# Effie Stewart v. J. Kenneth Blackwell

> Court of Appeals for the Sixth Circuit · April 21, 2006 · 444 F.3d 843

URL: https://www.frixlaw.com/law-library/cases/9498859

## Case

- **Full name:** Effie STEWART, Et Al., Plaintiffs-Appellants, v. J. Kenneth BLACKWELL, Et Al., Defendants-Appellees
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** April 21, 2006
- **Citations:** 444 F.3d 843; 2006 U.S. App. LEXIS 10027; 2006 WL 1042326
- **Precedential status:** Published
- **Opinion:** Dissent by Gilman
- **Judges:** Cole, Gilman, Martin
- **Cited by:** 24 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Vacated by Effie Stewart v. J. Kenneth Blackwell, 473 F.3d 692 (2007).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9498859

## How later opinions describe it (automated extraction)

- finding African-American and Caucasian voters residing in four Ohio counties had standing to challenge the use of punch-card ballots in the counties where they cast their votes because other counties in Ohio utilized more reliable voting methods and the plaintiffs submitted a …
- applying strict scrutiny where plaintiffs “alleged vote dilution due to disparate use of certain voting technologies”

## Opinion text

RONALD LEE GILMAN, Circuit Judge,
dissenting.
The majority today imposes by judicial decree important changes to the Ohio electoral system, doing so largely in reliance on the Supreme Court’s murky decision in Bush v. Gore, 531 U.S. 98 , 121 S.Ct. 525 , 148 L.Ed.2d 388 (2000) (per curiam), a vacated Ninth Circuit panel opinion in a California recall-election dispute, and two district court cases that never reached a final judgment on the merits. In my view, these sources cannot bear the weight that the majority places on them, and should *881 not form the basis for subjecting an indeterminate number of state and local election decisions to the strictest level of constitutional scrutiny.
I would take a more cautious approach, one that recognizes the primacy of the executive and legislative branches in the electoral process and the significant costs that the majority’s holding will place on state and local governments, the entities that are charged with most aspects of election administration. Although I agree with the majority that the plaintiffs have standing and that the case is not moot, I cannot join the majority’s analysis of the equal protection and Voting Rights Act challenges brought by the plaintiffs, or its cursory reversal of the district court’s denial of class certification. Accordingly, I respectfully dissent.
My analysis of the equal protection question will proceed in four steps. I will first explain why I believe that the Supreme Court voting-rights precedents cited by the majority are distinguishable from the present case and do not establish, as the majority asserts, that strict scrutiny is the proper constitutional standard of review. The second and third parts of my analysis question the precedential value of Bush v. Gore and the other authorities on which the majority relies, demonstrating why an expansive reading of those authorities threatens to constitutionalize the procedures and mechanisms used to cast a vote under the guise of advancing still unsettled notions of equality. Finally, I will explore the practical effect of the majority’s holding in the wake of the Help America Vote Act (HAVA) and Ohio’s promise to comply with the terms of HAVA.
I. CONSTITUTIONAL STANDARD OF REVIEW
A reader unfamiliar with the Supreme Court’s voting-rights precedents might conclude after reading the majority opinion that federal courts have long dealt with challenges analogous to the one made in the present case, and that strict scrutiny has been universally recognized as the appropriate standard of review. The majority’s lengthy exposition of the fundamental nature of the right to vote cites many cases purportedly to that effect, taking quotations out of their factual and legal context. A closer examination of those cases, however, reveals that the challenges upheld in them were significantly different from the one before us in the present case, and that the appropriate standard of review in voting-rights cases is far from settled.
A. Voting-rights precedents
In Gray v. Sanders, 372 U.S. 368 , 83 S.Ct. 801 , 9 L.Ed.2d 821 (1963), for example, the Supreme Court invalidated Georgia’s “county unit system” for counting votes in party primaries that were held to nominate candidates for the United States Senate and several state offices. Under the original county unit system, a resident in the least populous county in the state “had an influence in the nomination of candidates equivalent to 99 residents” of the state’s most populous county. Id. at 371 , 83 S.Ct. 801 . The state amended the system to increase the influence of the more populous counties, but the district court still found that “the vote of each citizen counts for less and less as the population of the county of his residence increases.” Id. at 372-73 , 83 S.Ct. 801 (citation omitted). Articulating its famous “one person, one vote” standard, id. at 381 , 83 S.Ct. 801 , the Court held that the county-unit system violated the Equal Protection Clause because it gave “one person ... twice or 10 times the voting power of another person in a statewide election *882 merely because he lives in a rural area or because he lives in the smallest rural county[.]” Id. at 379 , 83 S.Ct. 801 . The Court, .without announcing a standard of review, explained that the constitutional infirmity in the Georgia system inhered in the system’s failure to provide “equality of voting power.” Id. at 381 , 83 S.Ct. 801 .
Wesberry v. Sanders, 376 U.S. 1 , 84 S.Ct. 526 , 11 L.Ed.2d 481 (1964), also cited by the majority, is not even an equal protection case. The Wesberry Court did not hold, as the majority states, that “Equal Protection requires substantial equality of population amongst the districts established by state legislatures for the election of members to the United States House of Representatives.” Maj. Op. at 857 (emphasis added). To the contrary, the Court relied exclusively on two sections found in Article I of the Constitution, stating explicitly that it did not need to “reach the arguments that the Georgia statute violates the Due Process, Equal Protection and Privileges and Immunities Clauses of the Fourteenth Amendment.” 376 U.S. at 8 , 84 S.Ct. 526 n. 10 ; see also Daniel Hays Lowenstein & Richard L. Hasen, Election Law: Cases and Materials 113 (2d ed. 2001) (“Wesberry was not decided under the Equal Protection Clause but under Article I, §§ 2 and 4 of the Constitution, and was thus applicable only to the United States House of Representatives.”). Article I, §§ 2 and 4 of the Constitution, the Court held, barred states from drawing congressional districts in which “a vote is worth more in one district than in another.” Id. at 8, 84 S.Ct. 526 . Because it never addressed the plaintiffs equal protection challenge, the Court did not need to — and did not — articulate the appropriate standard of review.
The pathbreaking decision in Reynolds v. Sims, 377 U.S. 533 , 84 S.Ct. 1362 , 12 L.Ed.2d 506 (1964), marked the first time that the Court announced a standard of review similar to the strict-scrutiny standard currently applied in reviewing laws that discriminate against suspect classes or infringe on certain constitutionally protected rights. See id. at 562 , 84 S.Ct. 1362 (“[A]ny alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.”). Again, however, the Court announced this standard in a case that dealt with the “weighting of votes;” specifically, unequally populated state legislative districts. See Lowenstein & Hasen, supra, at 105, 114; Reynolds, 377 U.S. at 563 , 84 S.Ct. 1362 (“Over-weighting and overvaluation of the votes of those living here has the certain effect of dilution and undervaluation of the votes of those living there.”). Although it invalidated Alabama’s legislative apportionment plan and held that both houses in a bicameral state legislature must be apportioned on a “substantially equal population basis,” the Court did not do so on the ground that the law was not narrowly tailored to further a compelling governmental interest, see, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 235 , 115 S.Ct. 2097 , 132 L.Ed.2d 158 (1995), but instead because the existing apportionment plan violated the “one person, one vote” principle — that “the weight of a citizen’s vote cannot be made to depend on where he lives.” Reynolds, 377 U.S. at 567 , 84 S.Ct. 1362 (emphasis added).
