendered the 2008 election “anomalous” will again be factors in 2012:
[B]ecause President Obama will be on the ballot in 2012, that election will present another ‘historic’ moment in that the first African American president will be seeking to win a second term. Thus, many of the factors at play in 2008 — e.g., increased get-out-the vote efforts, and the intensity of interest in the African American community — will come into play again in 2012.
Id.
Moreover, even setting aside the specifics of the 2008 and 2012 general elections, the record indicates that the 2008 general election was not a mere one-off phenomenon. The trend of increased African-American usage of early in-person voting predated 2008 to some degree: African-American early voting rates in Florida exceeded white early voting rates in 2004, as well. See A10092, 10104 (Am. Expert Report of Prof. Gronke). And after the 2008 election, the rates of African-American usage of early in-person voting in Florida have continued to exceed those of white voters to a statistically significant degree. See, e.g., A9090 (Rebuttal Decl. of Prof. Gronke). Hence, it is not true, in the words of Florida’s expert, that once the 2008 election is removed from the picture the rates of white and African-American early voting are “roughly comparable.” A9041 (Expert Report of Prof. Hood). And in any event, “[t]he term ‘roughly comparable’ is not an accepted term of art or standard for statistical comparisons in the field of political science research.” A9090 (Rebuttal Decl. of Prof. Gronke). Rather, “[t]he methodologically appropriate starting point is to determine whether the differences are statistically significant.” Id. 28 And, even discounting the 2008 election, the data shows a clear and statistically significant “trend of higher usage [of early voting] over time by African American voters in the Covered Counties and statewide.” Id. 29
In short, rather than being an “outlier,” the evidence suggests that the 2008 general election is best seen as a “game-changer” that simply magnified already nascent trends in African-American preferences for early in-person voting. See A10069 (De Bene Esse Dep. of Prof. Gronke). 30 *328 Indeed, Florida’s own expert witness acknowledges that the 2008 election was not an outlier when compared to the relative rates of African-American versus white early in-person voting in the four most recent federal elections in Florida. A5965-66 (Hood Dep.). As such, there is no sound basis for disregarding the 2008 election in our evaluation of the effects of the new statute’s changes in early voting procedures.
2. Having determined that African-American voters in Florida’s covered counties are disproportionately likely to use the early voting days that would be eliminated under the new law, we proceed to evaluate whether Florida’s early voting changes will impose a materially increased burden on African-American voters’ effective exercise of the electoral franchise relative to the benchmark practice. As we have already suggested, this evaluation is complicated by the fact that the new law makes certain potential trade-offs between the days and hours of early voting: it decreases the available days, but allows local election officials to maintain the same total early voting hours and to enhance the accessibility of those hours, if they so choose. And it requires a voting day on a Sunday. That said, we do not yet know how the covered counties will decide to exercise their discretion with respect to the early voting hours offered in their jurisdictions: under the new law, election officials could choose to offer as many as 96 or as few as 48 hours of early voting, meaning that the total hours might remain the same as under the benchmark practice, or might be cut in half (or might end up somewhere in between). 31
Florida urges us to assume that “the Covered Counties may seek to provide the maximum early voting hours available under the Act (96 hours).” Fla. Br. 25. But because Florida bears the burden of proving that its new law will be nonretrogressive, the State must show — not simply assume — that given a menu of possible hours, its covered counties will choose non-retrogressive ones. Florida has submitted no evidence, however, that would permit us to predict with any confidence the number of early voting hours the covered counties will offer. No covered county’s election supervisor has submitted a county plan for preclearance. Most of the supervisors’ responses to questioning by the defendants on this subject may at best be described as equivocal. 32 And at least one covered-county supervisor indicated that she would not use the full 96 hours of early *329 voting, unless required to do so. See A3530-32 (Dep. of Lucretia Strickland, Hendry County SOE). Moreover, Florida acknowledges that it “has not issued any rule, directive, or guidance to Florida supervisors of elections ... regarding the manner in which [they] should exercise the discretion granted by HB 1355” to determine the number of early voting hours in their counties. A8283 (Fla. Resp. to Req. for Admiss. No. 18).
In light of these considerations, and in light of the fact that the burden is on Florida to prove that its new law will not have a retrogressive effect, we must proceed on the assumption that the counties will utilize the minimum rather than the maximum permitted hours. 33 If the effects would be nonretrogressive even on that assumption, then we could conclude that Florida has met its burden. But if they would be retrogressive at the minimum number of hours, then the uncertainty as to whether more hours will be offered (and whether those hours will be more or less accessible) means that Florida has not met its burden.
