1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 16a0231p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

N ORTHEAST O HIO C OALITION FOR THE H OMELESS ; C OLUMBUS C OALITION FOR THE H OMELESS ; O HIO D EMOCRATIC P ARTY , Plaintiffs-Appellees/Cross-Appellants ,

v

.

J ON H USTED , in his official capacity as Secretary of the State of Ohio, Defendant-Appellant/Cross-Appellee ,

S TATE OF O HIO , Intervenor-Appellant/Cross-Appellee

. ┐ │ │ │ │ │ │ │ │ │ │ │ │ │ │ ┘ Nos. 16-3603/3691

Appeal from the United St ates District Court for the Southern District of Ohio at Columbus. No. 2:06-cv-00896—Algenon L. Marbley, District Judge. Argued: August 4, 2016
Decided and Filed: September 13, 2016
Before: KEITH, BOGGS, and ROGERS, Circuit Judges.

_________________ COUNSEL

ARGUED: Stephen P. Carney, OFFICE OF TH E OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellants/Cross-Appellees. S ubodh Chandra, THE CH ANDRA LAW FIRM, LLC, Cleveland, Ohio, for Appe llees/Cross-Appellants. ON BRIEF: Stephen P. Carney, Eric E. Murphy, Michael J. Hendershot, Ryan L. Rich ardson, Zachery P. Keller, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellants/Cross-Appellees. Subodh Chandra, Sandhya Gupta, TH E CHANDRA LAW FIRM, LLC, Cl eveland, Ohio, Caroline H. Gentry, Ana P. Crawford, PORTER, WRIG HT, MORRIS & ARTHUS LLP, Dayton, Ohio, Donald J. McTigue, Jr. Corey Colombo, MCTIGUE MCGINNIS & COLOMBO, Columbus, Ohio, Donald J. McTigue, Jr. Corey Colom bo, Derek S. Clinger, MCTIGUE & COLOMBO 

### >Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 2

LLC, Columbus, Ohio, for Appellees/Cross-Appe llants. Chad A. Readler, JONES DAY, Columbus, Ohio, Michael A. Carvin, Anthony J. Dick, Stephen A. Vaden, JONES DAY, Washington, D.C., for Amicus Curiae.
BOGGS, J., delivered the opinion of the cour t in which ROGERS, J., joined. KEITH, J. (pp. 31–68), delivered a sepa rate dissenting opinion.

_________________ OPINION

_________________ BOGGS, Circuit Judge. In 2014, Ohio enac ted Senate Bills 205 and 216. Among other changes to Ohio election law, they (1) required county boards of elections to reject the ballots of absentee voters and provisional voters whose identification envelopes or affirmation forms, respectively, contain an addre ss or birthdate that does not perfectly match voting records; (2) reduced the number of post-elec tion days for absentee voters to cure identification-envelope errors, and provisional voters to present valid id entification, from ten to seven; and (3) limited the ways in which poll workers can assist in-person voters. The district c ourt held that all three provisions impose an undue burden on the right to vote and dispar ately impact minority voters.
We affirm the plaintiffs’ undue-burden cl aim only as it relates to the requirement imposed by Senate Bill 205 that in-person and ma il-in absentee voters comp lete the address and
birthdate fields on the identifica tion envelope with technical preci sion. We reverse the district court’s finding that the other prov isions create an undue burden. We also reverse the district court’s finding that the provisions disparately impact mino rity voters. We affirm the district court’s other holdings.

I. Background
Ohioans need not queue on Election Day to exer cise the right to vote. The State accepts absentee ballots by mail and, on designated early-voting days, in person. Ohio Rev. Code §§ 3509.01(B), 3509.05(A). A voter who declares that he or she is registered but whose name does not appear on a precinct’s list of eligible voters can cast an in-person provisional ballot on either an early-voting day or Election Day. Id. § 3505.181(A)(1), (B)(2).Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 3

In 2014, the Ohio General Assembly en acted Senate Bills 205 (SB 205) and 216 (SB 216), amending state election provisions that govern absentee and provisional voting. The laws have been in effect since early June 2014.

A. SB 205
Any eligible voter can apply for an abse ntee ballot. Ohio Rev. Code § 3509.03. Completing the application involve s providing a name, signature, re gistration address, date of birth, and a form of identification. Id. § 3509.03(A)–(E). Acceptable identification includes: a driver’s license number; the last four digits of a Social Security number; or a copy of a valid photo ID, valid military ID, current utility bill, bank statement, government check, paycheck, or other government document (excluding a registra tion notice) showing th e voter’s name and
address. Id. § 3509.03(E). The same are acceptable form s of identification when casting an
absentee ballot. Id. § 3509.05(A). Applicants can request and receive an absentee ballot through the mail by providing a mailing address. Id. § 3509.03(I).
When voting, mail-in and some in-perso n absentee voters must complete an “identification envelope” along with their ballots. 1 The identification enve lope contains fields for the voter’s name, signature, vo ting residence, and birthdate. The county boards of elections may preprint the voter’s name and address on th e identification envelope s of mail-in voters. Id. § 3509.04(B). The Secretary of State’s 2015 election manual “instruct[s]” the boards to do so in order to “eliminate any chance that a voter’s abse ntee ballot may be rejected for the sole reason” that the voter failed to complete those fields. Before SB 205 went into effect, absentee ballots could be rejected if the identification envelope “accompanying an absent vot er’s ballot or absent voter’s presidential ballot [was] insufficient,” if the signatures “d[id] not correspond with the person’s registration signat ure,” or if the voter failed to prov ide identification. Ohio Rev. Code § 3509.07 (2013). In 2010, the Secretary circulated a directive to the count y boards of elections stating that the identification envelope must include a proper voter name and signature for the corresponding ballot to be counted.

1 Some Ohio counties give early in-person voters the option to cast their ballots on a direct-recording electronic-voting machine. Those who do so are not al so required to complete the identification envelope.Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 4

SB 205 added two fields to that list. It sp ecifies that an identification envelope is “incomplete” without accu rately filled birthdate 2 and address fields. Ohio Rev. Code § 3509.06(D)(3). An “incomplete” identification enve lope results in the ba llot’s rejection unless the voter “provide[s] the necessary information to the board of elections in writing and on a form prescribed by the secretary of state.” Id. § 3509.06(D)(3)(b).
SB 205 made two other changes to Ohio election law that are at issue. When an absentee ballot contains an error, the board of elections gives the voter notice of the additional information required for the ballot to be counted. SB 205 reduced the window for voters to submit corrections from the ten days after Election Day to the seven days after Election Day. See ibid. In addition, SB 205 prevents election officials from providing “assistance” to voters with the exceptions of voters who “[d]eclar e[]” that they are “unable to mark” their ballot due to “blindness, disabilit y, or illiteracy.” Id. § 3505.24.

B. SB 216
Provisional voters must complete a “provisiona l ballot affirmation” form. Ohio Rev. Code § 3505.182. Before the implementation of SB 216, a provisional ballo t was counted if the voter presented valid identification 3 and the affirmation form included the voter’s name, signature, and a statement of eligibility. Oh io Rev. Code § 3505.183(B)(1) (2013). The back of the form contained a separate registration appl ication. Provisional vot ers whose ballots were rejected for failure to register but who complete d the application became registered for the next
election.

SB 216 added birthdate 4 and address to the list of affirm ation-form fields that provisional voters must accurately complete. Ohio Rev. Code § 3505.183(B)(1)(a). The affirmation form

2 The birthdate requirement is satisfied if the voter provides a month and day of birth that match the month and day in the registration database, if the birthdate in the re gistration database is January 1, 1800, or if a majority of the four-member elections board find that the voter ha s met the name, address, signature, and identification requirements. Ohio Rev. Code § 3509.06(D)(3)(a)(iii).
3 The identification requirement for provisional vot ers is similar to that for absentee voters. See Ohio Rev. Code § 3505.18(A).
4 The birthdate requirement for provisional voters has similar exceptions to those for the requirement for absentee voters. See Ohio Rev. Code § 3505.183(B)(3)(e).Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 5

now doubles as a registration app lication, applicable to provisi onal voters whos e ballots are rejected for failure to register. Id. § 3505.182(F). The bill also added the word “printed” before “name” in the list of affirmation-form requirements. Compare id. § 3505.183(B)(1)(a), with Ohio Rev. Code § 3505.183(B)(1)(a) (2013). This a ppears to have clarif ied, rather than modified, existing law. Between the 2008, 2010, and 2012 general elections, most counties rejected provisional ballots for failure to include a “printed” name. Furthermore, a 2012 directive from the Secretary instructed electi ons boards to reject pr ovisional ballots whose affirmation statements lacked “the voter’s printed name.”
A provisional voter without vali d identification may return to the board of elections to cure an otherwise complete ballot by providing a driver’s license number, state identification card number, the last four digits of the individu al’s Social Security number, a photo or military ID, or a copy of a current utility bill, bank st atement, government check, paycheck, or other government document (excluding a registration notic e) showing the voter’s name and address.
Ohio Rev. Code § 3505.181(B)(7)(a). SB 216 reduced the period for doing so from the ten days after Election Day to the seve n days after Election Day. Compare Ohio Rev. Code § 3505.181(B)(8) (2013), with Ohio Rev. Code § 3505.181(B)(7).
C. Procedural History
In 2006, the Northeast Ohio Coalition for the Homeless (NEOCH) and the Service Employees International Union sued the Secr etary to enjoin the enforcement of voteridentification and provi sional-ballot laws. 5 Although perhaps rich sour ce material for a prickly civil-procedure hypothetical, the cas e’s many twists and turns are unn ecessary to chronicle here. Suffice it to say, litigation was still proceedin g in 2010 when the parties entered a consent
decree.
Ohio’s eighty-eight counties ha ve four-person boards respons ible for admini strating local
elections. The 2010 decree required the Secretary to info rm elections boards to count the provisional ballots of re gistered voters whose affirmation forms included an accurate name,

5 Within days of the plaintiffs’ filing su it, Ohio intervened as a defendant. See Fed. R. Civ. P. 24(b). With the parties’ consent, the Ohio Democratic Party (ODP) intervened as a plaintiff in 2008. Soon after, the Columbus Coalition for the Homeless (CCH) was added as a plaintiff.Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 6

verified signature, and the last f our digits of the voter’s Social Se curity number. It also listed grounds on which provisional ballots could not be rejecte d, including failure to “provide a date
of birth” or “address . . . tied to a house, apartment or other dwelling [if] the voter indicated that he or she resides at a non-building location.” 6 The Secretary was required to give the court notice of changes to the law th at would “supersede” the decree.