The two other cases subjecting state voting practices to strict scrutiny cited by the majority are likewise inapposite. In Harper v. Virginia Board of Elections, 383 U.S. 663, 668 , 86 S.Ct. 1079 , 16 L.Ed.2d 169 (1966), the Court invalidated the applicable laws of the four remaining states that charged a poll tax to vote in state elections. The Court applied strict scrutiny in Harper , citing Reynolds for the proposition that, “where fundamental rights and liberties are asserted under the *883 Equal Protection Clause, classifications [that] might invade or restrain them must be closely scrutinized and carefully confined.” Id. at 670 , 86 S.Ct. 1079 . Virginia’s poll tax, the Court reasoned, determined the qualifications of voters on the basis of wealth, a ground that is “traditionally disfavored,” id. at 668 , 86 S.Ct. 1079 , and was therefore unconstitutional.
The second of the two cases is Dunn v. Blumstein, 405 U.S. 330, 334 , 92 S.Ct. 995 , 31 L.Ed.2d 274 (1972), where the Court struck down Tennessee’s requirement that, in order to qualify as a registered voter, a person must have resided in the state for at least one year and in the county for at least three months. Strict scrutiny was the appropriate standard • of review, the Court held, because the durational-residency requirement affected two fundamental rights — the right to vote and the right to travel. See id. at 338 , 92 S.Ct. 995 (explaining that strict scrutiny applied, despite an earlier durational-residency-requirement case using a less stringent standard of review, because the Tennessee law “penaliz[ed]” only people who had recently exercised their right to travel). Dunn is therefore unique because the Court faced a state law that impinged on two fundamental rights protected by the Fourteenth Amendment. Indeed, courts since Dunn have emphasized the importance of both the Tennessee law’s impact on two constitutionally protected activities and Dunn’s status as a voter-qualification precedent. See, e.g., Donatelli v. Mitchell, 2 F.3d 508, 515 (3d Cir.1993) (explaining that the Court in Dunn reviewed a law that both denied access to the ballot and “directly burdened citizens’ fundamental constitutional right to travel”); Greidinger v. Davis, 988 F.2d 1344, 1349 (4th Cir.1993) (classifying Dunn as a case “involving voter qualifications and ballot access”).
Stated simply, none of these Supreme Court precedents resembles the claim made by the plaintiffs in the present case. These plaintiffs do not allege that Ohio has imposed an impermissible voter-qualification requirement, as in Harper and Dunn . Nor do they argue that the votes in Ohio are “weighted” differently — that is, that a properly marked ballot “is worth more in one district than in another.” Wesberry, 376 U.S. at 8 , 84 S.Ct. 526 ; see also Reynolds, 377 U.S. at 563 , 84 S.Ct. 1362 . Instead, they maintain that voters in counties that employ inferior voting equipment “are subjected to a significantly greater risk that their votes will not be counted.” In other words, properly marked ballots are counted and accorded the same value everywhere in the state, but voters in some counties have a reduced chance of turning in a properly marked ballot that will actually be counted because certain voting methods do not catch the voters’ own inadvertent mistakes.
This challenge to the nuts-and-bolts of election administration, regardless of its merit, cannot be equated with either discriminatory voter-qualification requirements or generally applicable state laws that deny “equality of voting power,” Gray, 372 U.S. at 381 , 83 S.Ct. 801 , which are the principal types of state actions that the Supreme Court has subjected to strict scrutiny. See generally Richard L. Hasen, Bush v. Gore and the Future of Equal Protection Law in Elections, 29 Fla. St. U.L.Rev. 377, 393 (2001) (explaining that the Warren Court precedents govern only the equal opportunity to vote and the equal weighting of votes, not “equality in the procedures and mechanisms used for voting”).
B. Rational basis is the proper standard of review
The Supreme Court has never adhered to the view that all legislation or practices *884 that affect the right to vote must be subjected to strict scrutiny. See Greidinger, 988 F.2d at 1350 (collecting cases in which the Supreme Court has applied rational-basis scrutiny in upholding the denial of absentee ballots to pretrial detainees and in sustaining a state requirement that persons seeking to vote in a primary must register with a political party a specified number of days before a general election). As the First Circuit succinctly explained, “[t]he Supreme Court has eschewed a hard-and-fast rule, and instead has adopted a flexible framework for testing the validity of election regulations.” Werme v. Merrill, 84 F.3d 479, 483 (1st Cir.1996). That “flexible framework” was most recently articulated by the Court in Burdick v. Takushi, 504 U.S. 428 , 112 S.Ct. 2059 , 119 L.Ed.2d 245 (1992), a case that the majority attempts to limit to the specific setting of political candidates’ access to the ballot. Maj. Op. at 859-63. I believe, however, that Burdick sets forth a general test for evaluating challenges to state voting laws and practices under the Fourteenth Amendment, and therefore cannot be so easily “dismiss[ed].” Maj. Op. at 861.
The Supreme Court in Burdick began by observing that “[ejection laws will invariably impose some burden upon individual voters.” Burdick, 504 U.S. at 433 , 112 S.Ct. 2059 ; see also Harper, 383 U.S. at 673 , 86 S.Ct. 1079 (Black, J., dissenting) (“All voting laws treat some persons differently from others in some respects.”). Subjecting “every voting regulation to strict scrutiny,” the Court warned, “would tie the hands of States seeking to assure that elections are operated equitably and efficiently.” Burdick, 504 U.S. at 433 , 112 S.Ct. 2059 . Courts facing challenges to state election laws or practices should therefore start by “weigh[ing] the character and magnitude of the asserted injury” to voting rights against the state’s articulated interests, “taking into consideration the extent to which those interests make it necessary to burden the [voter’s] rights.” Id. at 434 , 112 S.Ct. 2059 (citations and quotation marks omitted). The Court continued:
Under this standard, the rigorousness of [the judicial] inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. Thus, ... when those rights are subjected to severe restrictions, the regulation must be narrowly drawn to advance a state interest of compelling importance. But when a state election law provision imposes only reasonable, nondiscriminatory restrictions upon the First and Fourteenth Amendment rights of voters, the State’s important regulatory interests are generally sufficient to justify the restrictions.
Id. (citations and quotation marks omitted). In other words, only state laws and regulations that impose “severe restrictions” on the right to vote should be subjected to strict scrutiny.