We conclude that Florida has failed to sustain its burden of proving that, if the covered counties offer only 48 hours of early voting (¿a, only 6 hours per day) as the new law permits, that change would not impose a material burden on — and therefore a retrogressive effect with respect to — African-American voters’ effective exercise of the electoral franchise. Under such circumstances, not only would the number of early voting days be reduced by one-third (from 12 to 8), but the total available early voting hours would be cut in half (from 96 to 48). Moreover, with only 6 hours available per day, it is likely that early voting would start after the workday starts and would end before the workday ends, making it even more inaccessible to many minority voters who have inflexible work schedules. See A9142-43 (Decl. of Cynthia Slater, 2d Vice-President of Florida NAACP). This dramatic reduction in a form of voting disproportionately used by African-Americans would be analogous to (although certainly not the same as) closing polling places in disproportionately African-American precincts. Although such action would not bar African-Americans from voting, it would impose a sufficiently material burden to cause some reasonable minority voters not to vote.
This conclusion is supported by testimony indicating that a two-week early voting period is important to get-out-the-vote (GOTV) efforts in minority communities. See, e.g., A9143 (Slater Deck); A9227-28 (Deck of Rev. Charles McKenzie, Florida state liaison for the Rainbow PUSH Coalition). 34 Record evidence suggests that *330 such efforts are important in enabling African-Americans “who want to vote but need help getting to the polls” to exercise the franchise. A9237 (Decl. of Ella Kate Coffee, African-American resident and GOTV volunteer in Hillsborough County); see A7693 (Expert Report and Decl. of Russell Weaver, Ex. 2) (noting that disproportionately more minority households in the covered counties have no motor vehicle available). With a substantially reduced early voting period, third-party groups would not be able to assist minority voters as effectively. See A9237 (Coffee Decl.). This, in turn, would likely make it more difficult for those minority voters who rely on such efforts to make it to the polls. Florida has not submitted any evidence to the contrary. Indeed, although Florida’s expert witness initially hypothesized that early voters should be able to adjust to even such a dramatic contraction in the early voting period, A9059-60 (Expert Report of Prof. Hood), he later conceded that there is no empirical support for that claim, and that it was nothing more than an “assumption” or “supposition” on his part, A5861, 5917-22 (Hood Dep.); see A9095 (Rebuttal Decl. of Prof. Gronke) (“I know of no empirical support for the conclusion that voters will successfully adjust ... under these conditions.”). 35
Moreover, even if all of the voters who would have used the repealed days of early voting did attempt to adjust to a shortened early voting schedule of only 48 hours over 8 days, that shift would create problems of its own for minority voting. In the 2008 general election, for example, 71,670 voters- — 14,897 of whom were African-American- — cast ballots in the covered counties during the early voting days that the new law has repealed. See A7820-21 (Expert Report of Dr. Stewart, Attachs. L & M); see also A9054-57 (Expert Report of Prof. Hood) (showing that approximately one-third to two-fifths of early voters voted in the first (repealed) week of early voting). According to testimony in the record, a shift of that magnitude to the remaining early voting days would lead to substantially increased lines, overcrowding, and confusion at the polls, which would in turn discourage some reasonable minority voters from waiting to cast their ballots. See, e.g., A3170-71, 3183-87 (Dep. of Harry Sawyer, Monroe County SOE); A3744-45, 3748 (Dep. of Earl Lennard, Hillsborough County SOE). 36 Indeed, election officials in Florida have testified that an extensive early voting period is necessary because Florida’s “electoral infrastructure is completely maxed out,” A440 (House State Affairs Comm. (Apr. 1, 2011) (Statement of Ion Sancho, Leon County SOE)), such that the State “would not be able to process record numbers of voters” in a substantially shorter time frame, A976-78 (Senate Rules Comm. (Apr. 15, 2011) (Sancho Statement)). 37 Florida legislators, too, *331 have warned that a “shortened period of early voting will cause congestion and long lines in populous areas of the state, including predominantly African-American neighborhoods in Hillsborough County,” and will thereby “discourage [minority] voters from voting.” A9108 (Decl. of Sen. Arthenia Joyner).
Florida counters that there is relatively little definitive evidence regarding how early voting actually affects overall voter turnout. This observation is accurate, given the fact that early voting itself is a relatively recent phenomenon. But the problem for Florida is that, under the Voting Rights Act, the State bears the burden of proving that its action will not have a retrogressive effect; the defendants do not have to prove that it will have such an effect. See Bossier Parish I, 520 U.S. at 480, 117 S.Ct. 1491 (“Section 5 ... imposes upon a covered jurisdiction the difficult burden of proving the absence of discriminatory purpose and effect.”). This is particularly so when it has already been shown — as it has been here — that a voting change does, in fact, disproportionately harm African-American voters. Hence, without some evidence indicating that minority voters would be able to adapt to such a substantial reduction in early voting hours, the State cannot justify a grant of preclearance. Florida has submitted no such evidence, whether empirical, anecdotal, or otherwise. Indeed, the most that Florida is willing to assert is that the “vast majority” — but apparently not all — of those African-American voters who would have voted during the repealed days “will still vote.” Fla. Br. 25.