The decree was in effect for the 2010 and 2012 elections. Although it was originally set to expire on June 30, 2013, the court, on the plaintiffs’ motion, extended it through the end of 2016. In September 2014, the Secretary informed the court that SB 216’s rejection requirement for imperfect birthdate and address fields, a nd the three-day reducti on in the cure-period, “automatically amended” the decree.
The plaintiffs moved for leave to file a supplemental complaint. See Fed. R. Civ. P. 15(d). They petitioned the court to permanen tly enjoin the Secretary from implementing portions of SB 205 and SB 216. The defendants opposed. In August 2015, the court granted the motion because SB 216 “ero[ded]” the consent d ecree’s protections and because both SB 205 and SB 216 related to the original complaint, which challenged Ohio’s voter-identification requirements more generally.
The supplemental complaint asserts ten count s: a viewpoint-discrimination claim under the First and Fourteenth Amendments; claims under the Fourteenth Am endment’s Due Process Clause of a fundamentally unfair voting system a nd violation of procedural due process; claims under the Fourteenth Amendment’s Equal Protection Clause of an undue burden, lack of uniform standards, and arbitrary and disp arate treatment; a claim of intent ional discriminati on in violation of the Fourteenth and Fifteenth Amendments; and literacy-test, immaterial-error, and vote-denial claims under the Voting Rights Act (VRA)

. The court presided over a bench trial in Marc h 2016. Over the course of twelve days, it heard the testimony of more than twenty board of elections offici als from different counties, two

6 Ohio law requires elections boards to “examine any additional information” in addition to “determin[ing] whether the individual who cast the provisional ballot is registered and eligible to vote in the applicable election” in order to “determine whether a provisional ballot is valid and entitled to be counted.” Ohio Rev. Code. § 3505.183(B)(1)–(2). The original complaint alleged that elections boards would not “apply the same standards when . . . determining whether provisional ballots are eligible to be counted.”Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 7

members of the Ohio General Assembly, the Assi stant Secretary of State (who also serves as “head of elections”), and two members of the Oh io Association of Election Officials (OAEO),
which includes members of the elections bo ards of every Ohio county and has equal representation from the two majo r parties. In addition, the re cord includes declarations of absentee and provisional voters w hose ballots were rejected for birthdate and address errors. Several, for example, wrote the current date in stead of their birthdates. One transposed the location of the digits indicating the month and day of his birth despite specific language on the form to the contrary because he grew up in a country that follows the date sequence used
elsewhere in the world.
The court was also presented with opinion te stimony from Dr. Jeffrey Timberlake for the plaintiffs, and Drs. Nolan McCarty and M.V. Ho od, III, for the defendants. Because Ohio does not record the race or ethnicity of its voters, Timberlake used county-level data to make inferences about the relationship between voter race and the use or rejection of absentee and provisional ballots. He examined data from the 2008, 2010, 2012, and 2014 general elections.
Timberlake divided counties into “high minority” and “low minority” groups, and performed a regression asse ssing the correlation between a county’s percent minority and absentee and provisional ballot us e and rejection. Two of his models contro lled for urbanicity, and the age, education, and income of the white population. In those models, Timberlake observed “some evidence, though not very strong ev idence, that absentee ba llots are used more heavily by voters in high -minority counties.” He found “much stronger” ev idence of higher rates
of absentee-ballot rejection among African-American voters. All four elections showed higher use and rejection rates of provisi onal ballots in higher-minority c ounties, even when controlling for urbanicity and the three white-population characteristics.
The district court’s opinion gave “great weight” to Timberla ke’s conclusions. It found that the defense expert witnesses did not refute Timberlake’s report. The court next considered
nine nonexhaustive factors from Thornburg v. Gingles , 478 U.S. 30 (1986), “that might be probative” of a violation of Section 2 of the VRA. Id. at 36; id. at 36–37. In particular, the court
concluded that the evidence on th e record did not support Ohio’s justifications for enacting
SB 205 and SB 216.Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 8

Ultimately, the court entered judgment for th e plaintiffs on their undue-burden and votedenial claims, and for the defendants on all other counts. It permanently enjoined the enforcement of the portions of SB 205 and SB 216 th at: require boards to reject the ballots of absentee and provisional voters who do not accurately complete the address and birthdate fields; reduce the cure period to seven days; prohibit mo st forms of poll-worker assistance; and require provisional voters to print thei r names on the affirmation form.
Ohio appeals the entry of judgment for the plaintiffs on the undue- burden and vote-denial claims. Additionally, it contends that the court improperly approved the supplemental complaint, that the plaintiffs should have been precluded from bringing their challenges, and that they lack standing. The plaintiffs cross-appeal the entry of judgment for Ohio on the uniformstandards, literacy-test, due-pr ocess, intentional-discriminatio n, and immaterial-error claims.
II. Claim Preclusion and Standing
Ohio argues that all three plaintiffs, and the Ohio Democratic Party (ODP) at the very least, are bound by the district court’s decision in Ohio Org. Collaborative v. Husted , No. 2:15- cv-1802, 2016 WL 3248030 (S.D. Ohio May 24, 2016). If claim preclusion prevents ODP from proceeding, Ohio asserts, we should next consider its argument that the remaining plaintiffs,
NEOCH and the Columbus Coalition for the Ho meless (CCH), lack standing. That one-two punch is too clever by half. Even if ODP were bound by Ohio Org. Collaborative (an issue on which we need not opine), 7 NEOCH and CCH are not. And they have standing to bring suit.
For the first time on appeal, Ohio contends that NEOCH and CCH are precluded from bringing their claims because of a decision in a suit in which ODP was a party that was issued
two weeks before the district-cou rt judgment in this case. Ev en assuming that Ohio did not waive this argument by failing to raise it before the district court, see Mun. Resale Serv.
Customers v. FERC , 43 F.3d 1046, 1052 n.4 (6th Cir. 1995), it is without merit. “The general rule” of claim preclusion “provides that when a court of competent jurisdiction has entered a

7 In August 2015, plaintiff Ohio Organizing Collaborative moved to substitute three par ties in its place, including ODP, and to “drop . . . claims that overlap with those in” this case. Ohio opposed the latter motion. The court granted the substitution request but denied the motion to amend. Ohio Org. Collaborative v. Husted , No. 2:15- cv-1802 (S.D. Ohio Sept. 2, 2015) (opinion and order).Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 9

final judgment on the merits of a cause of action, the parties to the suit and their privies are thereafter bound . . . ‘as to every matter which wa s offered and received to sustain or defeat the
claim or demand.’” Commissioner v. Sunnen , 333 U.S. 591, 597 (1948) (quoting Cromwell v. County of Sac , 94 U.S. 351, 352 (1876)). “[I]n certain limited circumstances,” a nonparty is “adequately represented by someone with the same interests who is a party.” Martin v. Wilks , 490 U.S. 755, 762 n.2 (1989). However, “to bind litig ants to a judgment rendered in an earlier litigation to which they were no t parties and in which they were not adequately represented” would violate due process. Richards v. Jefferson County , 517 U.S. 793, 794 (1996) (citing Hansberry v. Lee , 311 U.S. 32 (1940)).
An essential element of adequate representati on is that “[t]he in terests of the nonparty and her representative are aligned.” Amos v. PPG Indus., Inc. , 699 F.3d 448, 452 (6th Cir. 2012) (quoting Taylor v. Sturgell , 553 U.S. 880, 900 (2008)). Citing Amos , Ohio suggests that the “aligned interests” of ODP and the other plaintiffs “are shown by the fact that they co-litigated
this case with joint pleadings.” First Br. 58. Th e lax approach to nonparty preclusion implied by that reasoning would unmoor the requirem ent of “adequacy” from the anchor of “representation.” “Representative capacity mu st be established . . . by private or public appointment”—not by the assertions of a “self-ap pointed volunteer,” and certainly not by acting as co-parties in a later suit. 18A Charles Alan Wright , Ar thur R. Miller & Edward H. Cooper,
Federal Practice and Procedure § 4454 (2d ed. 2002). ODP did not represent NEOCH and
CCH in Ohio Org. Collaborative

. Further, mere overlapping interest will not work to preclude a nonparty from litigating a claim that a putative representative tried earlier. See Becherer v. Merrill Lynch, Pierce, Fenner & Smith, Inc. , 193 F.3d 415, 424 (6th Cir. 1999) (en ba nc) (rejecting clai m of “virtual representation” when nonparty and supposed represen tative lacked “legal relationship”). Nor does Ohio point to any indication that “special procedures” were put in place to protect the
interests of NEOCH and CCH in Ohio Org. Collaborative

. Amos , 699 F.3d at 452. NEOCH and
CCH are therefore not bound in this cas e by an earlier judgment against ODP.
Whether a party has standing is a legal question that appella te courts review de novo.
Shearson v. Holder , 725 F.3d 588, 592 (6th Cir. 2013). When one party has standing to bring aNos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 10

claim, the identical claims br ought by other parties to the same lawsuit are justiciable. Dep’t of Commerce v. U.S. House of Representatives , 525 U.S. 316, 330 (1999). Because NEOCH has organizational standing, we do not reach Ohio ’s other arguments regarding NEOCH’s and CCH’s standing to bring suit.
To establish standing, a plainti ff must show a concrete and pa rticularized injury that is actual or imminent, a causal conne ction between the inju ry and the conduct complained of, and
likelihood that a favorable decisi on will redress the injury. H.D.V.-Greektown, LLC v. City of
Detroit , 568 F.3d 609, 616 (6th Cir. 2009). In addition to suing on behalf of its members, an entity may sue “on its own behalf because it ha s suffered a palpable injury as a result of the
defendants’ actions.” MX Grp., Inc. v. City of Covington , 293 F.3d 326, 332–33 (6th Cir. 2002).
Ohio points to our recent decision in Fair Elections Ohio v. Husted , 770 F.3d 456 (6th Cir. 2014), and argues that NEOCH a nd CCH have suffered no injury. In that case, we held that an organization that had conducte d voter outreach lacked standi ng to challenge absentee-ballot procedures permitting hospitalized voters to obtai n absentee ballots later than jailed voters. Id. at 459. The bases offered to support its injury claim—instructing elect ion volunteers who were already being trained in current absentee-vot ing procedures and speculation that the law compelled the group to divert resources—were insufficient. Id. at 459–60.
Unlike the plaintiff organization in Fair Elections that challenged th en-existing voting law, NEOCH takes issue with newly enacted provisi ons. That distinction is not just academic.
Whereas the Fair Election plaintiff merely exhausted “efforts and expense [in] a dvis[ing] others how to comport with” existing law, id. at 460, NEOCH has immedi ate plans to mobilize its
limited resources to revise it s voter-education and get-out-th e-vote programs on account of SB 205 and SB 216. In the past, NEOCH focused on educating and assis ting the homeless with mail-in voting. Given the changes ushered in by SB 205 and SB 216, NEOCH determined that its resources are better spent assi sting the homeless in participati ng in early in-person voting. To that end, it plans to redirect its focus for th e 2016 general election by encouraging early inperson voting and driving homeless voters to the polls. It reports that this will require more volunteers, time, and expenditures. That is not simply the “effort and expense” associated with advising voters how to “comport” with the law, ibid. , but an overhaul of the get-out-the-voteNos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 11

strategy of an organizati on that uses its limited resources helping homeless voters cast ballots. Their injury is imminent, as well as concrete and particularized.
Standing must exist as to each claim, however, and cannot be “dispensed in gross.” Lewis v. Casey , 518 U.S. 343, 358 n.4 (1996). But the record demonstrates that NEOCH has standing for its VRA claims as well. The injury suffered by NEOC H, as noted above, is directly related to SB 205 and SB 216’s alleged impacton the opportunity to vote of the AfricanAmerican community. Because their allegations indicate that the burden would cause them to change significantly their expenditures and opera tion and a favorable deci sion would redress that injury, NEOCH has organizational st anding here as well. Finally, with regard to the cause of action, the VRA permits suit by the Atto rney General or aggrieved voters, see Allen v. State Bd. of Elections , 393 U.S. 544, 557 (1969), but the Suprem e Court has permitted organizations to bring suit in VRA claims, see Ala. Legislative Bla ck Caucus v. Alabama , 135 S. Ct. 1257 (2015).
III. Supplemental Pleadings

The district court did not abus e its discretion by granting the plaintiffs’ motion to file a supplemental complaint. A district court may “permit a party to serve a supplemental pleading setting out any transaction, occurrence, or even t that happened after the da te of the pleading to be supplemented.” Fed. R. Civ. P. 15(d). Rule 15(d ) aims “to give the co urt broad discretion in allowing a supplemental pleading.” Fed. R. Ci v. P. 15(d) advisory committee’s note to 1963
amendment.

We review for abuse of discretion. See Spies v. Voinovich , 48 F. App’x 520, 527 (6th Cir. 2002). A district c ourt abuses its discretion by relyi ng on an incorrect legal standard, misapplying the correct legal standard, or judging the outcome based on clearly erroneous factual findings. Paterek v. Village of Armada , 801 F.3d 630, 643 (6th Cir. 2015).