Federal courts applying the Burdick framework have evaluated challenges to various state voting regulations under a rational-basis standard of review. See, e.g., Werme, 84 F.3d at 485-86 (upholding under rational-basis review a New Hampshire law that prevented a member of the Libertarian Party from serving as a ballot clerk on Election Day); Donatelli, 2 F.3d at 514-15 (upholding under rational-basis review a state reapportionment plan that temporarily assigned a state senator to a district that had not elected him); see also id. at 515-16 (collecting court-of-appeals and district-court cases that reviewed claims of “temporary disenfranchisement” due to reapportionment under a rational-basis standard). These cases from our *885 sister circuits serve as reminder that, the tone of the majority opinion notwithstanding, many state and local voting regulations are evaluated under the rational-basis standard of review.
I believe that this court’s decision in Mixon v. Ohio, 193 F.3d 389 (6th Cir.1999), establishes a framework consistent with the one articulated by the Supreme Court in Burdick . In Mixon , this court held that state legislation that “grants the right to vote to some residents while denying the vote to others” is subject to strict scrutiny, whereas legislation that “does not infringe on the right to vote” is examined “under the rational basis standard.” Id. at 402 . Two aspects of this statement stand out. The first is that Mixon might not readily apply to the present case because the plaintiffs have not challenged any legislation that “grants the right to vote to some while denying the vote to others.” See id. Instead, they are challenging “electoral practices,” none of which purport to grant the right to vote to anyone. This court has not yet decided whether the Mixon analysis applies to state practices other than legislation.
Assuming that Mixon does apply, however, there is a second noteworthy aspect of the standard enunciated in that case— namely, that this court drew a distinction between state laws and regulations that “infringe on the right to vote” and those that do not. Id. This standard approximates the line drawn by the Supreme Court in Burdick , where the Court emphasized the difference between laws that severely restrict voting rights and those that “impose[ ] only reasonable, nondiscriminatory restrictions” on such rights. Burdick, 504 U.S. at 434 , 112 S.Ct. 2059 . If we are to harmonize Mixon and Burdick , as I think we must, then we should review the challenged voting practices under the rational-basis standard because those practices do not “severely] restrict[ ]” the plaintiffs’ right to vote. See id.
Also consistent with Burdick is the Ninth Circuit’s decision in Weber v. Shelley, 347 F.3d 1101 (9th Cir.2003), a case relied on by the district court below and one that I believe is directly on point. See Stewart v. Blackwell, 356 F.Supp.2d 791, 800 (S.D.Ohio 2004). In Weber, a voter brought an Equal Protection challenge to a California county’s decision to replace paper ballots with an electronic-voting system. 347 F.3d at 1102. The computerized system, the voter maintained, was susceptible to manipulation and potential fraud because it lacked a paper audit trail. Id. at 1104-1105. Applying the Bwrdick framework, the Ninth Circuit held that the “use of paperless, touchscreen voting systems [did not] severely restrietf ] the right to vote,” and that the voting procedure was therefore subject only to rational-basis review. Id. at 1106. Because the electronic-voting machines constituted a reasonable method of ameliorating the problems inherent in paper ballots, the change in voting procedures was rationally related to the state’s interest in “ensuring that elections are fair and orderly.” Id.; see also id. at 1107 (opining that the state and the county had “made a reasonable, politically neutral and non-discriminatory choice to certify [and to use] touchscreen systems as an alternative to paper ballots”); accord Am. Ass’n of People with Disabilities v. Shelley, 324 F.Supp.2d 1120, 1127 (C.D.Cal.2004) (reviewing the Calfiornia Secretary of State’s decision to decertify Direct Recording Electronic (DRE) voting machines under the rational-basis standard of review).
Weber is significant for a number of reasons. First, when faced with an Equal Protection challenge to the type of voting technology certified by the California Secretary of State and utilized by the county, *886 the Ninth Circuit found the appropriate standard of review in Burdick — not in Reynolds, Harper, Dunn, or any other pre-Burdick precedents. See Weber, 347 F.3d at 1106. The second reason is that, in applying Burdick , the Ninth Circuit held that the increased potential for voter fraud with the new voting technology did not constitute a “severe restriction” on the right to vote, so that the decision to implement such electoral changes was subject only to rational-basis review. Id.
Finally, and perhaps most importantly, Weber is the closest on its facts to the challenge levied by the plaintiffs in the present case. Indeed, Weber is the exact converse of the present case. Whereas the plaintiffs here decry the refusal of the counties to utilize improved voting technologies, the voter in Weber complained precisely because her county had abandoned traditional paper ballots in favor of the newly available technology. The contrast between the two cases epitomizes the predicament in which election officials find themselves — damned if they upgrade voting machines, damned if they do not — and further supports adopting a constitutional standard of review that affords state and local officials the flexibility necessary to regulate an election system constantly in flux.
I cannot help but note, however, the majority’s insistence that the result here would be the same even if it applied rational-basis scrutiny. Maj. Op. at 872. The majority makes this unsupported assertion despite having chided the district court for doing the same thing — that is, summarily concluding that the result would be the same regardless of the appropriate standard of review. Maj. Op. at 852-53. If the state’s proffered justifications for employing certain voting methods were truly as flimsy as the majority portrays them, then the majority would have no need to discuss at length why the state’s practices must be judged under the strict-scrutiny standard.
The proper standard of review, in my opinion, is critical to the judicial inquiry in this case. Because I believe that the Supreme Court’s decision in Burdick has supplanted the factually and legally distinguishable precedents on which the majority relies, and that the use of different types of voting technologies does not constitute a severe restriction on the right to vote, I would evaluate the challenged voting practices under the rational-basis standard of review. I reach this conclusion notwithstanding the Court’s post -Burdick opinion in Bush v. Gore, 531 U.S. 98 , 121 S.Ct. 525 , 148 L.Ed.2d 388 (2000) (per curiam), a case whose precedential value, as I will explain, is at best questionable.
II. EQUAL PROTECTION ANALYSIS AND BUSH Y. GORE
As I have explained above, neither the venerable Warren Court precedents nor current Supreme Court voting-rights cases support either the majority’s decision to subject the challenged voting practices to strict scrutiny or the majority’s conclusion that those practices are unconstitutional. What actually provides the analytical basis for the majority opinion, then, is the Supreme Court’s decision in Bush v. Gore and a series of lower-court cases that have purported to adopt the reasoning of that decision. For the reasons ably articulated by a leading election-law expert — reasons to which I will add a few thoughts of my own — I believe that we should heed the Supreme Court’s own warning and limit the reach of Bush v. Gore to the peculiar and extraordinary facts of that case. See Hasen, Bush v. Gore and the Future of Equal Protection Law in Elections, 29 Fla. St. U.L.Rev. at 379 (“Language in the per curiam opinion limits [the holding] to the facts of the case, or, at most, to cases *887 where jurisdiction-wide recounts are ordered.”). The majority has chosen a different path, one that unjustifiably expands Bush v. Gore into a landmark precedent designed to fundamentally transform federal election law.