Meanwhile, the academic scholarship and commentary is currently in a state of flux as to how the availability of early in-person voting affects overall voter turnout. The consensus prior to the 2008 election appears to have been that early in-person voting was a convenience that had an “insignificant or marginal effect on increasing the likelihood [that] an individual will vote.” A10131 (Robert Stein & Greg Vonnahme, Early, Absentee, and Mail-in Voting, in The Oxford Handbook of Am. Elections & Pol. Behavior (Jan Leighly, ed., 2010), at 185); see A5496 (Stewart Dep.) (“[T]he research up until around 2008 ... is that, in general, early voting procedures make voting more convenient for people who look like they have a ... propensity to vote, but do[] not generally increase turnout overall.”); see also A9093-95 (Rebuttal Decl. of Prof. Gronke). 38
According to the intervenors’ expert, however, “[t]he 2008 presidential and subsequent elections have challenged the conventional wisdom [regarding early voting], primarily because of changing voting patterns in the South.” A10091 (Am. Expert *332 Report of Prof. Gronke). And the United States’ expert further states that “the issue that [post-2008] research raises is whether the use of early voting in 2008 may ... have been related to a surge in turnout in 2008. So there may be something new afoot.” A5497 (Stewart Dep.). Moreover, even if early voting by itself does not affect overall voter turnout, there is evidence that it may do so when combined with other factors, such as GOTV drives. Indeed, “[t]here is a growing literature that takes a more nuanced approach to examining the relationship between convenience voting and turnout, conjecturing that although reforms may not increase overall participation, they may ... have an impact ... when combined with party mobilization efforts.” A7926 (Paul Gronke et ah, Convenience Voting, 11 Ann. Rev. Pol. Sci. 437, 443 (2008)); see A8009 (Paul Gronke, Early Voting Reforms & Am. Elections, Wm. & Mary Bill of Rts. J. 423, 432 (2008)) (stating that “[e]nough research has accumulated” for scholars to conclude that early voting “does encourage regular voters to participate in lower intensity contests that they might otherwise skip”); A9094 (Rebuttal Decl. of Prof. Gronke) (stating that, “[s]ince non-habitual voters are less likely to vote, early or on election day, convenience may have a significant and positive effect on their decision to vote” as well). In short, at the very least it can be said that “there is not currently a consensus ... that there is no effect of early in-person voting on turnout.” A9984 (De Bene Esse Dep. of Prof. Gronke).
Moreover, even if the (still developing) academic scholarship could be read in Florida’s favor, it would still be insufficient to carry Florida’s burden of proof. The literature that Florida cites addresses only the question of how adding early voting days affects overall voter turnout. It does not address the specific question before us: how decreasing an established early voting period from 12 days to 8 days (and from 96 hours to 48) will affect African-American voter turnout. Hence, even if the addition of early voting days does not significantly increase turnout, “it is not methodologically sound to assume that there will ... be little or no impact on overall turnout when voters (who have habituated to early in-person voting) face a loss of previously available voting days.” A9095 (Rebuttal Decl. of Prof. Gronke). Indeed, common sense suggests the opposite. 39
Finally, although we acknowledge that Florida’s new early voting statute makes some ameliorative adjustments in weekend early voting even at the minimum number of hours, we conclude that those changes *333 would not outweigh the negative effects on GOTV drives and lines at the polls that we have discussed above. As discussed above, the new statute mandates a Sunday of early voting that was not previously offered in any of the covered counties. Thus, even if the covered counties choose to offer the minimum 6 hours per day of early voting, they would still be required to offer 6 hours of voting on the Sunday nine days before Election Day. And given the importance of Sunday early voting for “souls to the polls” drives in the African-American community, see infra Part II. B.3, that adjustment can be expected to have some positive effects on the ability of African-Americans to reach the polls.
Nonetheless, those 6 hours of Sunday early voting would represent the only ameliorative aspect of the new law if the covered counties were to implement it by choosing the bare minimum number of hours. Moreover, they would be accompanied by a net decrease of 2 hours on each Saturday as compared to the benchmark. 40 Overall, we are not persuaded that merely shifting one of the remaining 8 days to a Sunday would make up for a 4-day and 48-hour decrease in early voting.