Here, the court found that the original and supplemental co mplaints were sufficiently linked because SB 216 superseded the consent d ecree’s protections and because both provisions allegedly imposed burdens that would impede voti ng in similar ways as the voter-identification provisions originally ch allenged. “In essence,” the court found, “the ‘focal points’ of bothNos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 12

complaints are the same: ensuring all ballots, but particularly provisional and absentee ballots, . . . are not unfairly excl uded and left uncounted due to ill egal voter identification rules.”
In so concluding, the court carefully applied the correct legal standa rd and did not make clearly erroneous factual findings. The suppl emental complaint revolved around new election laws that affected the terms of a longstanding c onsent decree that resolved an even lengthier dispute. So, Defenda nts’ reliance on Leisure Caviar , 616 F.3d at 616, which addressed the issue of newly discovered evidence after entry of judgment, is misplaced. See First Br. 56. The district court did not clearly er r when it found that the plaintiffs ’ primary grieva nce with both sets of provisions was that methods of vot er identification caused elections boards to disproportionately reject homele ss voters’ absentee and provisiona l ballots. The interest of judicial economy, although not necessarily enough in and of itself, also militates in favor of allowing supplemental pleadings. When a disput e is complicated and protracted, and a new complaint the likely alternative, allowing supplem ental pleadings before a court already up to speed is often the most efficient course.
IV. Voting Rights Act Claims
All three VRA claims are contested on appeal . Ohio appeals the judgment on the votedenial claim. The plai ntiffs appeal the judgment on the l iteracy-test and materiality claims.
A. Vote Denial or Abridgment
1. Legal Framework
We review the district court’s legal conc lusions de novo and factual findings for clear

error. Lindstrom v. A-C Prod. Liab. Tr. , 424 F.3d 488, 492 (6th Cir. 2005). “Under the clearerror standard, we abide by the court's findings of fact unless the record ‘le[aves] [us] with the
definite and firm conviction that a mistake has been committed.’” United States v. Yancy , 725 F.3d 596, 598 (6th Cir. 2013) (alte rations in original) (quoting United States v. Gardner , 649 F.3d 437, 442 (6th Cir. 2011)). 8

8 Although the dissent repeatedly classifies our review as de novo, our approach is consistent with established precedent in reversing the di strict court where the over all record is inconsistent with the findings.Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 13

In City of Mobile v. Bolden , 446 U.S. 55 (1980), the Suprem e Court held that racially
neutral state action did not fall within the am bit of VRA Section 2. Congress countered by amending Section 2. That response “ma[d]e clear” to the Court “that a vi olation [of Section 2] could be proved by showing discriminatory effect alone.” Gingles , 478 U.S. at 35. Section 2
now reads:
(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abri dgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in s ection 10303(f)(2) of this title, as provided in subsection (b). (b) A violation of subsection (a) is esta blished if, based on the totality of circumstances, it is shown that the polit ical processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity th an other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protec ted class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.
52 U.S.C. § 10301 (Supp. II Vol. III 2015). The stat ute operates as a “permanent, nationwide ban,” Shelby County v. Holder , 133 S. Ct. 2612, 2631 (2013), on “e ven the most subtle forms of discrimination,” Chisom v. Roemer , 501 U.S. 380, 406 (1991) (S calia, J., dissenting).
“The essence of a [Section] 2 claim” is the assertion that a challenged provision “interacts
with social and historical cond itions” to cause an inequality of opportunity for racial minority

voters. Gingles , 478 U.S. at 47. Evaluating that allegati on “requires ‘an intensely local appraisal of the design and impact’ of the contested electoral mechanisms.” Id. at 79 (quoting Rogers v. Lodge , 458 U.S. 613, 622 (1982)). Section 2 claims i nvolve either vote denial or vote dilution. Examining a vote-dilution claim in Gingles , the Supreme Court embraced nine nonexhaustive factors as relevant in assessing “the totality of circumstances” for establishing a Section 2

See, e.g. , Indmar Prod. Co. v. Comm’r , 444 F.3d 771, 778 (6th Cir. 2006) (“[W]hile our review is deferential, it is not nugatory.”).Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 14

violation. Because the Court has yet to consider a Secti on 2 vote-denial claim after Gingles , the standard for such adjudication is unsettled.

In Ohio State Conference of the NAACP v. Husted , 768 F.3d 524 (6th Cir. 2014), we stated the analytical framework for Section 2 vote -denial claims as a two-part test: (1) “[T]he challenged ‘standard, practice, or procedure’ mu st impose a discriminatory burden on members of a protected class, meaning th at members of the protected cla ss ‘have less opp ortunity than other members of the electorate to participate in the political process and to elect representatives of their choice,’” and (2) “that burden must in part be caused by or linked to ‘social and
historical conditions’ that have or currently produce discrimination against members of the protected class.” Id. at 554 (quoting 52 U.S.C. § 10301 (Supp. II Vol. III 2015) and Gingles , 478 U.S. at 47). The Ohio State Conference panel affirmed an order preliminarily enjoining Ohio from reducing early in-person voting for the 2014 general election. The Supreme Court stayed that order. Husted v. Ohio State Conference of NAACP , 135 S. Ct. 42 (2014). Because the injunction applied on ly to the upcoming election, the pa nel vacated its opi nion—including its
articulation of the Secti on 2 vote-denial test. Ohio State Conference of the NAACP v. Husted , No. 14-3877, 2014 WL 10384647 (6th Cir. Oct. 1, 2014). On remand to the district court, the parties reached a settlement.
Two circuits have since adopted the Ohio State Conference test. See Veasey v. Abbott , ___ F.3d. ___, No. 14-41127, 2016 WL 3923868, at *17 (5 th Cir. July 20, 2016) (en banc); League of Women Voters of N.C. v. North Carolina , 769 F.3d 224, 240 (4th Cir. 2014). The district court used it in this case, and a r ecent Sixth Circuit pane l found it “helpful” in determining a Section 2 vote-denial claim. Ohio Democratic Party v. Husted , ___ F.3d ___, 2016 WL 4437605, at * 13 (6th Cir. Aug. 23, 2016) (evaluating a vo te-denial claim using the Ohio State Conference framework, with addi tional clarification).
Ohio argues that the two-part test goes awry in two ways. Whether the district court did in fact mischaracterize the test is irrelevant, howe ver. At the very least, a successful Section 2 claim requires the plaintiffs to pr ove disparate impact. The plainti ffs failed to prove that SB 205 and SB 216 have a disparate impact on African-Ameri can voters. Therefore, analysis of any test beyond disparate impact is unnecessary.Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 15

2. SB 205 and SB 216

The district court found that “Timberlake’s data on disparities in provi sional and absentee ballot usage and rejection rates reveal that higher minority popul ation share is correlated to higher rates of absentee ballot rejection and prov isional ballot usage and rejection.” Based on that analysis, it concluded that SB 205 and SB 216 make “African-American voters . . . more likely than white voters to have their absentee or provisional ballots rejected.” The record would
indicate otherwise.
For starters, Timberlake’s regression analysis simply does not support the conclusion that
SB 205’s address and birthdate perfection requirement, or it s limitation on poll-worker assistance, disparately impact mino rity voters. When controlli ng for urbanicity and the age, income, and education of the white population, Ti mberlake found that for every additional one percent minority in a county, use of absentee ballots increased by a small amount in the 2008 and 2010 general elections—134.2 and 195.2, respective ly, for every 100,000 voting-age residents—
but decreased by 99.5 and 96.6 ballots in the 2012 and 2014 general elections. 9 He therefore found that the evidence to support the conclu sion that high-minority counties use absentee ballots more heavily was “not very strong.”
Certainly additional absentee ballots ar e rejected on account of the perfection requirement. But there is scant evidence in the r ecord that minority voters are more likely to cast
absentee ballots than white voters. It would theref ore be illogical to infer that rejecting absentee ballots for failure to accurately complete address and birthdate fi elds disproportionately affects minority voters without some other evidence that minority voters are less likely to fulfill those requirements. And, as discussed in more detail el sewhere, the vast major ity of absentee-ballot rejections are for reasons othe r than those challenged here.
The same is true of the limits that SB 205 places on poll workers. To be sure, the provision will impact the hypothetical early in-person absentee voter whose ballot would have been rejected in past elections but for now-pro hibited forms of assistance. Yet the record contains no evidence of how many, if any, voters r eceived such additional “assistance.” Because

9 Timberlake did not separately analyze in-per son absentee voting and mail-in absentee voting.Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 16

evidence of higher minority absentee -ballot usage is weak, and the record does not indicate that minority voters disproportionately benefited from assistance that is now proscribed, plaintiffs have not demonstrated a disparate impact.

On their other Section 2 claims , the plaintiffs fail to show that the challe nged provisions will have much of an impact on the right to vote at all. The district court reasoned that reducing the cure period from ten to seven days woul d burden illiterate voters and voters for whom travelling to cure their ballots presents logistical difficulties. Hypothetica lly speaking, a scenario
could exist where voters showed up in droves to correct absentee -ballot errors and to produce provisional-ballot ID during those three days. But that has not been the case in Ohio. In fact, the single election-board official w hose trial testimony the district court cited in support of its conclusion stated that in Hamilton County, Ohio ’s third most populous, “very few voters” cured their ballots during that three- day window. The record contains no evidence on the number of absentee or provisional voters who took advantage of the cure days eliminated by SB 205 and SB 216. A law cannot disparately imp act minority voters if its imp act is insignificant to begin
with.
Challenges to SB 216’s perfection requirement of provisional voters and its limitation on poll-worker assistance suffer from the same shortcoming. The conclusion that SB 216 disproportionately impacts minority voters is not borne out in the data. For the vast majority of provisional voters whose ba llots are rejected, no amount of he lp would change the result. The record contains provisional voting da ta for the 2008, 2010, 2012, 2014, and 2015 general elections. In every one of those elections, eighty to ninety percent of pr ovisional voters whose ballots were rejected either had failed to regi ster at all or voted in the wrong place. Placing a
minor check on election workers’ interactions w ith in-person voters has no impact on the vast majority of provision al-ballot rejections.
SB 216 has been in effect during the two mo st recent general elections. The provisional
ballots of 247 voters in 2014 and 373 voters in 2015 were rejected for fa ilure to provide an accurate birthdate or address. Respectively, th ese figures represented about five and three percent of rejected provisional ba llots—and less than one percent of all provisional ballots cast. What is more, the 2015 figure does not account fo r individuals whose 2014 ballots were rejectedNos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 17

for failure to register but who accurately comp leted the affirmation form and successfully registered for the next election. Presumably, so me of those voters would not have registered otherwise, which means that SB 216 has the effect of reducing the number of ballots rejected on the basis of nonregistration in fu ture elections. That impact he lps to counter the small impact that SB 216 does have. Given the negligible impact of SB 216’s perfection requirement on ballot rejection, the plaintiffs have not shown that the provision disp roportionately affects minority voters.
B. Literacy Test
Section 4 of the VRA provides that “[n]o citizen shall be denied” the right to vote “because of his failure to comply with any test or device.” 52 U.S.C. § 10501(a) (Supp. II Vol. III 2015). “Test or device” is define d as a requirement that, as a prer equisite to vote or register, a person demonstrate the ability to “read, write, u nderstand, or interpret any matter,” demonstrate “educational achievement” or “knowledge” of a ny subject, “possess good moral character,” or have others “vouch[]” for them. Id. § 10501(b).