A. Bush v. Gore should not be given an expansive reading
Professor Hasen summarized his three “reasons for doubting Bush v. Gore’s precedential value” as follows:
[T]he limiting language in the opinion, the lack of seriousness with which the Court undertook its own analysis, and the inconsistency with other jurisprudence by this majority of Justices all point in the direction of assuming that Bush v. Gore is not good precedent for an expansive reading of equal protection law in elections.
Id. at 391. I will focus on the first two of these reasons. In its per curiam opinion, the Court majority cautioned that its analysis was “limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” Bush v. Gore, 531 U.S. at 109 , 121 S.Ct. 525 . The Court elaborated as follows:
The question before [us] is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. Instead, we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards. When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied.
Id.; see also id. at 134, 121 S.Ct. 525 (Souter, J., dissenting) (“It is true that the Equal Protection Clause does not forbid the use of a variety of voting mechanisms within a jurisdiction, even though different mechanisms will have different levels of effectiveness in recording voters’ intentions[.]”); Vikram David Amar, Adventures in Direct Democracy: The Top Ten Constitutional Lessons from the California Recall Experience, 92 Cal. L.Rev. 927, 955 (2004) (explaining that the Supreme Court in Bush v. Gore “explicitly disavowed” the notion that “the Equal Protection Clause ... invalidates any statewide election where different kinds of voting machinery throughout the state may lead to nontrivial differential error rates across counties”).
In the present case, of course, no state-court order is at issue, and no governmental entity has ordered a “statewide remedy.” The allegations of these plaintiffs are a far cry from the lack of uniform rules for discerning the meaning of votes already cast, which is what the Court in Bush v. Gore found to be a constitutional violation. See Hasen, 29 Fla. St. U.L.Rev. at 384 (explaining that the Bush v. Gore majority identified the Florida Supreme Court’s failure to formulate uniform rules for determining voter intent as the reason the state court’s recount procedures violated the Equal Protection Clause). These significant differences alone constitute a “legitimate basis [and] principled manner of distinguishing Bush v. Gore.” See Maj. Op. at 875.
Since Professor Hasen’s article, the Supreme Court has had ample opportunity to prove him wrong by explaining, or even citing to, its decision in Bush v. Gore. See, e.g., Clingman v. Beaver, 544 U.S. 581 , 125 S.Ct. 2029 , 161 L.Ed.2d 920 (2005); Vieth v. Jubelirer, 541 U.S. 267 , 124 S.Ct. 1769 , 158 L.Ed.2d 546 (2004); McConnell v. Fed. Election Comm’n, 540 U.S. 93 , 124 S.Ct. 619 , 157 L.Ed.2d 491 (2003); Georgia v. Ashcroft, 539 U.S. 461 , 123 S.Ct. 2498 , 156 *888 L.Ed.2d 428 (2003). But despite taking a steady load of election-related cases, the Court has not cited Bush v. Gore even once — not in a majority opinion, in a concurrence, or in a dissent — in the more than five years since that case was decided. The Court, in other words, has adhered to the limiting language that it conspicuously included in the Bush v. Gore opinion. I believe that we should follow the same path.
Bush v. Gore also provides little support for the majority’s conclusion that a decision by a state or local government to employ certain voting technology must be subjected to strict scrutiny. As Professor Hasen has explained, the Bush v. Gore Court described voting as a fundamental right, but did not “even bother[ ] to undertake” the “hornbook” analysis of asking whether the state’s interest in meeting an impending federal election deadline was “compelling” enough to overcome the fundamental right of voters to have their vote counted. See Hasen, 29 Fla. St. U.L.Rev. at 389. I am not convinced that the Court’s unexplained citation to Reynolds and Harper can be read as displacing the Burdick framework and instructing lower courts to employ strict scrutiny, particularly when the Court itself neither applied that standard nor articulated any standard of review.
An expansive reading of Bush v. Gore portends problems far graver than simply a heightened standard of review. Professor Hasen has convincingly shown that Bush v. Gore applied the Equal Protection Clause to an area of election law entirely different from prior caselaw, but did so without explaining “which kinds of procedures and mechanisms used for voting constitute arbitrary and disparate treatment that value one person’s vote over another” and therefore violate the Constitution. Hasen, 29 Fla. St. U.L.Rev. at 393 (quotation marks omitted). The absence of guidance on these crucial matters leaves lower courts to evaluate for themselves not just the jurisprudential complexities that arise in election law cases of first impression, but also the potential policy implications of extending a Supreme Court precedent whose rationale is far from clear.
Those policy implications, in my view, counsel strongly against extending the rationale of Bush v. Gore to the distinct area of voting technology. Professor Hasen has focused on three significant concerns, beyond the obvious monetary ones, raised by constitutionalizing local governments’ choice of voting mechanisms. The first is that doing so “eases the way for federal court intervention in state and local elections over nuts-and-bolts disputes better left to local authorities.” Id. at 400. Like Judge Posner, I do not think that the Court meant to invite more legal challenges to election methods and results. See Richard A. Posner, Florida 2000: A Legal and Statistical Analysis of the Election Deadlock and the Ensuing Litigation, 2000 Sup.Ct. Rev. 1, 41 (2001) (“The last thing we need is more election litigation.”).
This first concern gives rise to the second one' — namely, that a federal constitutional rule on voting technology “undermines federalism” by imposing a uniform national standard on localities that might otherwise allocate their resources in a different yet equally just manner. See Hasen, 29 Fla. St. U.L.Rev. at 401 {“Bush v. Gore is tantamount to a holding that the purchase of ambulances by a very poor county is less important than a move from punch cards to optical scanners.”).
Professor Hasen’s third concern, however, is what I see as the most important downside to extending Bush v. Gore to voting technology. See id. at 401 (reading Bush v. Gore as creating “disineentive[s] ... for jurisdictions to experiment *889 with new methods of voting”). If the Equal Protection Clause bars one county-in a state from adopting a new voting mechanism simply because the new mechanism may create a disparity between that county and its neighbors, local officials will have little incentive to innovate. The reason is simple: each time a county implements a change in equipment, it risks becoming party to a lawsuit alleging disparities in voters’ chances of properly completing a ballot and having that ballot counted. Because of this powerful disincentive to innovate, Bush v. Gore, absent other legislative solutions, might “have the unintended effect of freezing our voting mechanics at the current level of technology.” Id. at 402. I will return to this point in Part III below.
In the final analysis, I believe that the best course is to understand the Supreme Court’s decision in Bush v. Gore as a shield to preserve the status quo in an electoral process beset by extraordinary temporal and political pressures. I therefore decline to join the majority in permitting litigants to use that decision as a sword to strike down state election policies that, while ripe for improvement, were previously on solid constitutional ground. See Posner, 2000 Sup.Ct. Rev. at 41 (explaining that differences in the technology and vote-counting methods used by counties “had not previously been thought to deny equal protection of the laws”).