In sum, Florida is left with nothing to rebut either the testimony of the defendants’ witnesses or the common-sense judgment that a dramatic reduction in the form of voting that is disproportionately used by African-Americans would make it materially more difficult for some minority voters to cast a ballot than under the benchmark law. We therefore conclude that Florida has not met its burden of proving that removing a third of the days and half of the hours from its benchmark early voting procedures would have a non-retrogressive effect on minority voting rights in the covered counties.
3. Although we have concluded that we cannot preclear Florida’s early voting changes at this time because those changes authorize the covered counties to offer a statutory minimum number of hours that may result in retrogression, it is possible that the counties will instead, as Florida predicts, opt to provide substantially more hours than that minimum. As we discuss below, under at least one such scenario we are persuaded that Florida would likely satisfy its burden of showing a nonretrogressive effect: that is, if the covered counties were to provide the maximum authorized 96 hours on a standard 7 a.m. to 7 p.m. schedule. When a court finds that it cannot preclear one iteration of a submitted plan, but may be able to preclear a modified version, the Supreme Court has expressed approval for issuing a kind of “conditional order” indicating the circumstances under which approval may be obtained. See, e.g., City of Port Arthur, 459 U.S. at 167-68 , 103 S.Ct. 530 (expressing approval of the district court’s “conditional order” denying preclearance of the expansion of a city’s borders unless the city agreed to eliminate a majority-vote requirement for certain elections); City of Richmond, 422 U.S. at 370 , 95 S.Ct. 2296 (stating that the district court in City of Petersburg, 354 F.Supp. 1021 , “was correct in conditioning approval of the annexation upon the adoption of the plan to elect councilmen by wards”). We do so here.
*334 As we have noted above, although HB 1355 mandates a reduction in early voting days from 12 to 8 days, it authorizes the counties to offer a maximum of 12 hours on each of those early voting days — as compared to no more than 8 hours per day under the benchmark. (The counties are required to keep the polls open for 12 hours on Election Day itself. Fla. Stat. § 100.011 (1) (2011).) Under those circumstances, voters would have exactly the same total number of hours for early voting as under the benchmark law: 96 hours. Those hours would simply be distributed over a fewer number of days. 41
We do not discount the possibility that the reduction in days — considered alone— would make it more difficult for some voters to get to the polls. But not all reductions in early voting days have retrogressive effects, as the Justice Department has made clear by preclearing reductions in prior — albeit distinguishable — eases. See A9002-03 (preclearing Florida’s 2005 shortening of the early voting period from 15 to 14 days); [128] United States’ Notice in Resp. to Section 3(A) of the Court’s June 22, 2012 Order (noting preclearances involving, e.g., Texas (changing the start date for the in-person early voting period from 20 days to 17 days prior to an election); Georgia (reducing the early voting period from 45 days to 21 days)).
More important, we cannot consider the reduction in days alone: We must consider not only the effect of the “negative” aspects of the changes in law, but also of its ameliorative aspects. See City of Richmond, 422 U.S. at 370-71 , 95 S.Ct. 2296 ; DOJ Br. 68 (“The Department and courts consider whether a proposed change’s negative impact on minority voters has been offset by ameliorative steps taken by the jurisdiction.”). First among those, of course, is the tradeoff of hours for days. Although voters would not be able to vote during 4 days that were previously available, they would be able to vote during 4 hours each day that were not. Moreover, if election supervisors utilize a standard 7 a.m. to 7 p.m. voting day, this means that weekday voters would not have to vote during working hours, but could instead get to the polls before or after work— during the morning and evening hours that the record suggests would be most convenient for weekday voters and that would be more extended than those offered in any recent election. (Accordingly, when we conclude that there is a scenario that is likely to be nonretrogressive, that scenario includes a 7 a.m. to 7 p.m. schedule.) As the supervisor of elections in Hillsborough County stated, “some hours are more accessible to people than other hours,” and both “[t]he early morning hours earlier in *335 the day” and hours “in the afternoon ... following work” can be helpful for some voters who “have the opportunity” to vote at those times. A3765 (Lennard Dep.); see A9095 (Rebuttal Decl. of Prof. Gronke) (“Certainly more hours of voting per day can benefit voters, and there are studies ... showing the positive benefits of expanded hours outside of the normal business day.”); A10511 (testimony from an election official in a non-covered county that, “when the polls open [at] 7 a.m.,” there will generally “be lines that have already formed” with voters who are “waiting for the precinct to open”). 42
Nor is the increase in weekday early voting hours the only ameliorative factor we must take into account. As we have discussed, the new early voting statute requires the covered counties to offer early voting for at least six hours on the Sunday nine days before Election Day. See Fla. Stat. § 101.657 (d) (2011). Although the benchmark statute permitted counties to offer early voting on that Sunday, as well as on the Sunday immediately before Election Day, see Fla. Stat. § 101.657 (d) (2010), none of the covered counties ever did so. Hence, the benchmark practice was no Sunday voting. See Riley, 553 U.S. at 421 , 128 S.Ct. 1970 ; City of Lockhart, 460 U.S. at 132 , 103 S.Ct. 998 . Although the intervenors initially took a contrary position, they acknowledged in a post-argument filing that “[t]he change eliminating the discretion to conduct ‘last Sunday early voting’ is not at issue in the retrogression analysis since the Covered Counties have not conducted early voting on that day.” [134] Defendant-Intervenors’ Supplemental Br. Regarding Preclearance Standards for Enabling Legislation at 2 n.l (emphasis added). 43 Accordingly, the new statute provides at least a net 6-hour increase in Sunday early voting compared to the relevant benchmark. And if the covered counties offer the maximum number of hours of early voting each day, as we assume for purposes of this subpart, the result would be an additional 12 hours of Sunday early voting that were never before offered in those counties.