The district court found that § 10501 includes a private right of action before concluding that the challenged provisions do not violate the statute. Even if a private right of action is permitted, we agree with the district court th at SB 205 and SB 216 do not impose a “test or
device” on Ohio voters.
The plaintiffs equate the requirement that absentee and provisional voters accurately complete address and birthdate fields with the “vague, arbitrary, hypertec hnical or unnecessarily difficult” tests cited by Congress as evidence of th e urgent need for the VRA. H.R. Rep. No. 89- 439, at 13 (1965). However, requi ring voters’ most basic biograp hical and personal information bears no similarity to selectively enforced voting tests whose “only real f unction” is to “foster
racial discrimination.” Ibid. ; see also id. at 12 (citing United States v. Louisiana , 225 F. Supp. 353, 358 (E.D. La. 1963) (three-judge panel findi ng a Louisiana Constitution requirement that registration applicants be able to read and “give a reasonable interpretation” of any clause of the
Louisiana or United States Constitution violat ed Fourteenth and Fifteenth Amendments), aff’d , 380 U.S. 145 (1965)); S. Rep. 89-162, pt. III, at 11–12 (1965) (cataloging cases ofNos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 18

“discriminatory misuse” of literacy tests and “good moral character” requirements). The address-and-birth-date requirements simply do not fall within the meaning of “test or device,” as used in the statute. 52 U.S.C. § 10501(b). To the extent that th e House Report censures “‘perfect form’ requirements,” no such prohibition appears in the text of the statute itself. Compare H.R. Rep. 89-439, at 13, with 52 U.S.C. § 10501. In these circumstances, the unambiguous language of the statute must prevail. See Rote v. Zel Custom Mfg. LLC , 816 F.3d 383, 394 (6th Cir. 2016) (heeding Supreme Court’ s “admonishment to courts not to add any unexpressed requirements to the la nguage of the statute” (quoting Keller v. Cent. Bank of Nigeria , 277 F.3d 811, 818 (6th Cir. 2002))).
To the extent that recording birthdate or address proves diff icult for some voters, Ohio explicitly permits election officials to assist thos e who are blind, disabled, or illiterate in marking
their ballots. See Ohio Rev. Code §§ 3505.24(B), 3505.181(F). The plaintiffs’ supposition that the stigma of illiteracy deters some voters from requesting assistance distracts from the focus of the inquiry—state action. To fill the address an d birthdate fields, voter s need not “demonstrate the ability” to read or write any more so than they do to otherwise complete a ballot.

C. Immaterial Error
The VRA provides that no one acting under co lor of law may “deny the right of any individual to vote in any election because of an error or omission” on a registration application or voting ballot if the error or omission “is not mate rial” in determining whet her the individual is qualified to vote. 52 U.S.C. § 10101(a)(2)(B) (Supp. II Vol. III 2015). A later subsection of § 10101 states that when any person has deprived another of “any right or privilege secured by subsection (a) . . . , the Attorney General may institute for the United States . . . a civil action or other proper proceeding for preventive relief.” Id. at § 10101(c).
We have held that the negative implicati on of Congress’s provisi on for enforcement by the Attorney General is th at the statute does not permit private rights of action. See McKay v. Thompson , 226 F.3d 752, 756 (6th Cir. 2000). Anot her circuit later reached the opposite
conclusion. See Schwier v. Cox , 340 F.3d 1284, 1294–96 (11th Cir. 20 03). It reasoned, in part, that the Supreme Court had found other VRA sec tions enforceable by private right of actionNos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 19

despite their provision for Attorney General enfo rcement and that before the Attorney General language was appended to the statut e, plaintiffs “could and did” bring enforcement actions under 42 U.S.C. § 1983. Id. at 1295.
“A panel of this court may not overturn binding precedent because a published prior panel decision ‘remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decisi on or this Court sitting en banc overrules the prior decision.’” United States v. Elbe , 774 F.3d 885, 891 (6th Cir. 2014) (quoting Salmi v. Sec’y of Health & Human Servs. , 774 F.2d 685, 689 (6th Cir. 1985)). McKay v. Thompson therefore binds this panel. The plaintiffs may not bring an action for a violation of § 10101(a).
V. Equal-Protection Claims
Three equal-protection questions are at issue on appeal: Whether the challenged provisions (1) unduly burden the right to vote; (2) result in a l ack of uniform standards; and (3) were enacted with a discriminatory purpose. Once again, we review the district court’s legal
conclusions de novo and factua l findings for clear error.

A. Undue Burden
1. Legal Standard
The certainty that every election law places at least some burden on individual voters demands that courts weigh that hindrance against the provision’s regulatory justification. On one hand, “voting is of the most fundamental signi ficance under our constitu tional structure.” Ill. State Bd. of Elections v. Socialist Workers Party , 440 U.S. 173, 184 (1979) . On the other, “[c]ommon sense, as well as c onstitutional law, compels the c onclusion that government must play an active role in structuring elections.” Burdick v. Takushi , 504 U.S. 428, 433 (1992). Acknowledging this tension, the Supreme Court has articulated a “flexible standard” to apply when considering challenges to state election law:
A court . . . must weigh “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate” against “the precise in terests put forward by the State asNos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 20

justifications for the burden imposed by its rule,” taking into consideration “the extent to which those interests make it ne cessary to burden the plaintiff’s rights.”

Id. at 434 (quoting Anderson v. Celebrezze , 460 U.S. 780, 789 (1983)).
In practice, the level of scrutiny into a challenged election law varies based on the severity of its constraint on voting rights. “[S] evere restriction[s]” must be “narrowly drawn to
advance a state interest of compelling importance.” Norman v. Reed , 502 U.S. 279, 289 (1992). At the other end of the spectrum, “minimally burdensome and nondiscriminatory” regulations inevitably result in “a le ss-searching examination.” Ohio Council 8 Am. Fed’n of State v.
Husted , 814 F.3d 329, 335 (6th Cir. 2016). For regulat ions that “fall[] somewhere in between the two extremes, ‘the burden on the plaintiffs is weighed against the state’ s asserted interest and chosen means of pursuing it.’” Ibid. (quoting Green Party of Tenn. v. Hargett , 767 F.3d 533, 546 (6th Cir. 2014)) (alteration omitted). As a gene ral matter, “important regulatory interests are generally sufficient to ju stify reasonable, nondiscrimi natory restrictions.” Anderson , 460 U.S. at
788.
In striking portions of SB 205 and SB 216, the district court considered the burdens that the provisions impose on NEOCH’s and CCH’s home less and illiterate members. Zeroing in on the abnormal burden experienced by a small gr oup of voters is problematic at best, and prohibited at worst. In Crawford v. Marion Cty. Election Bd. , 553 U.S. 181 (2008), the Supreme Court upheld an Indiana voter-ID law. The plaintiffs urged th e Court to consider the burden imposed on the “narrow class of voters” who could not afford or obtain a birth certification and had to return to the circuit court clerk’s office after voting. Id. at 200 (opinion of Stevens, J.). The lead opinion refrained from weighing the “s pecial burden” faced by “a small number of voters” because the evidence on the record gave “no indication of how common the problem is,” which made it impossible “to quantify . . . the magnitude of the burden.” Id. at 200, 202. A concurrence rejected outright the idea of measur ing the burden on a subset of voters. “[W]hat petitioners view as the law’s se veral light and heavy burdens,” it reasoned, “are no more than the
different impacts of the single burden that the law uniformly imposes on all voters.” Id. at 205 (Scalia, J., concurring in the judgment).Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 21

In any event, the district court erred by wei ghing Ohio’s regulatory interests against the burden that the challenged provisions unique ly place on homeless a nd illiterate voters. 10 Even under the controlling opinion’s more liberal appro ach to burden measuring, the record here is devoid of quantifiable evid ence from which an arbiter could ga uge the frequency with which this
narrow class of voters has been or will become disenfranchised as a result of SB 205 and
SB 216. We therefore consider the burden that the provisions place on all Ohio voters.

2. SB 205 and SB 216
Address and Birthdate Requirements. Requiring boards of electi ons to reject the ballots of absentee and provisional voters who fail to accurately complete birthdate and address fields directly and measurably disen franchises some voters. As discussed, see supra p. 16, in the 2014 and 2015 general elections, 620 provisional ballots were rej ected as failing to meet SB 216’s address and birthdate pe rfection requirements, out of a total of 16,942 rejections. Among over 860,000 domestic civilian absentee ballots cast in 2014 and 430,000 in 2015, 1378 ballots were reject ed in 2014, and 334 in 2015, for failure to comply with the similar provision in SB 205. 11

Considering the number of total ballots cast in a general election in Ohio, these figures are small. And yet, as demonstrated through voter declarations and the testimony of board officials, the formal rigidity of the challe nged requirements may leave no room for elections boards to make their own judgments on voter eligib ility. As a result, id entifiable voters may be disenfranchised based only on a te chnicality. For example, trans posing the locati on of the month and year numerals of a birthdate, writing the current date by mist ake, and inverting digits in an address have been cited by elections boards as reasons for automatic ballot rejection.
A facial challenge to a state la w fails “where the statute has a ‘plainly legitimate sweep.’” Wash. State Grange v. Wash. State Republican Party , 552 U.S. 442, 449 (2008) (quoting

10 Illiterate voters may request and receive assistance in marking their ballots from nearly “any person of the[ir] . . . choice,” including “two election officials of di fferent political parties.” Ohio Rev. Code. § 3505.24. Homeless voters may register their address as “a shelter or other location at which the person has been a consistent or regular inhabitant and to which the person has the intention of returning.” Id. § 3503.02(I).
11 In addition, 633 domestic civilian absentee ballots were rejected in 2014, and 346 in 2015, because the voter ID envelope “[c]ontains [i]n sufficiient [sic] [i]nformation.” Cf. Ohio Rev. Code § 3509.07(A).Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 22

Washington v. Glucksberg , 521 U.S. 702, 740 n.7 (1997) (Stevens, J., concurring in the judgments)). For SB 216, the inte rest in registering provisional voters ou tweighs the burden of completing the address and birthdate fields. Most provisional-ballot rejections occur in Ohio because the purported voter was not registere d. In 2012, a presidential-election year, over 20,000 provisional ballots were rejected for failure to register. Ohio uses the affirmation form to register the unregistered provisi onal voters who unsuccessfully tr y to cast ballots each year.
The additional fields also help elections boards positively identify provisional voters. For their ballots to be counted, pr ovisional voters must be located in a statewide database of registered voters. Predictably, entering a provisional voter’s name a nd the last four digits of their Social Security number into the database can result in multiple hits. Birthdate and address information can narrow the plausible registered vote rs and assist in confir ming an eligible voter’s right to vote (and vice versa). Ohio’s important interests in provisional -voter registration and identification eclipse the small burden of accura tely completing the two fields—a burden that actually impacts just a few hundred voters each el ection, an impact wholly in their own control.
However, we agree with the district court th at Ohio has made no such justification for mandating technical precision in the address a nd birthdate fields of the absentee-ballot identification envelope. Although th e burden is small for most voters, its impact is greater than that of SB 216, and none of the “precise in terests put forward by” Ohio justifies it. Burdick , 504 U.S. at 434 (citation omitted). Ohio first posits that the perfection requirement hampers “rare[]” attempts to cast others’ mail-in absentee ba llots. First Br. 30. Combatting voter fraud perpetrated by mail is undeniably a legitimate concern. See Purcell v. Gonzalez , 549 U.S. 1, 4 (2006) (per curiam). Yet some level of specificity is necessary to convert that abstraction into a definite interest for a court to weigh. The di strict court found that Ohio did not even “offer[] combatting voter fraud” as a relevant interest. Given the lack of any coherent fraud argument offered at trial, that conc lusion is understandable.
Moreover, Ohio’s argument collapses under scrutiny. Before SB 205, absentee voters
had to clear several hurdles to confirm their identity. In addition to presenting valid identification, a voter needed the signature on th e envelope to match the voter’s registration signature, and even then, the information in the identification envelope could be deemedNos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 23

“insufficient.” Ohio Rev. Code § 3509.07 (2013); see also id. §§ 3509.05–.06, 3511.09. Like all other ballots, those of ab sentee voters could be ch allenged “for cause.” Id. § 3509.07. Under some circumstances, certain errors in address or birthdate could well constitute “insufficiency.” SB 205 altered that provision, requiring boards to reject absentee ba llots that do not include an
accurate address and birthdate for the voter.
Even Ohio recognizes that the downside of re jecting mail-in absentee ballots for address errors overshadows any concern with address fa lsification. Ohio statute allows, and the Secretary has instructed, board s of elections to complete the address field on mail-in identification envelopes so that ba llots are not thrown out “for th [at] sole reason.” At bottom,
Ohio’s interest revolves around the “rare” instances where a fr audster manages to swipe the ballot of a registered absentee voter, forge the signature, and return the ballot to the board of elections with a copy of the voter’s identificati on, driver’s license number , or Social Security number, and would have gotten away scot free but for the troublesome birthdate requirement. What is more, Ohio does not explain why its in terest in preventing vo ter fraud by mail makes it “necessary to burden” the plaintiffs’ voting rights. Burdick , 504 U.S. at 434 (citation omitted). Before SB 205, boards were instruct ed to strike ballots if the identif ication envelope contained
“insufficient” information and had discretion to “challenge” absent voters “for cause.” Ohio Rev. Code § 3509.07 (2013). That provision gave boa rds more than sufficient flexibility to investigate birthdate erro rs for fraud without the heavy-handed requirement of ballot rejection on a technicality.