In reaching this conclusion, I am not, as the majority charges, making the nonsensical claim that Professor Hasen’s law review article has overruled Bush v. Gore. See Maj. Op. at 874. I am instead faithfully following the Supreme Court’s explicit admonition in its decision that the analysis employed was “limited to the present circumstances.” Bush, 531 U.S. at 109 , 121 S.Ct. 525 . Lost in the majority’s rebuttal to my dissent is the recognition of a key aspect of Bush v. Gore that we all agree is clear: the Court’s unequivocal statement that it was not announcing a general rule for future cases. See Maj. Op. at 859 n. 9 (acknowledging the Court’s limiting language). Unlike my colleagues, I cannot look past the Court’s own words and attribute to the Court the intention — in a per curiam opinion issued one day after oral argument in the midst of a national crisis — to revolutionize the election laws and practices of this country.
B. Other lower courts have improperly expanded the reach of Bush v. Gore
This is not the first case in which plaintiffs have utilized Bush v. Gore as their principal tool for effecting change in electoral policy. See Steven J. Mulroy, Lemonade from Lemons: Can Advocates Convert Bush v. Gore Into a Vehicle for Reform?, 9 Geo. J. on Poverty L. & Pol’y 357, 358-59 (2002) (citing various cases, all filed in the wake of Bush v. Gore, that challenge the use of certain voting methods under the Equal Protection Clause and the Voting Rights Act). The majority bases much of its analysis on the strength of these test cases, including Black v. McGuffage, 209 F.Supp.2d 889 (N.D.Ill.2002), and Common Cause v. Jones, 213 F.Supp.2d 1106 (C.D.Cal.2001). Maj. Op. at 862-67; see Mulroy, 9 Geo. J. on Poverty L. & Pol’y at 358-60 (citing Black and Common Cause as cases that “voting rights advocates” filed in an attempt “to use [Bush v. Gore ] to push for long overdue electoral reform, by invoking the very equal protection theory relied on by the conservative Bush majority”). Like the district court below, however, I find these cases unpersuasive.
The chief weakness of these cases is their reliance on the per curiam opinion in Bush v. Gore as the primary basis for their decisions. See Southwest Voter Registra *890 tion Educ. Project v. Shelley, 344 F.3d 882 , 894 (9th Cir.) (per curiam) (Shelley I), rev’d en banc, 344 F.3d 914 (9th Cir.2003) (per curiam) (Shelley II); Black, 209 F.Supp.2d at 898 ; Common Cause, 213 F.Supp.2d at 1109 . For the reasons set forth in Part II.A. above, I do not view Bush v. Gore as a landmark precedent designed to vastly extend the reach of the Equal Protection Clause.
The case that most openly relies on Bush v. Gore is the Ninth Circuit’s now-vacated panel decision in Shelley I. In an opinion that looks and sounds strikingly like that of the majority in the present case, a panel of the Ninth Circuit enjoined the use of punch-card ballots in the 2003 gubernatorial recall election in California. 344 F.3d at 888. The theory of the California plaintiffs, which is identical to the one advanced by the Ohio plaintiffs in this case, was “that using error-prone voting equipment in some counties, but not in others[,] will result in votes being counted differently among the counties.” Id. at 895. Describing the plaintiffs’ allegations as stating “a classic voting rights equal protection claim,” id. at 895, the panel concluded that the plaintiffs had “demonstrated a sufficient likelihood of success on the merits regardless” of whether strict scrutiny or rational basis was the appropriate standard of review. Id. at 900. Success on the merits was likely, in the panel’s view, because the plaintiffs’ claim “present[ed] almost precisely the same issue as the [Supreme] Court considered in Bush," where the Court found an Equal Protection violation. Id. at 895. Within a week of the panel’s decision, however, the Ninth Circuit granted en banc review, vacated the panel opinion, and unanimously reached a conclusion opposite to that of the panel. Shelley II, 344 F.3d at 917, 920.
Despite the rather firm rebuke that the en banc court dealt the panel decision in Shelley I, the majority insists that the Ninth Circuit “did not reject outright the Equal Protection argument pursuant to the Bush v. Gore rationale ....” Maj. Op. at 866. I concede that the rejection was not “outright,” but the en banc court’s description of the panel’s rationale as “one over which reasonable jurists may differ” can hardly be construed as a ringing endorsement of Bush v. Gore’s precedential value or its application to the issue of variations in voting technology. Shelley II, 344 F.3d at 918. At the very least, the Ninth Circuit’s unanimous decision in Shelley II divested the panel decision of whatever precedential value it otherwise would have had.
Undeterred, the majority struggles to accord such value to Shelley I because the rationale adopted by the majority is virtually identical to the one provided by the Shelley I panel — namely, that the plaintiffs’ novel equal protection claims are controlled by Supreme Court precedents that mandate the equal weighting of votes. Compare Maj. Op. at 870-71 (holding that the counties’ use of outdated technology “results in the weighting of votes differently”), with Shelley I, 344 F.3d at 894-95 (describing the plaintiffs’ contention “that a vote cast in Los Angeles or San Diego is entitled to the same weight as a vote cast in San Francisco”). As I explained in Part I.A. above, however, the plaintiffs are not asserting that one properly marked and tabulated vote has less value than another, but instead that certain technologies decrease a voter’s chance of handing in a properly marked ballot that will then be tabulated. This claim, when properly characterized, does not fall within the ambit of Gray, Wesberry, Reynolds, or any of the Supreme Court’s caselaw establishing the right to an equally-weighted vote.
*891 Stripped of their connection to longstanding Supreme Court precedent, the majority opinion and Shelley I are persuasive only to the extent that Bush v. Gore is controlling. Neither opinion, in my view, successfully refutes the compelling reasons supplied by Professor Hasen for refusing to “take Bush v. Gore’s equal protection holding seriously.” Hasen, 29 Fla. St. U.L.Rev. at 380. What I believe makes the majority’s opinion even more troubling than that of the Ninth Circuit panel is its failure to articulate precisely which aspects of Ohio’s voting system violate the Equal Protection Clause, and what state and local officials should do in the future to ameliorate the perceived constitutional problems. I turn now to these concerns.
III. EQUALITY AND VOTING PROCEDURES
The majority holds that the certification and use of non-notice voting technology in one county but not in another violates the Equal Protection Clause because “punch card and central-count optical scan technologies result in a greater likelihood that one’s vote will not be counted on the same terms as the vote of someone in a notice county.” Maj. Op. at 871. Notwithstanding its cautionary language to the contrary, see Maj. Op. at 876-77, the majority is calling for virtually absolute equality in voting methods and procedures across all electoral districts in Ohio.