The addition of Sunday voting is important — as the United States and intervenors themselves emphasized in initially arguing that the relevant benchmark should include the unrealized potential for last-Sunday voting under the prior statute. As the defendants stressed, many African-American churches organize “souls to the polls” drives to transport their congregants to early voting sites on that Sunday, see A9109 (Joyner Decl.); A9193-94 (Decl. of Rev. Thomas Scott), and that Sunday is therefore disproportionately used by African-American voters in jurisdictions that have early voting on that day, see A10098 (Am. Expert Report of Prof. Gronke); see also DOJ Br. 51; A9225 (Decl. of Rev. Charles McKenzie). But while the defendants have argued that it is the Sunday immediately before Election Day that is particularly important, there is evidence in the record to suggest that opening the polls on the previous Sunday would also facilitate voting by African-American voters. For example, even Senator Joyner, *336 who opposed the reduction in early voting days, testified that if HB 1355 “were precleared and were put into effect in Hills-borough County,” she would “[absolutely ... expect the predominantly African-American churches in Hillsborough County to organize Souls to the Polls drives” on that day. A9814 (Joyner Dep.). Likewise, Professor Gronke agreed that he has “no reason to believe that [the additional Sunday] would not be used” by African-American voters in such “souls to the polls” drives. A10012-13 (De Bene Esse Dep. of Prof. Gronke). As a result, we can expect that there will be at least some ameliorative effects from the new law’s addition of the mandatory Sunday.
We further note that, for a county that offers the maximum 12 hours per day, the new law not only adds the opportunity to vote for 12 hours on the Sunday that falls two weekends before the election, but also increases the overall number of weekend hours on both that weekend and the last weekend before the election. Under the benchmark practice, the covered counties offered early voting for 8 hours on each Saturday, and not at all on Sunday, yielding 16 total weekend hours of early voting. But if a county offers the maximum hours under the new statute, it will provide early voting for 12 hours on each weekend day (i.e., on both Saturday and Sunday) approximately one week before the election, and for 12 hours on the last Saturday before the election. The total would then be 36 weekend hours of early voting (12 hours on each of 3 weekend days), for a net gain of 20 more weekend hours of early voting than under the benchmark. 44
Like the added Sunday, those additional weekend hours of early voting are significant. Florida election officials have testified, based on their experience, that expanded weekend hours would provide increased accessibility for many minority voters. See, e.g., A3447-48, 3450 (Edwards Dep.); A3611-12, 3770, 3846-47 (Lennard Dep.); A10488 (Dep. of Ion Sancho, Leon County SOE). Florida legislators, including several of the legislators who opposed the early voting changes and who are now intervenors in this action, have concurred in that assessment. See A9801 (Joyner Dep.); A1025455 (Cruz Dep.). And even the intervenors’ expert, Professor Gronke, concedes that expanded early voting hours can be an added convenience for many voters. See A6161 (Gronke Dep.); A9095 (Rebuttal Deck of Prof. Gronke); A10015 (De Bene Esse Dep. of Prof. Gronke); see also A10187 (EVIC blog post by Professor Gronke, stating that “weekend early voting” is “a potential inconvenience for officials to be sure, but one which citizens will find very helpful”).