At trial, the district court was not presented with a shred of evidence of mail-in absenteevoter fraud. That absence of support is corrobo rated by ample testimony. Halfway through trial,
the court held a sidebar where it asked counsel for Ohio whether a fraud argument was “going to be a part of the presentation of . . . [Ohio’s] case in chief, . . . experts, [or] other witnesses.”
Counsel stated that the court “w [ould] hear testimony” about the interests motivating the passage of the bills, including fraud. Not only did that ne ver materialize, but, as is apparent from the record, there is no indication of a legitimate fra ud concern at all. The Assistant Secretary of State, responsible for managing statewide elections, affirmed upon cross-examination that the possibility of this particular voter fraud is “infinitesimal” and would not have been “anNos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 24

appropriate justification” for SB 205’s perfection requirement. None of the officials who testified from nearly a quarter of Ohio’s boards of elections were even asked whether requiring perfection on the birthdate fiel d would combat mail-in absentee- voter fraud. At the court’s own prodding, several answered questions related to fraud. The few w ho could relate instances of fraud identified none relating to th e specific interest now asserted. This suggests that the fraud
interest does not offset the burde n of technical perfec tion on the identification envelope’s address
and birthdate fields.

Ohio also asserts an interest in standardiz ing its identification-envelope requirements. Achieving uniform standards across eighty-eigh t autonomous county boards of elections is a commendable goal. A court weighing that intere st, however, must ask, “Standardization to what end?” For example, a standardi zed ballot may increase public confidence in the integrity of the electoral process. See Crawford , 553 U.S. at 235 (Souter, J., di ssenting). According to Ohio, SB 205’s perfection requirement “increases effi ciency and predictability.” First Br. 32.
In support, Ohio cites just two pieces of evidence. During his testimony, the Assistant Secretary of State stated that before the implementation of SB 205, the birthdate field was “a required element on the [identific ation envelope, but] was not a re quired element for the Board to determine the validity of the ba llot.” Although true, that statemen t does not address whether that distinction was thought by anyone to make election administration less efficient. Ohio also points to a report of the OAEO advising that requiring mail-in voters to complete the address and birthdate fields, among other measures, would “allow election officials to more efficiently process mail-in absentee ballots.” However, that document was silent with regard to in-person absentee ballots. Moreover, it was not a recommendation to reject ballots containing technical errors, and so cannot support the argument that a uniform rejection standard increases efficiency.
Nor does Ohio’s interest in uniformity “mak e it necessary to burden” the right to vote with a technical-perfection requirement. Burdick , 504 U.S. at 434 (citation omitted). Even before SB 205, Ohio law instructedboards of elections on the information to include in absenteevoter identificati on envelopes. See Ohio Rev. Code § 3509.04(B) (2013 ). It would seem that the simple act of amending that provision to more comprehensively describe the information that identification envelopes should c ontain would have been a less roundabout way to uniformity—Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 25

and would not have needlessly disenfranchised voters. In a ddition, Ohio publishes a lengthy
manual for election officials with extensive instru ctions on how to appl y its statutory election provisions. It includes a “Reasons to Reject an Absentee Ballot” section. Ohio could include instructions explaining the steps that officials should take to pos itively identify voters before determining that an identification envelope is su fficient or insufficient. Instead, the legislature
enacted a measure that forces elections boards to reject some identifiable ballots. We cannot find that Ohio’s stated interests outweigh the burden that the field-perfection requirement places on
absentee voters.

Limit on Poll-Worker Assistance. The burden imposed by demarcating the types of assistance that election officials may render vote rs is minimal. In most cases, poll-worker
assistance will not fix the errors that result in the rejection of absentee and provisional ballots. As discussed, most rejected provisional ballots were not counted because the applicant was not registered at all or tried to vote in a precinct where her or she was not registered. Domestic civilian absentee ballots were usually rejected just for being submitted late—sixty-three percent of rejected ballots in 2014 and over eighty perc ent in 2015. All voting requirements inevitably encumber some people more than others. Yet Ohio specifically ensures that voters at the greatest risk of making mistakes in marking their ba llots—blind, disabled, and illiterate individuals— receive help if it is requested. The onus is on the voter to make the request, but that hardly impinges the right to vote . Any burden is borne only by thos e who can but do not ask for help or make easily avoidable errors in marking their ballots.
Ohio’s legitimate interest in minimizing elec tion-official mistakes by ensuring that they are not overburdened and do not fill in others’ personal information justifies the limitation placed on poll-worker assistance. 12 Because Ohio asserts a legi timate interest, this minimally burdensome regulation does not amount to an unc onstitutional abridgment of the right to vote.

12 Although not argued by Ohio on appeal, states have an important interest in managing poll-workers’ interaction with voters to protect ballot secrecy and prevent coercion. See, e.g. , Burson v. Freeman , 504 U.S. 191, 206 (1992) (plurality opinion) (“[A]ll 50 States, together with numerous other Western democracies . . . [have] a secret ballot secured in part by a restricted zone around the voting compartments,” which “demonstrates that some restricted zone is necessary in orde r to serve the States’ compelling interests in preventing voter intimidation and election fraud.”).Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 26

Cure-Period Reduction. As discussed, on the basis of the record, reducing from ten to seven the number of days for correcting absent ee-ballot errors and pres enting provisional-ballot identification imposes a trivial burden on Ohio vote rs. There is no evidence of the magnitude of
the burden and at least one board o fficial testified that few voters even used the final three cureperiod days.
That minimal burden on voting is easily outweighed by Ohio’s interest in reducing the administrative strain felt by boards of elections be fore they begin to canvass election returns. The official canvass must begin eleven to fift een days after Election Day. Ohio Rev. Code. § 3505.32(A). The possibility of unforeseeable post-election issues thrust upon boards is a legitimate concern. Building in a three-day bu ffer between the cure period and the official canvass is a common-sense solution. Although, as the district court noted, none of the board
officials who testified indicated that the ten-day cure period inconvenienced them, a state certainly need not wait for an election issue to arise before enacting provisions to avoid it. See Munro v. Socialist Workers Party , 479 U.S. 189, 195–96 (1986). Fe deral law does require that voting equipment give voters the o pportunity to correct errors be fore their ball ots are cast and
counted. See 52 U.S.C. § 21081(a)(1)(A)(ii) (Supp. II Vol. III 2015). But no case mandates any particular length of time that st ates must provide after Election Day for voters to cure ballot errors. Given the negligible impact of the cu re-period reduction on voters, Ohio’s reasonable response to a foreseeable problem is not an undue burden.

B. Lack of Uniform Standards
A plaintiff may state an equal-protection claim by alleging that lack of statewide standards results in a system that deprives citize ns of the right to vote based on where they live. League of Women Voters of Ohio v. Brunner , 548 F.3d 463, 477–78 (6th Cir. 2008). The district court rejected the plaintiffs’ argument that the boa rds of elections used different standards in the two most recent general elections for determini ng whether to reject ab sentee and provisional
ballots that contained errors or omissions. We agree.
The plaintiffs presented uncontested evidence that, in determining whether to reject a given ballot, the practices of boa rds of elections can vary, and so metimes considerably. But thatNos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 27

does not address the central ques tion in a lack-of-uniform standa rds claim: whether Ohio lacks “adequate statewide standards for determining what is a legal vote.” Bush v. Gore , 531 U.S. 98, 110 (2000) (per curiam). Arguable differences in how elections boards ap ply uniform statewide standards to the innumerable perm utations of ballot i rregularities, although perhaps unfortunate, are to be expected, just as j udges in sentencing-guidelines case s apply uniform standards with arguably different results. In fact, that flexibility is part and parcel of the right of “local entities, in the exercise of their expertise, [to] devel op different systems for implementing elections.” Id. at 109. Despite differences in the local application of provisions concerni ng ballot rejection, the elections boards are guided by clear prescriptive st atewide rules that apply equally to all voters. Nor is there any indication that certain categor ies of provisional or ab sentee ballots received “preferential treatment.” Ne. Ohio Coal. for Homeless v. Husted , 696 F.3d 580, 598 (6th Cir. 2012); see also Hunter v. Hamilton Cty. Bd. of Elections , 635 F.3d 219, 236 (6th Cir. 2011). Thus, the district court correctly concluded that the plaintiffs did not prove arbitrary treatment.

C. Intentional Discrimination
Facially neutral laws can be motivated by invidious racial discrimination. Village of Arlington Heights v. Metro. Hous. Dev. Corp. , 429 U.S. 252, 266 (1977). Because of the possibility that discriminatory intent is an underlying motivation, co urts must undertake a “sensitive inquiry into such circumstantial and di rect evidence of intent as may be available.”
Ibid. Challengers need to show only that discri minatory purpose was “a motivating factor,” not necessarily the law’s “dominant” or “primary” purpose. Id. at 265–66.

In Arlington Heights , the Supreme Court articulated none xhaustive evidentiary factors to consider in determining whether official action was undertaken with a discriminatory purpose.
Those factors include:
“[T]he historical background of the decision, . . . particular ly if it reveals a series of official actions taken for invidious purposes”; “t he specific sequence of events leading up [to] the challenged decision”; “departures from the normal procedural sequence”; “substantive departures, . . . particularly if the factors usually considered important by the decisionmake r strongly favor a decision contrary to the one reached”; and the “leg islative or administrative history, . . . especially where there are contemporary statemen ts by members of the decisionmaking body, minutes of its meetings, or reports.”Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 28

Spurlock v. Fox , 716 F.3d 383, 397 (6th Cir. 2013) (quoting Arlington Heights , 429 U.S. at 267– 68) (alterations omitted).

The record does not reveal that SB 205 and SB 216 were enacted with discriminatory intent. As discussed, the evidence does not demonstrate that minority voters are disproportionately affected by the provisions. Nor did the legislature depart from normal procedural practices when it considered the provi sions for several months before their passage. Cf. N.C. State Conference of the NAACP v. McCrory , ___ F.3d ___, Nos. 16-1468, 16-1469, 16- 1474, 16-1529, 2016 WL 4053033, at *13 (4th Cir. July 29, 2016) (l aw passed with discriminatory intent in part due to legislature’s “eagerness,” after Shelby County held unconstitutional Section 5’s precl earance requirement, to “rush through the legislative process the most restrictive voting law North Carolina has s een since the era of Jim Crow”). In fact, the
basic contours of SB 205 or iginally appeared in a report of the bipartisan OAEO.
A racially tinged statement by one legislat or who allegedly asked during committee debate whether the General Assembly “should . . . be making it easier for those people who take
the bus after church on S unday to vote” is troubling. Cf. Ohio State Conference , 768 F.3d at 539 (“African Americans have come to rely on Sunday voting through ‘Souls to the Polls initiatives,’ in which churches have leveraged the transportati on they already provide to and from church to bring voters to EIP voting locations.”). But we ag ree with the district c ourt that on the whole,
the record does not show that the Gene ral Assembly acted with racial animus.