A closer look at some of the relevant numbers tells much of the story. The key statistic, as the plaintiffs present it, is that the residual-vote rate across the state was 2.29% for punch-card machines, 0.94% for electronic-voting machines, 1.04% for lever machines, and 1.15% for precinct-count optical scanners. In other words, the error rate in punch-card districts is twice that of counties with precinct-count optical scan equipment, and more than twice that of counties using lever or electronic-voting machines. The plaintiffs also rely on direct inter-county comparisons, pointing out that Cuyahoga County, which used punch-cards in the presidential elections at issue, had an error rate four times higher than Franklin County, where electronic-voting machines were used.
What the majority does not indicate, however, is which of these numbers is constitutionally significant. Is the constitutional problem the fact that voters in punch-card districts face an error rate twice as high as voters in precinct-count optical-scan districts? If so, then improvements in technology will not necessarily cure the equal protection problem. This is so because a voter in a county with a much-improved residual vote rate of 0.2% could point to a neighboring county where the rate is 0.1% and say the same thing— namely, that the error rate in her county is twice as high as in the neighboring county. Moreover, as voting technology improves and error rates decline, whatever disparities remain among the different types of voting equipment will be magnified. That is to say, even a technology that yields a negligible error rate of 0.1% might violate the Equal Protection Clause if other jurisdictions within the state employ technology with a rate of 0.01%, which is one-tenth as high. The majority refers to a “greater likelihood” that a vote will not be counted, but fails to articulate a coherent constitutional threshold — a point at which such a likelihood renders state voting practices unconstitutional.
Inter-county comparisons likewise fail to clarify the majority’s constitutional ruling. According to the plaintiffs, a disparity such as the one between Franklin and Cuyahoga Counties — where the residual-vote rate in the latter is four times that of the former — triggers strict scrutiny and, in all likelihood, dooms the challenged county *892 practice. Under that logic, however, punch cards and central-count optical scan equipment are not the only voting mechanisms that might violate the Equal Protection Clause. Lucas County, which used a lever-style AVM (Automatic Voting Machine), had a residual vote rate of 0.4% in the 2000 presidential election. See Stewart v. Blackwell, 356 F.Supp.2d 791, 826 (S.D.Ohio 2004). In that same election, Ross County used electronic voting and had a residual rate of 1.2% — three times that of Lucas County. See id. Do these numbers dictate that, in a suit by a voter from Ross County, the county’s decision to use electronic-voting machines should be reviewed under a strict-scrutiny standard? After all, the continued use of the voting machines subjects that voter to a “greater likelihood” than her counterpart in Lucas County that her vote will be excluded as improperly cast.
The strict-scrutiny standard exacerbates the hazards posed by the majority’s inexact approach. Any incremental change that leads to a potential disparity in voter-error rates becomes susceptible to legal challenges in which the state must show that its chosen practice or regulation is “necessary to promote a compelling state interest.” Mixon v. Ohio, 193 F.3d 389, 402 (6th Cir.1999); see also Craigmiles v. Giles, 312 F.3d 220, 223 (6th Cir.2002) (explaining that a challenged state regulation survives strict scrutiny only if it “serve[s] a compelling state purpose and [is] narrowly tailored to achieving that purpose”). But there is no guarantee that local governments would be able to satisfy this stringent standard when making the most mundane of decisions, such as replacing one brand of electronic-voting equipment (with, say, a 0.2% residual-vote rate) with another that happens to have a 0.4% residual-vote rate. What kind of justification would suffice, and how could the governmental body prove that the chosen course constituted the least restrictive means of meeting its goal?
The majority reads the above paragraphs as my faulting it for not articulating “a precise mathematical formula for determining when voting technology is constitutional and when it is not.” Maj. Op. at 876. But my reference to a “coherent constitutional threshold” does not require a concrete numerical error rate of x% or y%. See id. Rather, I have criticized the majority for failing to provide a framework for determining when the numerical differences that are unavoidable in the election setting become constitutionally problematic. In responding to this aspect of my dissent, however, the majority does no more than reaffirm its conclusion that the certification and use of non-notice technology in this case is unconstitutional. The majority does not explain why these particular differences in voting technology are unconstitutional — a failing that exposes its approach as something other than the “reasoned analytical” one that it urges courts to employ “when confronted with difficult constitutional questions.” Id. The next court facing the “difficult constitutional questions” inherent in a statistics-based equal protection challenge to state voting practices will therefore know only that, on these facts and these numbers, Ohio’s use of varied voting methods violated the Equal Protection Clause, but will not know why.
Moreover, I am not the one who has made number-crunching a dominant factor in the equal protection analysis. The plaintiffs themselves did so when they brought a case whose central premise is that statistical differences in voter-error rates suffice to show a constitutional violation. Because these numbers are squarely at issue, I have provided the above hypotheticals in order to highlight the majority’s failure to articulate a limiting principle *893 beyond its assurances that it is not announcing a general rule and that “[fjuture claims of this sort will be evaluated with [legal, financial, and practical] factors in mind.” Maj. Op. at 876.
The majority has responded by comparing apples to oranges, implying that the narrow “margin of decision” across all voters in recent presidential elections infuses the residual-vote rates at issue in the present case with added constitutional significance. Maj. Op. at 871 n. 18. But again the majority does not explain how these state-by-state margin-of-victory numbers affect, if at all, the equal protection analysis. I assume, for example, that the majority does not mean to suggest that the comparative error rates of voting machines would have to be less than the 0.009% margin-of-victory in Florida’s 2000 presidential election in order to pass constitutional muster.
In the end, my colleagues attempt to disclaim their reliance on quantitative differences, describing “[a] judicially imposed mathematical formula for evaluating voting rights cases” as “purely arbitrary.” Maj. Op. at 876. Such a formula, however, strikes me as no more arbitrary than the majority’s declaration that the specific differential in error rates across voting districts in the present case violates the Equal Protection Clause.
I also believe that the majority fails to grasp that “equality” is not a one-way street. If what the Equal Protection Clause requires is that counties across Ohio utilize voting mechanisms that yield a substantially similar residual-vote rate, then the use of punch-card ballots is presumably permissible so long as every county uses punch cards. That this voting method leads to a relatively high percentage of discarded votes statewide should make no difference to the equal protection analysis, since every voter would face the same chance of casting a ballot that is later deemed not to have been properly marked. In other words, while the majority presumes that requiring substantial equivalency in residual-vote rates across districts will prompt local governments to “ratchet up” to notice equipment, those governments would also be free to turn the ratchet down to cheaper non-notice technology.
This all-or-nothing approach carries with it substantial practical concerns. As Professor Hasen observed, when one district adopts a new voting method designed to decrease the percentage of voter error, voters in districts that have not yet implemented the new method would have a colorable claim, under the majority’s theory, that their constitutional rights have been violated. See Hasen, 29 Fla. St. U.L.Rev. at 401-02. The risk of a lawsuit each time improved technology emerges accordingly creates a perverse incentive for “freezing ... voting mechanics at the current level of technology.” Id. at 402.