In sum, the record evidence persuades us that, if the covered counties offer the maximum available early voting hours each day on a standard 7 a.m. to 7 p.m. schedule, the negative effect of reducing the number of days from 12 to 8 would likely be offset by the ameliorative effects of adding non-working weekday hours, a Sunday, and additional weekend hours. 45
*337 Moreover, many of the concerns that we discussed in Part II.B.2 in connection with a contraction of the early voting period to only 48 total hours are not likely to materialize (certainly not to the same extent) if the full 96 hours of early voting are maintained on a standard 7 a.m. to 7 p.m. schedule. For example, although representatives and volunteers from minority voting rights groups have testified that “a two-week period has ... been essential to coordinating the logistics of GOTV efforts in the African American community,” A9237 (Coffee Deck); see A9227 (McKenzie Deck), the record evidence suggests that GOTV groups could adjust to a redistribution of the total 96 hours over a different number of days, including weekend days and a “souls-to-the-polls” Sunday. Indeed, one of the central concerns expressed by such groups is that minority voters “frequently contend with issues such as lack of transportation or inflexible work and family schedules, which make it difficult to reach the polls on Election Day.” A9143 (Slater Deck). Expanding convenient non-working weekday and weekend voting hours should therefore help third-party efforts to provide transportation to the polls for such voters.
The same is true of concerns regarding overcrowding and confusion at polling places on the remaining early voting days (and Election Day) that could result from reducing the total number of early voting days. This problem should be alleviated, if not entirely eliminated, by the simultaneous expansion of early voting hours to 12 hours per day on a 7 a.m. to 7 p.m. schedule. Indeed, election officials have testified that they believe that, “by expanding the hours,” they would be able to “accommodate [the] early voters” who may have been displaced by the elimination of the first five days of the old early voting period. A3859 (Lennard Dep.). 46 For the first time, early voters in the five covered counties would have the benefit of an early voting period capturing the morning and evening hours on both ends of the standard 9 a.m. to 5 p.m. workday.
For the foregoing reasons, we conclude that if Florida and the covered counties were to submit a preclearance plan that offered early voting for 12 hours per day, from 7 a.m. to 7 p.m. over an 8-day early voting period, including one previously-unavailable Sunday, they would likely satisfy their burden of proving that the overall effect of the early voting changes would be nonretrogressive with respect to minority voters. 47 We do not, however, reach any conclusions about other permutations of early voting hours that the covered counties might offer. Because at this point we do not know how many early voting hours the covered counties will offer or which specific hours they will provide, and because we find that retrogression may well follow from the statute as written, we cannot now conclude that Florida has met its burden of demonstrating that its statewide early voting changes will have a nonretrogressive effect in the covered counties.
C. Inter-County Mover Changes
We next address the changes in the procedures for so-called “inter-county movers” — registered voters who move *338 from one Florida county to another, fail to notify the supervisor of elections of their address change in advance of the election, and then seek to vote in their new precinct. The relevant HB 1355 amendment provides that, with the exception of active uniformed services voters and members of their families, a registered voter “whose change of address is from outside the county [but inside the state] may not change his or her legal residence at the polling place and vote a regular ballot,” Fla. Stat. § 101.045 (2)(b) (2011), as he could under previous law, see Fla. Stat. § 101.045 (2)(b) (2010). Instead, “such elector is entitled to vote a provisional ballot” after completing a “Provisional Ballot Voter’s Certificate and Affirmation.” Fla. Stat. § 101.045 (2)(b) (2011). Under Florida law, such ballots “shall be counted unless the canvassing board determines by a preponderance of the evidence that the person was not entitled to vote.” Id. § 101.048(2)(a) (emphasis added). As we explain below, Florida represents that this means that in the event that a canvassing board reaches the end of the canvassing period and has not reviewed some subset of the provisional ballots cast, then the unreviewed ballots must be counted as eligible ballots because the canvassing board would not have “determinefd] by a preponderance of the evidence that the person[s] w[ere] not entitled to vote.” Id.