VI. Due Process
The Due Process Clause is implicated in “exceptional” cases where a state’s voting system is “fundamentally unfair.” Warf v. Bd. of Elections , 619 F.3d 553, 559 (6th Cir. 2010) (quoting League of Women Voters of Ohio , 548 F.3d at 478). Fundamental unfairness may occur, for example, if a state uses non-unifo rm procedures that result in significant
disenfranchisement and vote dilution. See League of Women Voters of Ohio , 548 F.3d at 478. “[G]arden variety election irre gularities,” however, do not prove fundamental unfairness. Griffin
v. Burns , 570 F.2d 1065, 1076, 1078–79 (1st Cir. 1978). The di strict court reject ed the plaintiffs’ fundamental-unfairness claim, and we affirm.Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 29

As discussed in response to the argument that Ohio’s voting system lacks uniform standards, discrepancies at the margins in how local boards of elections apply statewide provisions is not unusual. Those predictable divergences impact a small number of voters and do not amount to a fundamentally unfair voting system. Nor do the technical-perfection requirements that SB 205 and SB 216 impose on absentee and provisional voters rise to an exceptional level of unfairness comparable to gr ossly non-uniform procedur e or significant voter
disenfranchisement.
We also find unconvincing the appellees’ conten tion that the district court denied their procedural-due-process claim “without addressing its merits.” Second Br. 75. The district court clearly held that the alleged harm was “cause d by the portions of SB[] 205 and SB 216 that impose a completion requirement for the five fields, not the lack of process given when a ballot is rejected.” Ne. Ohio Coal. for the Homeless v. Husted , No. 2:06-CV-896, 2016 WL 3166251, at *43 (S.D. Ohio June 7, 2016) (emphasis adde d). We therefore dismiss this claim.

VII. Conclusion
We AFFIRM the entry of judgment for the plaintiffs on their e qual-protection undueburden claim as it relates to the requirement that boards of elections reject mail-in and in-person absentee ballots for failure to complete the iden tification envelope’s addr ess and birthdate fields with technical precision. Ther efore, we AFFIRM its permanen t injunction of the portions of SB 205 that amend Sections 3509.06(D) a nd 3509.07 of the Ohio Revised Code. See S.B. 205, 130th Gen. Assemb. (Ohio 2014), at 9–12.
To be perfectly clear, this remaining injunc tion does not impede the legitimate interests
of Ohio election law. The versions of S ections 3509.06(D) and 3509.07 that existed before the enactment of SB 205 (and that the injunction effectiv ely reinstates) were alto gether serviceable. Nothing in our opinion prevents election offi cials from rejecting absentee ballots whose identification envelopes contai n “insufficient” information. Ohio Rev. Code. § 3509.07 (2013). The Secretary can and should continue to instruct the boards of elections on implementing those provisions in order to further th e interest of uniformity and to provide guidance on the steps boards should take to identify absentee voters before deeming an identification envelopeNos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 30

“insufficient.” And, within the bounds of the Fo urteenth Amendment, the General Assembly has authority to modify its elections laws in the future. But in doing so, it must act to further important State interests if its proposed changes burden Ohioans’ right to vote.
We deeply respect the dissent’s recounting of important parts of the racial history of our country and the struggle for voting rights, and we agree that this hi story may always be appropriately borne in mind. Ho wever, that history does not without more determine the outcome of today’s litigation ov er voting practices and methods. The legal standards we must
follow are set out in the cases we discuss concer ning the standards embodied in the Fourteenth Amendment and Section 2 of the Voting Rights Act. With respect to the dissent’s discussion regarding factual findings, this opinion does not qua rrel with the district court over its recitation of the record or of any credibility determinations made by the district c ourt. Rather, our holding is that the district court’s legal conclusions from that record are in certain parts erroneous, as set forth in this opinion, and in light of other parts of the record that the court did not consider.
For reasons stated, we REVERSE the judgmen t of the district court on the remaining
undue-burden claims and the VRA Section 2 claims . We AFFIRM the en try of judgment for
Ohio on all other claims.Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 31

_________________ DISSENT

_________________ DAMON J. KEITH, concurring in part, disse nting in part. Demo cracies die behind
closed doors. Detroit Free Press v. Ashcroft , 303 F.3d 681, 683 (6th Cir. 2002). By denying the most vulnerable the right to vote, the Majority s huts minorities out of our political process.
Rather than honor the men and women whose murdered lives opened the doors of our democracy and secured our right to vote, the Majority has abandoned this court’ s standard of review in order
to conceal the votes of the most defenseless behind the dangerous veneers of factual findings lacking support and legal standards lacking pre cedent. I am deeply saddened and distraught by
the court’s deliberate decision to revers e the progress of history. I dissent.

In 2014, Ohio enacted Senate Bills 205 a nd 216, which (1) required county elections boards to reject the ball ots of absentee and provis ional voters whose iden tification envelopes or affirmation forms, respectively, contained an a ddress or birthdate that did not exactly match voting records; (2) reduced the number of po st-election days for absentee voters to cure identification-envelope errors, and the number of days for provisional voters to present valid identification, from ten days to seven days; and (3 ) restricted the ways in which poll workers can help in-person voters. Afte r conducting a twelve-day trial and authoring a 112-page opinion brimming with sound factual findings and legal c onclusions, the district court (Judge Algenon L. Marbley) justly held that all of the challeng ed provisions imposed an undue burden on the right to vote and violated plainti ffs’ equal protection rights.
In complete abandonment of th e clearly erroneous standard of review, the Majority displaces several of the distri ct court’s well-reasoned and s upported factual findings. The Majority’s decision to gut the fact ual findings of the district cour t and to advance legal standards without precedent in order to shut the most vu lnerable out of the political process must be subjected to the natural antiseptic of sunlight. The unfettered right to vot e is the bedrock of a free and democratic society—without it, such a so ciety cannot stand. This right is fundamental. It is the most valuable right a person posse sses, because without it, all other rights are meaningless. As history has shown time and time again, laymen and jurists alike have activelyNos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 32

worked to deny the right to vote to minorities, in both obvious and obscure ways. The Voting Rights Act (“VRA”), 1 sought to right this wrong by a llowing all citizens—unrestrained—to exercise their right to vote regardless of r ace. While the VRA and Equal Protection Clause sought to bring this nation forward, closer to a so ciety free of racial discrimination, today the Majority’s opinion takes us several steps back. Because the Majority has completely ignored the applicable standard of review and has instead engage d in its own fact fi nding and reweighing of the evidence in complete disregard for the clea rly erroneous standard of review, because the Majority has created a legal standard in contra diction to existing case law based on a concurring opinion and dictum, and because the Majority has dishonored the struggle for the right of the most vulnerable to vote, I dissent. I would in stead affirm the distri ct court in full.

BACKGROUND
A. Historical Background

1. The Martyrdom and Struggle for Equal Protection
The Majority’s actions must be viewed in full light of their historical context. The murders of countless men and women who struggled for the right to vote and equal protection
cannot be overlooked. The utter br utality of white supremacy in its efforts to disenfranchise persons of color is the foundation for the tragedy th at is the Majori ty’s effort to roll back the progress of history. I will not forget. I cannot forget—indeed America cannot forget—the pain, suffering, and sorrow of those who died for equal pr otection and for this precious right to vote. I add the following publicly available historical st atements to humanize the struggle for the right to be equal participants in the democratic proc ess. While the Majority aptly notes that these
historical statements do not dictate the outcome of this case, it is imperative that we assess the efforts to undermine the right to vote as an hi storical operative that did not begin with the Majority’s opinion and unfortunately will not end with it. 2

1 52 U.S.C.A. § 10301 et seq

. 2 I give full context to the legal analysis of the issues presented in this case as well as full historical contextualization of the facts. The fo llowing pictures and synopses cannot captu re the full horror of those who lost their lives in the quest for equal protection and voting rights . The following is a mere fraction of the martyrs of the struggle for equality. The assaults, rapes, murders, lynching, and utter travesty of the struggle for equality can neverNos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 33

be fully captured in words or pictures. The Southern Poverty Law Center sustains a memorial for these individuals, and much of the following information can be found on their website: https://www.splcenter.org/what-we-do/civilrights-memorial/civil-rights-martyrs (last visited September 12, 2016).
3 See K.C. Meckfessel Taylor, Marielle Elisabet Dirk x, William Mcintosh, W. Tucker & Carrington, CSI Mississippi: The Cautionary Tale of Mississippi’s Medico-Legal History , 82 Miss. L.J. 1271, 1272 (2013).
4 Paula C. Johnson, Voting Rights and Civil Rights Era Cold Cases: Section Five and the Five Cities Project , 17 Berkeley J. Afr.-Am. L. & Pol’y 377, 384 (2015).
5 Id

. In 1955, Reverend George Lee , an African American Baptist minister who had the temerity to found a local NAACP chapter in Humphreys County, Mississippi, urge d his congregation to vote. While the cause of his death is disputed, there is substantial evidence that he was murdered for his efforts. 3

In 1955, Lamar Smith was shot dead on the courthouse lawn by a white man in broad daylight while dozens of people watched. 4 The killer was never indicted. Smith had organized blacks to vote in a recent election. 5Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 34

6 Ronald Turner, Remembering Emmett Till , 38 How. L.J. 411, 415 (1995).
7 Id . at 417 (citing William Bradford Huie, The Shocking Story of Approved Killing in Mississippi , Look, Jan. 24, 1956, at 50).
8 Id . at 419.
9 Adam Nossiter, Murder, Memory And the Klan; A Special Report: Widow Inherits a Confession To a 36- Year-Old Hate Crime , N.Y. Times, Sept. 4, 1993, at 1, available athttp://www.nytimes.com/1993/09/04/us/murdermemory-klan-special-report-widow-inherits-confession- 36-year-old-hate.html?pagew anted=all (last visited September 6, 2016).
10 Anthony V. Alfieri, Retrying Race , 101 Mich. L. Rev. 1141, 1163 (2003). In 1955, Emmett Louis Till , a 14-year-old boy on vacation, reportedly flirted with a white woman in a store. 6 Three nights later, two men took Till from his bed, b eat him, shot him and dumped his body in the Ta llahatchie River. One of Till’s murderers reflected, “I just decided it was time a few people got put on notice. As long as I live and can do anything about it, niggers are gonna stay in their place. Niggers ain’t gonna vote where I live.” 7 An all-white jury declared the men innocent of murder. 8

In 1957, Willie Edwards Jr . was assaulted by several Klansmen who threatened to castrate him, took him to a bridge, and forced him to jump, 9 all for allegedly making advances toward a white woman. 10Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 35

11 Anders Walker, The Violent Bear It Away: Emmett Till and the Modernization of Law Enforcement in Mississippi , 46 San Diego L. Rev. 459, 492-93 (2009); see also Jack Greenberg, Brown v. Board of Education: An Axe in the Frozen Sea of Racism , 48 St. Louis U. L.J. 869, 877 (2004) (citing Jack Greenberg, Crusaders in the Courts: How a Dedicated Band of Lawyers Fo ught for the Civil Rights Revolution (1994)).
12 Walker , 46 San Diego L. Rev. at 493. 13 Paula C. Johnson, Voting Rights and Civil Rights Era Cold Cases: Section Five and the Five Cities Project , 17 Berkeley J. Afr.-Am. L. & Pol’y 377, 384 (2015).
14 Id

. In 1959, Mack Charles Parker , 23, was accused of raping a white woman. 11 Three days before his case was set for trial, a masked mob took him from his jail cell, beat him, shot him, and threw him in the Pearl River. 12

In 1961, Herbert Lee , who worked to register black voters, was killed by a state legislator who claimed self-defense and was never arrested. 13 Louis Allen, a black man who witnessed the murder, was later also killed. 14Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 36

15

Id. at 387.
16 Id.
17 Mitchell F. Crusto, The Supreme Court’s “New” Federalism: An Anti-Rights Agenda? , 16 Ga. St. U. L. Rev. 517, 572 (2000) (citations omitted).
18 Miles Johnson, A Postman’s 1963 Walk For Justice, Cut Short On An Alabama Road, NPR, April 14, 2013, available athttp://www.npr.org/2013/08/14/211711898/a-postmans-1963-walk-for-justice-cut-short-on-analabama-road (last visited September 6, 2016).
19 Id. In 1962, Cpl. Roman Ducksworth Jr. , a military police officer stationed in Maryland, was on leave to visit his sick wife when he was ordered off a bus by a police officer and shot dead. 15 The police officer may have mistaken Ducksworth for a “freedom rider” who was testing bus desegregation laws. 16

In 1962, Paul Guihard , a reporter for a French news service, was killed by gunfire from a white mob during protests over the admission of James Meredith to the University of Mississippi. 17