Beyond the concern that the threat of lawsuits will halt innovation, the all-or-nothing approach increases the risk that technological setbacks could invalidate the electoral results on a statewide basis. Assume, for example, that one or more counties in Ohio want to experiment with Internet voting because such a mechanism might serve to decrease the error rate. If the trail-blazing counties are permitted to implement the new system on their own, security or logistical problems that call into question the validity of election results would affect only those counties, leaving intact the results from the rest of the state. On the other hand, if every county is required to simultaneously adopt a still imperfect system, a widespread technical failure could wipe out the entire state’s election results. Instant equality, while *894 fine in theory, does not account for these realities' of the electoral system.
In light of the uncertain doctrinal foundations of and the practical problems posed by the majority’s approach, I believe that the proper course is to review the challenged state and county election practices under the rational-basis standard. The Ninth Circuit followed this course in Weber v. Shelley, 347 F.3d 1101, 1106 (9th Cir.2003), a case in which the voter contested not the use of punch-card ballots, but rather the decision to abandon punch cards in favor of computerized voting. In rejecting the voter’s claim, the Ninth Circuit applied the Burdick framework, concluded that the increased risk of fraud inherent in the new technology did not severely restrict the right to vote, and upheld the officials’ decision as “a reasonable, politically neutral and non-discriminatory choice.” Id. at 1107.
The same result should follow in the present case. Voters in counties that employ non-notice voting technology — whether punch-card ballots or central-count optical-scan equipment — do face a slightly elevated chance that a ballot they believe was properly marked will later be found invalid. In my view, however, this slight increase in the risk of improperly marking a ballot simply does not constitute a “severe restriction” on the right to vote. See Burdick, 504 U.S. at 434 , 112 S.Ct. 2059 . We should not, after all, lose sight of the fact that nearly 98% of the votes cast even in the punch-card counties were properly counted in the 2000 presidential election. The Secretary of State’s decision to certify different types of voting equipment, and the counties’ decision to use those mechanisms, are therefore subject to rational-basis review, where “the State’s important regulatory interests are generally sufficient to justify” the government action. Id. at 434 , 112 S.Ct. 2059 (citation and quotation marks omitted); accord Weber, 347 F.3d at 1106 .
Like the district court, I believe that the government defendants have proffered sufficient reasons for their actions to survive the highly deferential rational-basis standard of review. See FCC v. Beach Communications, Inc., 508 U.S. 307, 313 , 113 S.Ct. 2096 , 124 L.Ed.2d 211 (1993) (explaining that legislation is presumably valid and “must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the” provision at issue). The majority dismisses the state’s concerns about the cost and administrability of the new voting systems, Maj. Op. at 869-70, but does not even mention a primary justification given by the state and accepted by the district court — that of security. Concerns about potential “computer manipulation and fraudulent voting,” according to one of the experts who testified, were substantial enough to delay the certification of DRE voting machines in the months leading up to the November 2004 elections. See Stewart, 356 F.Supp.2d at 803 n. 15. Recent events have revealed that these concerns were far from illusory. See Ann E. Marinow, TouchScreen Voting Fallible, Ehrlich Says, Wash. Post, March 6, 2006, at B01 (discussing Maryland’s decision to abandon its $90 million electronic-voting system because of concerns that the system was “vulnerable to tampering”). The state might also have worried about the all-or-nothing aspect of some DRE voting systems, which, unlike punch-card ballots, do not allow a voter who mistakenly casts an incomplete ballot to fill out a new ballot. See Stewart, 356 F.Supp.2d at 803 n. 14. These justifications suffice to show that the government defendants had a rational basis for choosing the challenged voting methods.
*895 Furthermore, for the reasons that I mentioned briefly in Part I above, I cannot accept the majority’s attempt to classify the plaintiffs’ claims as covered by the older Supreme Court precedents on voter-qualification requirements and the weighting of votes. The majority cites to the Court’s decision in Harper, 383 U.S. at 668 , 86 S.Ct. 1079 , insisting that “[t]he technology provided to a voter by the State, like that voter’s wealth, has no relation to voting qualifications or the value of that vote.” Maj. Op. at 870 (emphasis added). This statement conflates two different inquiries. Harper and other cases recognize that a state can determine voter qualifications absent invidious discrimination. See, e.g., Dunn v. Blumstein, 405 U.S. 330, 336 , 92 S.Ct. 995 , 31 L.Ed.2d 274 (1972) (citing Harper and other cases that hold that “States have the power to impose voter qualifications, and to regulate access to the franchise in other ways”). Other decisions recognize that states generally have wide latitude in controlling the administration of elections. See, e.g., Storer v. Brown, 415 U.S. 724, 730 , 94 S.Ct. 1274 , 39 L.Ed.2d 714 (1974) (“[A]s a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.”). The plaintiffs’ challenge in the present case goes to this latter ground — election administration — not voter qualifications. Harper , and its emphasis on the irrelevance of wealth as a factor for determining voter eligibility, is thus inapposite.
Reynolds also does not control the outcome of the present case.- The use of non-notice voting technology — even assuming that such technology leads to appreciably higher rates of residual votes — is not the same as “[weighting the votes of citizens differently.” Maj. Op. at 870 (quoting Reynolds, 377 U.S. at 563 , 84 S.Ct. 1362 ). Again confusing the refusal to count an improperly marked ballot with a state’s ascribing greater value to the votes of people living in one area rather than another, the majority asserts that voters in non-notice districts “have an unequal chance of their vote being counted, not as a result of any action on the part of the voter, but because of the different technology utilized.” Maj. Op. at 870. I agree with the district court, however, that the improper marking of a ballot is primarily due to the voter’s own actions, however unintentional those actions may have been. See Stewart, 356 F.Supp.2d at 803 (“[T]he voter has every opportunity to check the punch card ballot before submitting it to the election official at the polls and to be given a new ballot if a mistake is discovered.”). So although the technology utilized has a statistical correlation to residual-vote rates, a person’s failed attempted to cast a vote is primarily the result of human error. Some technologies admittedly account for such human error better than others. Until today, however, the Equal Protection Clause has not served as a check on human error in federal elections.
Technology that dilutes voting strength, the majority tells us, “is no less a [constitutional] violation than any other invidious method.” Maj. Op. at 871. But the use of different voting mechanisms has little to do with the type of “invidious discrimination” that the Equal Protection Clause was designed to prevent. That is why I believe that many of the broad statements in the majority opinion, although eloquent, are ultimately hollow. E.g., Maj. Op. at 879-80 (“Violations of the Equal Protection Clause are no less deserving of protection because they are accomplished with a modern machine than with outdated prejudices.”). However unpleasant the prospect, human error remains a part of the democratic process, and no constitutional *896 rule is going to change that fact. See Powell v. Power, 436 F.2d 84, 88 (2d Cir.1970) (holding that neither the Equal Protection and Due Process Clauses of the Fourteenth Amendment nor Article I, § 2 of the Constitution “guarantee against errors in the administration of an election”). What does have more potential to reduce the effect of human error on election results is incremental change of the kind that Congress enacted in the Help America Vote Act of 2002.