1. We again begin by finding that the inter-county mover changes will disproportionately affect minority voters, because minority voters have been disproportionately more likely to use the benchmark procedures that allowed voters to make inter-county address changes at the polls and then cast a regular ballot. See A8901 (Supplemental Decl. of Dr. Stewart) (“[Minority voters are more likely to avail themselves of the law that is still in effect in the five covered counties, which allows registered voters who have moved between counties to simultaneously change their address and vote a regular ballot in their new home county.”). In the most recent elections in Florida’s covered counties for which there is data, the voters who moved inter-county and updated their addresses on or about Election Day were disproportionately members of a minority group. Id. at A8907-09 (Attach. 5). More specifically, African-American and Hispanic voters were statistically more likely than the average voter to be inter-county movers in the 2008 and 2010 elections, both on Election Day and during the early voting period, while white voters were statistically less likely to be inter-county movers. M 48
*339 For example, in the 2008 general election, African-American voters comprised only 13.3% of the total non-moving voters in Florida’s covered counties, but made up 19.3% of all inter-county movers in those counties. Id. at A8908. Hispanic voters comprised only 10.1% of the non-movers, but accounted for 14.5% of the inter-county movers. Id. Meanwhile, white voters made up 71.3% of the non-movers, but only 58.8% of the inter-county movers. Id. These and other data points allowed the United States’s expert witness, Dr. Charles Stewart, to conclude that “[i]n every single calculation [in his supplemental report], the percentage of black and Hispanic voters among the ‘movers’ is greater than the percentage of black and Hispanic voters among the non-moving voters who used that mode [ie., early voting or Election Day voting].” Id. at A8899. By contrast, “[i]n every calculation except one [the 2010 primary], the percentage of white voters among the movers is less than the percentage of white voters among the non-moving voters who used that mode.” Id.; see also A10667 (De Bene Esse Dep. of Dr. Stewart) (“It’s clear to me that blacks, whites, and Hispanics avail themselves of these procedures at different rates than the underlying voting population.”). 49
Indeed, even Florida’s expert witness, Professor Hood, recognized that in the elections that he examined, the minority rates of inter-county movers in the covered counties were proportionately higher than the white rates. Professor Hood’s data set is less complete than Dr. Stewart’s, because he examined data from only three of Florida’s five covered counties — excluding Hillsborough County, the most populous of the five — and two of those counties claimed not to have any inter-county movers in the election years that he analyzed. See A9073 (Expert Report of Prof. Hood); see also A5954 (Hood Dep.) (admitting that his data set is only “[a] quarter complete”). Nonetheless, Professor Hood conceded that in each of the elections he examined, the inter-county mover rate of “some minority group [whether African-American or Hispanic] is higher than the white rate and in most of [the elections] all of the minority rates are higher than the white rate.” A5958-59 (Hood Dep.) (emphasis added). 50
The bottom line is that, on average, minority voters in Florida’s covered counties are approximately twice as likely as white voters in those same counties to move inter-county and seek to update their addresses at the polls. From 2008 through 2010, 0.44% of African-American voters and 0.50% of Hispanic voters in the covered counties were inter-county movers, compared to only 0.21% of white voters. See Findings of Fact ¶¶ 85-88. Ac *340 cordingly, if the inter-county mover changes took effect in the covered counties, African-American and Hispanic voters would be disproportionately affected.
Florida correctly points out that, even if minorities are disproportionately affected, the total number of inter-county movers has historically been quite small, and the number who are minorities is even smaller. Indeed, the high-water mark for inter-county movers was the 2008 general election, when 2,240 voters (approximately 750 of whom were minorities) updated their addresses at the polls in the covered counties. See A8908 (Supplemental Decl. of Dr. Stewart). This is out of a total of over 530,400 voters who voted in that election in the covered counties. See id. But while the number of affected voters will have an impact on the burden analysis we conduct in the following section, we note again that a voting change with a retrogressive effect does not warrant preclearance merely because it affects a small number of voters. See supra Part II.A.4.
2. To be retrogressive, however, a ballot access change must not only affect proportionally more minority voters; it must also impose a burden material enough that it will likely cause some reasonable minority voters not to exercise the franchise. Accordingly, we must evaluate the burdens imposed by the inter-county mover changes to determine whether they are likely to dissuade reasonable minority voters in Florida’s five covered counties from casting a ballot, or are likely to result in those minority voters’ ballots not being properly tabulated. Although evidence has been submitted on both sides of those questions, we are persuaded by a preponderance of the evidence that the inter-county mover changes will not have impermissibly retrogressive effects on minority voters. This conclusion is based on the understanding, however, that consistent with the language of Florida statutory law and the interpretation the State has proffered to the court in this case, in the event that a canvassing board reaches the end of the canvassing period and has not reviewed some subset of the provisional ballots cast, the unreviewed ballots shall be counted as eligible ballots because the canvassing board would not have “determine[d] by a preponderance of the evidence that the person[s] w[ere] not entitled to vote.” Fla. Stat. § 101.048 (2)(a) (2011).
First, the record establishes that compliance with the new inter-county mover paperwork requirements will not take materially longer than compliance with the prior requirements. Under the benchmark statute, a voter who moved to another county without notifying the relevant election official and then sought to vote in his or her new county of residence was required to complete a change of address affirmation in “substantially the [same] form” set forth in Fla. Stat. § 101.045 (2)(a) (2010), which was as follows:
Under penalties for false swearing, I, (Name of voter), swear (or affirm) that the former address of my legal residence was (Address of legal residence) in the municipality of —, in-County, Florida, and I was registered to vote in the • — • precinct of-County, Florida; that I have not voted in the precinct of my former registration in this election; that I now reside at (Address of legal residence) in the Municipality of —, in - County, Florida, and am therefore eligible to vote in the — precinct of - County, Florida; and I further swear (or affirm) that I am otherwise legally registered and entitled to vote.