In 1963, William Lewis Moore , a postman from Baltimore, was shot and killed during a one-man march agai nst segregation. 18 Moore had planned to deliver a letter to the governor of Mississippi urging an end to intolerance. 19Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 37

20 Margaret M. Russell, Cleansing Moments and Retrospective Justice , 101 Mich. L. Rev. 1225, 1236 (2003).
21 Donald Q. Cochran, Ghosts of Alabama: The Prosecution of Bobby Frank Cherry for the Bombing of the Sixteenth Street Baptist Church , 12 Mich. J. Race & L. 1 (2006).
22 Id

. 23 Tim Padgett and Frank Sikora, The Legacy of Virgil Ware, Time Magazine, Sept. 22, 2003, available at http://content.time.com/time/magazine/article/0,9171,48 5698,00.html (last visited September 6, 2016).
24 Id

. In 1963, Medgar Evers , who directed NAACP operations in Mississ ippi, was leading a campaign for integration in Jackson when he was shot and killed by a sniper at his home. 20

In 1963, Addie Mae Collins, Denise McNair, Carole Robertson, and Cynthia Wesley were getting ready for church services when a bomb exploded at the Sixteenth Street Baptist Church in Birmingham, Alabama, killing all four of the school-aged girls. 21 The church had been a center for civil rights meetings and marches. 22

In 1963, on the same day as the bombing killing four girls, Virgil Lamar Ware , 13, was riding on the handlebars of his brother’s bicycle when white teenagers fatally shot him. 23 The white youths had come from a segregationist rally held in the aftermath of the Sixteenth Street Baptist Church bombing. 24Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 38

25 Anthony Hall, A Stand for Justice-Examining Why Stand Your Ground Laws Negatively Impact African Americans , 7 S. Region Black L. Students Ass’n L.J. 95, 112 (2013) (citation omitted).
26 Id

. 27 William D. Henderson, Demography and Desegregation in the Cleveland Public Schools: Toward A Comprehensive Theory of Educational Failure and Success , 26 N.Y.U. Rev. L. & Soc. Change 457, 557 (2001) (citing Paul Shepard, A Martyr Remembered: 30 Years Ago, Rights Activist Bruce Klunder Died Beneath a Bulldozer Here , Plain Dealer (Cleveland), Apr. 7, 1994, at A1).
28 Janis L. McDonald, Heroes or Spoilers? The Role of the Media in the Prosecutions of Unsolved Civil Rights Era Murders , 34 Ohio N.U. L. Rev. 797, 817, 826 (2008) (citation omitted).
29 Id

. In 1964, Louis Allen , who witnessed the murder of civil rights worker Herbert Lee, endured years of threats, jailings, and harassment in Mississippi. 25 He was making final arrangements to move north on the day he was killed. 26

In 1964, Rev. Bruce Klunder was among the civil rights activists who protested the building of a segregated school. Klunder was crushed to death when a bulldozer backed over him. 27

In 1964, Henry Hezekiah Dee and Charles Eddie Moore were killed by Klansmen who believed the two were part of a plot to arm blacks in the area. 28 Their bodies were found during a massive search for the missing civil rights workers Chaney, Goodman, and Schwerner, listed immediately below. 29Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 39

30 Paula C. Johnson, Voting Rights and Civil Rights Era Cold Cases: Section Five and the Five Cities Project , 17 Berkeley J. Afr.-Am. L. & Pol’y 377, 384 (2015).
31 Id. 32 Michal R. Belknap, The Vindication of Burke Marshall: The Southern Legal System and the Anti-CivilRights Violence of the 1960s , 33 Emory L.J. 93, 102-03, 129, 132 (1984).
33 Paula C. Johnson, Voting Rights and Civil Rights Era Cold Cases: Section Five and the Five Cities Project , 17 Berkeley J. Afr.-Am. L. & Pol’y 377, 386 (2015).
34 See id. at 386-89. In 1964, James Earl Chaney, Andrew Goodman, and Michael Henry Schwerner, young civil rights workers, were arrested by a deputy sheriff and then released into the hands of Klansmen who had plotted their murders. 30 They were shot, and thei r bodies were buried in an earthen dam. 31

In 1964, Lt. Col. Lemuel Penn , a Washington, D.C., educator, was driving to D.C. from Georgia when he was shot and killed by Klansmen in a passing car. 32

In 1965, Jimmie Lee Jackson was beaten and shot by state troopers as he tried to protect his grandfather and mother from a trooper attack on civil rights marchers. 33 His death led to the voting rights march and the eventual passage of the Voting Rights Act. 34Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 40

35 Id. at 384.
36 Id.
37 Id. at 384.
38 Id

. 39 Anthony V. Alfieri, Retrying Race , 101 Mich. L. Rev. 1141, 1164 (2003).
40 Id. In 1965, Rev. James Reeb , a Unitarian minister from Boston, wa s one of many white clergymen who joined the Selma marchers after state troopers attacked protestors at the the Edmund Pettus Bridge. 35 Reeb was beaten to death by white men while he walked down a Selma street. 36

In 1965, Viola Gregg Liuzzo , a housewife and mother from Detroit, drove alone to Alabama to help with a voting rights march in Selma. 37 She was ferrying marchers between Selma and Montgomery when she was shot and killed by a Klansmen in a passing car. 38

In 1965, Oneal Moore was the first black deputy sheriff for th e Washington Parish Sheriff’s Office in Varnado, Louisiana. 39 Moore was killed while on patrol. Mississippi police arrested Klansman Ray McElveen. Louisiana prosecutors extradited Mc Elveen and indicted him for murder but released him within weeks for insufficient evidence and dropped all charges. 40Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 41

41 David J. Krajicek, Black Man Killed For Trying To Use Whites-Only Bathroom In Alabama In 1966 Set Off Protests That Echo Today, Daily News, May 21, 2016, available at http://www.nydailynews.com/news/national/black-man-killed-bathroom-alabama-1966-article-1.2645287 (last visited September 6, 2016).
42 Joseph W. Gill, Mississippi Justice at Last: The Trials an d Convictions of Beckwith, Bowers and Killen , Prosecutor, July/August 2007, at 26, 28.
43 Id.
44 Id. In 1966, Samuel Leamon Younge Jr. , a student civil rights activis t, was fatally shot by a white gas station owner following an argument over segregated restrooms. 41

In 1966, Vernon Ferdinand Dahmer , a wealthy black businessman, offered to pay poll taxes for those who could not afford the fee required to vote. 42 The night after a radio station broadcasted Dahmer’s offer, his home was firebombed. 43 Dahmer died later from severe burns after holding off the Klansmen with his shotgun long enough for his family to escape. 44Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 42

45 Janis L. McDonald, Heroes or Spoilers? The Role of the Media in the Prosecutions of Unsolved Civil Rights Era Murders , 34 Ohio N.U. L. Rev. 797, 809 (2008).
46 Id

. 47 Paula C. Johnson, Voting Rights and Civil Rights Era Cold Cases: Section Five and the Five Cities Project , 17 Berkeley J. Afr.-Am. L. & Pol’y 377, 384 (2015).
48 Id

. 49 Id

. In 1966, Ben Chester White , a sixty-seven year old black man, was murdered by three members of the Klan who wanted to lure Reverend Martin Luther King, Jr. to the Natchez, Mississippi area. 45 An all white male jury acquitted one of his killers. 46

In 1967, Wharlest Jackson , the treasurer of his local NAACP chapter, was one of many blacks who received threatening Klan notices at his job. 47 After Jackson was promoted to a position previously reserved for whites, a bomb was planted in his car. 48 It exploded minutes after he left work one day, killing him instantly. 49Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 43

50 Anders Walker, The Violent Bear It Away: Emmett Till and the Modernization of Law Enforcement in Mississippi , 46 San Diego L. Rev. 459, 499 (2009).
51 Bass, J. (n.d.). The Orangebu rg Massacre, available at http://www.jackbass.com/_u_the_orangeburg_massacre __u__25512.htm (last visited September 6, 2016).
52 Henry J. Richardson III, From Birmingham’s Jail to Beyond the Riverside Church: Martin Luther King’s Global Authority , 59 How. L.J. 169, 171 (2015).
53 Id. In 1967, Benjamin Brown , a former civil rights organizer, was at a protest when he was hit by stray gunshots from polic e who fired into the crowd. 50

In 1968, Samuel Ephesians Hammond Jr., Delano Herman Middleton, and Henry Ezekial Smith were shot and killed by police who fired on student dem onstrators at the South Carolina State College campus. 51

In 1968, Dr. Martin Luther King Jr. , a Baptist minister, was a major architect of the Civil Rights Movement. 52 He was assassinated as he prepared to lead a demonstration in Memphis. 53Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 44

2. The Election of the United States’ First Black President
Another important historical occurrence that cannot be separated from efforts to abridge minorities’ right to vote is the election of the Unite d States’ First Black President. On February 10, 2007, then-Senator Barack Obama of Illinois, an African American, announced his candidacy for the United States Presidency. 54 On November 4, 2008, President Obama became the first
African-American President of the United States. President Obama not only captured the presidency, but under his leadership, the Democrat ic party gained control of the House, the
Senate and the White House for the first time since 1995. 55 On April 4, 2011, President Obama announced his reelection for the presidency. 56 On November 6, 2012, President Obama was reelected President of the United States. 57

B. Factual Background

1. The Parties 58

Plaintiff, “The Northeast Ohio Coalition fo r the Homeless” (“NEOC H”), advocates on behalf of the Cleveland homeless, airing and addressing issues related to their lack of housing, employment, and health care. About seventy percent of NEOCH’s in-person homeless applicants are African American. Promoting voting among its members, and among the homeless county-wide, is central to NEOCH’s mission, and NEOCH’ s executive director, staff, and volunteers expend substant ial resources on voting activitie s in even-numbered years. Executor Director Brian Davis “spends as much as 80 hours per w eek around the voting

54 Adam Nagourney & Jeff Zeleny, Obama Formally Enters Presidential Race , New York Times, Feb. 11, 2007.
55 Id.
56 Chris Cillizza & Emi Kolawole, President Obama Announces Reelection Bid , Washington Post, April 4, 2011.
57 David A. Fahrenthold, Obama Reelected As President , Washington Post, November 7, 2012.
58 The following facts are taken from the district court opinion. Ohio Coal. for the Homeless v. Husted , No. 2:06-CV-896, 2016 WL 3166251, at *1 (S.D. Ohio June 7, 2016). As stated i nfra , the Majority has failed to establish that any of the district court’ s factual findings are clearly erroneous. By way of reference, I incorporate all of the district court’s factual findings in this dissent. I have highlighted many of those findings here; however, I direct attention in particular to the district court’s findi ng regarding the Senate Factors, which I also incorporate herein. Husted , 2016 WL 3166251, at *24-32.Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 45

registration deadline on such activities, and one part-time NEOCH staff person devotes 20 hours per week to early voting turnout efforts.” Because of the challenged laws, NEOCH would “no longer provide blank cards to its members to vote by mail, but will instead focus [on] . . . driving people to the polls to vote, which will divert drivers and vehicles from doing other work on behalf of the organization . . . .” This will also require more financial resources.
In describing the impact of the loss of voting to the NEOCH constituency, the district court made the following findings of fact:
Were NEOCH’s members unable to vote, th eir bargaining power vis-à-vis elected officials would be diminished, whic h would in turn diminish NEOCH’s effectiveness at advocating on their behalf , frustrating its mission and exposing an already vulnerable populat ion to further government al neglect. The homeless constituents of NEOCH and CCH face challe nges that hinder them from asserting their own rights, including me ntal illness and/or addiction, difficulty maintaining a regular address or phone number, limite d access to transportation, and illiteracy or lack of education. They also find it challenging to gain entrance to courtrooms and public buildings due to lack of ID, and many homel ess people have a negative relationship with the judicial system or hesitate to get involved in litigation to assert their rights because they are more focused on meeting their immediate needs.

Husted , 2016 WL 3166251, at *7 (c itations omitted).