IV. THE HELP AMERICA VOTE ACT (HAVA)
If the end result of the majority’s holding is a requirement that all Ohio counties adopt some form of notice technology, then Congress has beaten my colleagues to the punch. Key provisions of HAVA impose detailed notice-technology requirements on states receiving federal funds for election administration, whether those states employ lever, optical-scan, or DRE voting systems. See 42 U.S.C. § 15481 (a)(1)(A) (2005). HAVA stops short, however, of banning the use of paper and punch-card ballots, explicitly permitting such ballots to be used so long as the state establishes a voter education program to explain the possibility of voter error, and provides instructions on how to correct those errors prior to the casting of a ballot. Id. § 15481(a)(1)(B); see also id. § 15481(c)(2) (preserving a state’s power to use paper ballots in federal elections). Punch-card voting systems thus survive HAVA even though, as the district court recognized, a primary “purpose of the Act was to provide federal funds to replace punch card voting systems.” Stewart, 356 F.Supp.2d at 792 n. 1.
As one would expect, HAVA has become a focal point for election litigation, spawning a series of lawsuits in this court and the district courts within the circuit. See, e.g., Sandusky County Democratic Party v. Blackwell, 387 F.3d 565 (6th Cir.2004) (per curiam); White v. Blackwell, 409 F.Supp.2d 919 (N.D.Ohio 2006); Bay County Democratic Party v. Land, 347 F.Supp.2d 404 (E.D.Mich.2004). These suits generally seek enforcement of obligations recently imposed by Congress on those states that choose to accept federal funds for election administration. The present suit, in contrast, eschews the significant but balanced changes mandated by HAVA, and instead seeks a broad constitutional rule. But because HAVA is coextensive with the majority’s constitutional rule in so far as both require that participating states like Ohio implement some form of a notice system, that constitutional rule is unnecessary. Ohio’s compliance with HAVA will give the plaintiffs substantially all the relief that they claim to seek.
What concerns me about the majority’s decision, therefore, is not the effect that the equal protection holding will have on election practices in Ohio in the upcoming November elections. Rather, I am troubled by two other aspects of the decision. The first is that the majority has inscribed its preferred principles of federal election law into the Constitution, thereby taking critical decisions out of the hands of government officials more familiar with the realities of the problems and the possible solutions. This course of action should be especially disfavored at a time when the democratic process — through HAVA and the discussions and debates engendered by that legislation — has responded with a national plan that still allows for variations among states and localities.
My second concern stems from the uncertain scope of the majority’s equal protection holding, which I explored in Part III above. HAVA requires that states employ some type of a notice system, regardless of the voting equipment used. But, as I have demonstrated, the majori *897 ty’s holding might render even some notice systems unconstitutional if other notice systems are found to have a substantially lower residual vote-rate. That is to say, the majority’s novel interpretation of the Equal Protection Clause sweeps far more broadly than does HAVA, and threatens to eliminate the ability of state and local governments to experiment with procedures and technology that maximize security, minimize cost, and make the voting process as inclusive as it should be. Cf. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 , 52 S.Ct. 371 , 76 L.Ed. 747 (1932) (Brandéis, J., dissenting) (“There must be power in the states and the nation to remould, through experimentation, our ... practices and institutions to meet changing social and economic needs.”). I therefore cannot join the majority’s decision to declare unconstitutional the use of different voting technologies across the state of Ohio.
V. VOTING RIGHTS ACT
Although the district court’s analysis of the claim brought by the plaintiffs under the Voting Rights Act could have been more thorough, I am not convinced that the court reached an erroneous conclusion. Indeed, the majority recognizes the district court’s finding that the residual-vote rate in rural counties with minimal percentages of African-American residents was higher than in the counties whose practices are challenged here. See Stewart, 356 F.Supp.2d at 820 . These findings are fully consistent with the district court’s view that the political process in the defendant counties was “equally open to participation by” African-American voters. See 42 U.S.C. § 1973 (b). The majority nevertheless decides to remand the plaintiffs’ claim for further findings and additional legal determinations, and holds that “the plaintiffs properly stated a claim under the Act ....” Maj. Op. at 879. This latter conclusion strikes me as both premature and inconsistent with the majority’s decision to remand for further findings of fact.
I also disagree with the majority’s instructions to the district court on remand. The majority purports “[t]o aid” the district court’s analysis by citing to Johnson v. DeGrandy, 512 U.S. 997, 1019 , 114 S.Ct. 2647 , 129 L.Ed.2d 775 (1994), a case that the majority says “reject[s] the argument that vote dilution in one part of the state can be remedied by another part of the state.” Maj. Op. at 879 (emphasis added). DeGrandy , however, provides little guidance in the present case for two reasons. The first is that the plaintiffs here have alleged a vote denial claim, not a vote dilution claim like the one addressed in DeGrandy. See Stewart, 356 F.Supp.2d at 808 (S.D. Ohio 2004 ); see also Johnson v. Governor of the State of Fl., 405 F.3d 1214 , 1227 n. 26 (11th Cir.) (en banc) (explaining the requirements for proving a claim of vote denial), cert. denied, — U.S. -, 126 S.Ct. 650 , 163 L.Ed.2d 526 . (2005). Second, DeGrandy is a reapportionment case that does not speak in terms so general as to cover differences in voting technology across counties.
I therefore dissent from the majority’s decision to vacate and remand and from the imprecise instructions it has provided to the district court. But because the district court will have an opportunity on remand to supplement the factual record and to address the Voting Rights Act claim anew, I see no point in fully analyzing this claim on what is essentially an interlocutory basis. Indeed, as the en banc Ninth Circuit found under similar circumstances in Shelley II, the application of the Voting Rights Act to allegations like those made by the plaintiffs presents close, fact-sensitive questions. See 344 F.3d at 918-919. I will therefore explore those questions if *898 and when the plaintiffs’ claim under the Voting Rights Act returns to this court.
VI. CONCLUSION
The expansive reading of Bush v. Gore by the Ninth Circuit panel lasted less then ten days before being vacated en banc, leaving today’s decision as the only one from a federal court of appeals to invalidate state-election practices on the basis of Bush v. Gore’s equal protection holding. Because I believe that the Supreme Court’s precedents outside of Bush v. Gore permit the states significant leeway in the administration of elections, that the Constitution does not require local governments to employ voting technology that assures every voter a statistically identical chance of turning in a properly marked ballot, and that HAVA already mandates many of the changes that the majority has elevated to constitutional requirements, I would affirm the grant of summary judgment in favor of the defendants with regard to the claim under the Equal Protection Clause. With respect to the claim under the Voting Rights Act, I am not convinced that the district court erred either in its ultimate conclusion or in denying the plaintiffs’ request to certify a class. I therefore respectfully dissent from the majority’s contrary conclusions.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9498859. Public record. Not legal advice.