_(Signature of voter whose address of legal residence has changed).
*341 Fla. Stat. § 101.045 (2)(a); see, e.g., [129] Fla. Notice of Filing of Documents Re: Inter-County Address Changes at the Polls, Ex. A (Collier County change of address affirmation form). 51 After completing the form, the voter was then entitled to cast a regular ballot.
Under the new law, inter-county movers must instead complete a “Provisional Ballot Voter’s Certifícate and Affirmation,” as set forth in Fla. Stat. § 101.048 (3) (2011). The new form must be “in substantially the [same] form” as the following:
I do solemnly swear (or affirm) that my name is-; that my date of birth is ■-•; that I am registered and qualified to vote in-County, Florida; that I am registered in the --- Party; that I am a qualified voter of the county; and that I have not voted in this election. I understand that if I commit any fraud in connection with voting, vote a fraudulent ballot, or vote more than once in an election, I can be convicted of a felony of the third degree and fined up to $5,000 and/or imprisoned for up to 5 years.
(Signature of Voter)
(Current Residence Address)
(Current Mailing Address)
(City, State, Zip Code)
(Driver’s License Number or Last Four Digits of Social Security Number)
Fla. Stat. § 101.048 (3) (2011); see, e.g., [129] Fla. Notice of Filing of Documents Re: Inter-County Address Changes at the Polls, Ex. D (Collier County Provisional Ballot Certificate and Affirmation). 52 After completing the affirmation, the inter-county mover is then entitled to cast a provisional ballot. Fla. Stat. § 101.048 (1)-(2) (2011).
As a side-by-side comparison demonstrates, the form required under the new law requests essentially the same information as the prior form, including the voter’s name, current and prior address of residence, and an affirmation that the voter is legally registered and qualified to vote. 53 See A4068 (Dep. of Maria Matthews, Assistant Gen. Counsel, Fla. Dep’t of State) (“[R]eally [inter-county movers are] not filling out ... any more information or any additional documentation than they would have if they had moved in from another county previously.”). Although under the prior procedure the inter-county mover would then cast a regular ballot, while now the voter must cast a provisional ballot, the latter is in all physical respects identical to a regular ballot. Fla. Stat. § 97.021 (29) (defining “provisional ballot” to simply mean “a conditional ballot”); Fla. Admin. R. 1 S-2.037(2)-(3) (providing guidelines for provisional ballot certificates and affirmations); see Oral Arg. Tr. 237:19-238:24 (representation by counsel for Florida that provisional ballots look the same as regular ballots, and that “[a]ll Florida voters vote by paper ballot”). The only difference — from a procedural point of view (but see further discussion infra) — is that instead of being fed into a machine for tabulation, a provisional ballot is placed into a secrecy envelope, which is then sealed in a provisional ballot envel *342 ope. Fla. Stat. § 101.048 (1)-(2) (2011). The ballot is then deposited in a ballot box, and the secrecy envelope remains sealed until the county canvassing board reviews the certificate and affirmation to determine whether the ballot may be tabulated. See id.
On the basis of the foregoing, we are persuaded that the paperwork associated with these changes will not be materially more burdensome for inter-county movers. Election officials in the covered counties have estimated that the new provisional voter’s certificate and affirmation should not take much longer to complete than the old affirmation of change of address. See, e.g., A3938 (Ussery Dep.) (“It’s the same ballot they would have received.... I don’t really see where it would be an obstacle [to voting].”). 54 At most, the total paperwork may take a few additional minutes because the voter may have to include some of the same information on the provisional ballot envelope. See Oral Arg. Tr. 237:11-237:16. The voter may also have to wait while an election official reviews and signs his or her affirmation and/or provisional envelope. See Fla. Stat. § 101.048 (3) (2011). But we do not see how these minor burdens could deter a reasonable inter-county mover from voting. Moreover, some of the covered counties have sought to minimize even these burdens by affixing the Provisional Ballot Voter’s Certificate and Affirmation to the outside of the provisional envelope, or even printing the certificate and affirmation directly onto the provisional envelope itself. See, e.g., A7395 (Hillsborough County Provisional Ballot Quick Reference Guide).
Second, we must consider whether, although the paperwork is not noticeably d

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8701439. Public record. Not legal advice.