Of the NEOCH homeless members who have vot ed in primary elections, about eight vote in the Democratic primary for each one who votes in the Republican primary. Id. In describing the impact of SB 205 and SB 216, the district court made the following findings of fact:
[E]ight to ten percent of those living in shelters across Cuyahoga County are absolutely illiterate, and the majority re ad at only a fourth-grade level. Davis feared that the complexity of th e form, along with SB 205’s provisions demanding that voters fill ou t the required fields completely and accurately . . . increased the risk of NEOCH’s members being disenfranchised. In his twenty years working with the homeless, Davis has noticed that homeless persons have pervasive and profound problems filling out th e forms. Not being able to read or fill out forms correctly is embarrassing and humiliating for many of NEOCH’s members, and they hesitate to ask for help. NEOCH’s practice with other government forms, such as those relati ng to Social Security disability and Medicaid benefits, is to read the forms aloud and fill them out on the homeless person’s behalf as a matter of course.Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 46

Husted , 2016 WL 3166251, at *7 (c itations omitted).
Plaintiff, Columbus Coalition for the Ho meless (“CCH”), advocates for homeless people
in Columbus. Sixty percent of homeless people in shelte rs in Columbus are African American. Because of the challenged laws, CCH will explain new voting requirements to homeless persons at meetings, publishing articles about the requirements, and train its members to educate other homeless persons.
Plaintiff, Ohio Democratic Party (“ODP”), is a political party consisting of 1.2 million members; it seeks to advance the in terests of the Democratic Party. 59

Defendant Secretary of the Stat e of Ohio functions as Ohio’s chief election officer. Ohio Rev. Code §§ 3501.04, 3501.05. The State of Ohio is an Intervenor.
2. Voting in Ohio
Absentee Voting. Since 2006, all registered voters have the option to vote absentee without any excuse. To receive an absentee ballot, a voter must provide to the Board of the county in which he or she will vote an application consisting of: (1) the voter’s driver’s license number; (2) the voter’s last four digits of thei r social security number (“SSN-4”); and (3) an approved form of identification. If these requirements are met, the voter receives an absentee ballot; if these requirements are not met, th e voter is notified of the deficiency.
A voter may do “in-person absentee voting”—i .e., vote in-person at their county Board during certain days and hours—or , “mail-in absentee voting.” When mailing the form to the Board, the voter must sign and include in the e nvelope an affirmation declaring the voter is eligible to vote, and if the voter did not provi de a driver’s license number or SSN-4, the voter must provide an acceptable form of identification or current state or federal documents that show
the name and address of the voter. If there is an error in any of th e five fields, the Board mails a Form 11-S, specifying the type of error and in forming the voter that the ballot will not be counted unless certain steps ar e taken—namely, returning the Form 11-S by a certain time.

59 The Service Employees International Union (“SEIU”) is also a plaintiff in this matter. SEIU joined NEOCH in initiating the original actio n against the Secret ary in 2006.Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 47

Provisional Voting. Voters who cannot c onfirm eligibility—and so cannot cast a regular ballot—can complete a provisional ballot. This allows the voter to ca st provisionally, “subject to
later verification.” This type of voting is available to several categories of voters.
3. Challenged Laws
SB 205 - changes to absentee voting procedures
SB 205 mandates that an ID envelope is cons idered incomplete if the voter does not fill out the five fields of required information (“five -fields requirement”): (1) name; (2) residence address; (3) date of birth; (4) signature; and (5 ) some form of ID, which includes the types of acceptable ID required for the abse ntee ballot application form. If these requirements are not met, the voter will receive a written notice informin g them of the nature of the defect and that further information must be provided for the ballo t to be counted. Before enactment of SB 205,
the information contained in the five fields was merely requested, not requi red. Pursuant to SB 205, if the information is missing, th e ballot “shall not be counted.”
The information must be provided no later th an the seventh day afte r the election. This opportunity to cure—i.e., “cure period”—was long er before the enactmen t of SB 205; voters had ten days rather than seven days to furnish the information.
SB 216 - changes to provisional voting procedures

Before enactment of SB 216, vot ers were required to provid e only their names, IDs, and signatures in the provisional ballot affirmation form. Pursuant to SB 216, provisional voters must also provide the date of birth and current address. SB 216 also requires vo ters to print their names on the provisional ballot envelope. Sect ion 3505.182(F) of the provision already imposed a “completeness requirement.” Section 3505.181(F) pr ovides that persons f illing out provisional ballots may receive help, but only if they declare to an election official that they are unable to fill
out the ballot due to blindness, disabilit y, or illiteracy.
4. The Lead-Up to SB 205 and SB 216
Following the 2010 election, control of the Ohio House of Representatives switched from the Democratic to the Republican Party. “Rather quickly” after that change in leadership, HouseNos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 48

Republicans introduced two bills: (1) a bill to require all Ohioans to show a photo ID when voting and (2) House Bill 194 (“HB 194”), an e xpansive election-law bill that included “a
number of restrictions on voti ng, including the restrictions that we see in [SBs 205 and 216].” Representative Kathleen Clyde, Ohio General Assemblyperson, tes tified that the debate over HB 194 was “very partisan and hostile” and “very quick.” HB 194 was ready for the Governor’s signature within two months of its introduction, which Represen tative Clyde testified marks a significantly shorter time period than usual for the passage of legi slation of such complexity.
Husted , 2016 WL 3166251, at *13.
In August 2012, in an unprecedented move, the Oh io legislature voted to repeal HB 194 after hundreds of thousands of Ohioans signed pe titions to place it on the ballot for a statewide
referendum in November 2012. Sixteen other bills proposing voti ng restrictions were introduced in the 2013-2014 General Assembly, eight of which passed. One bill was passed to shorten the window to gather signatures for referenda, which made it more difficult for citizens to put a
referendum on the ballot. Another bill was passed making it easier to purge voters from the registration rolls. Senate Bill 238, which eliminated the first week of the early voting period,
also was enacted. Other bills were introduced, but not pa ssed, which would have limited voting in the following ways: shorteni ng the early voting peri od to 14 days; eliminating early voting hours; limiting the mailing of absent ee ballot applications to voters and preventing the paying of return postage on absentee ballot envelopes; instituting a photo-ID requirement; and requiring state universities to provide in-state tuition rates to students if they provided those students with ID that they needed to vote.
None of the proponents of SB 205 cited voter fraud as a ju stification for the bill. Husted , 2016 WL 3166251, at *13. During the floor debate of SB 205, in contrast to most proposed legislation, there was no data or testimony offere d about the need for the measures proposed in
SB 205. Id. During committee debate, Representative Matt Huffman, speaking in favor of SB 205, asked “should we really be making it easier fo r those people who take the bus after church on Sunday to vote.” Id. With respect to both SB 205 and SB 216, Democratic legislators spoke about their concerns that the pr ovisional and absentee ballots of African-American voters would be thrown out disproportionately. Id. at *14.Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 49

As to the cure period, one Board official tes tified that before the challenged laws went into effect, voters did come in during the eighth, ni nth, and tenth days of the cure period to cure their provisional and absentee ballots. Because the Board can receive absentee ballots up until ten days after Election Day, yet the cure period is only seven days, some voters to whom the Board sends a Form 11-S notifying them of their n eed to cure their ballot will not receive it in
time to do so. Id. at *17.
5. Information Requirements
The vast majority of NEOCH’s individual hom eless members plan to participate in the 2016 general election. Many of CCH’s members also plan to vote. Many of the organization’s members are illiterate, barely literate, and/or ment ally ill. A CHH witness testified that without assistance, a homeless person could not complete the entire form a nd that due to the complexity and amount of print on the form, some homele ss people would just tear it up and say, “you know, to hell with it.” Forms that are, in the words of one Board official, “pretty complex,” with “a lot of wording, a lot of stuff crammed into” them, can confuse even educated, literate voters.
6. Prohibition Against Poll-Worker Assistance

The district court found th at the prohibition against pol l-worker assistance burdens persons with low literacy, particularly if they are embarrassed to reveal their illiteracy due to the stigma it entails. Plaintiffs introduced ample evid ence that many of their members fall into this category and that illiteracy or low literacy levels are prevalent among the homeless. Homeless voters suffer disproportionately from disabilities , including mental illn ess, which can also hamper their ability to fill out forms. About a third of the homeless individuals with whom
NEOCH works have a mental disabili ty, forty-five to fifty percent read at a fourth -grade level, and eight to ten percent are completely illiterate. They may write poorly and have handwriting that is difficult to read or, due to mental illne ss, they struggle to focus on basic tasks without help. All of these issues combine to create difficu lties for homeless voters in filling out forms
without assistance like the absentee ID envel ope and the provisional ballot affirmation. Moreover, NEOCH Executive Director Brian Davis testified that in his experience with voter mobilization of homeless people in 2014, Board sta ff members were more hesitant to engageNos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 50

with voters and offer help when it appeared to be necessary and that homeless voters have been more likely to make mistakes because of the lack of help. Secretary Husted failed to conduct any review or testing of the effect of the provisional ballot affirmation or the absentee identification envelope on voters with low lite racy, despite a suggestion to do so from the League of Women
Voters. In sum, the district cour t concluded that many homeless people face vexing and profound obstacles in exercising th e basic right to vote, and the prohibition against poll-worker assistance is likely to exacerbate the problem.

ANALYSIS
A. The Majority Applies the Wrong St andard of Review for Factual Findings
By applying the wrong standard of review, the Majority abandons its role as a court of appellate review and play s the role of the trier of fact. I cannot join this flawed approach.
“On an appeal from a judgment entered afte r a bench trial, [this court] review[s] the
district court’s . . . c onclusions of law de novo

. ” Lindstrom v. A-C Prod. Liab. Trust , 424 F.3d 488, 492 (6th Cir. 2005). “Mixed qu estions of law and fact are also subject to de novo review.” T. Marzetti Co. v. Roskam Baking Co. , 680 F.3d 629, 633 (6th Cir. 2012) (citing Thoroughbred Software Int’l, Inc. v. Dice Corp. , 488 F.3d 352, 358 (6th Cir. 2007)). A district co urt’s findings
of fact are reviewed for clear error. Lindstrom , 424 F.3d at 492. “A finding of fact will only be clearly erroneous when, although there may be some evidence to support the finding, ‘the reviewing court on the entire eviden ce is left with the definite and firm conviction that a mistake
has been committed.’” Roskam Baking Co. , 680 F.3d at 633 (quoting United States v. Darwich , 337 F.3d 645, 663 (6th Cir. 2003) ). “If the district court’s account of the evidence is plausible in light of the entire reco rd, this court may not reverse that ac counting, even if c onvinced that, had it been sitting as trier of fact, it would have weighed the evidence differently.” Id. (quoting Harlamert v. World Finer Foods, Inc. , 489 F.3d 767, 771 (6th Cir. 2007)). “This is so even when the district court’s findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts.” Id. (quoting Anderson v. City of Bessemer City , 470 U.S. 564, 574 (1985)).Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 51

“In reviewing factual findings for clear error, ‘the reviewing court must give due regard to the trial court’s opportunity to ju dge the witnesses’ credibility.’” Calloway v. Caraco Pharm. Labs., Ltd. , 800 F.3d 244, 251 (6th Cir. 2015) (quoting Fed. R. Civ. P. 52(a)(6)). “[This court]
cannot find that the district court committed clear error where there are two permissible views of the evidence, even if we would have weighed the evidence differently.” Id. (quoting King v.
Zamiara , 680 F.3d 686, 694 (6th Cir. 2012)).
Here, the district court took great lengths to make well reasoned and supported factual findings. Indeed, the district court’s findings of facts we re the product of several years of litigation and a twelve-day bench trial . The findings alone span ove r fifty pages in length. The findings are supported by statisti cal, empirical, and testimonial evidence after research was conducted regarding thousands of voters over seve ral years of voting cycles. These findings of fact are critical to analyzing the claims brought pursuant to th e Voting Rights Act and the Equal
Protection Clause. Some of the most relevant fi ndings of the district court are as follows:

 Across all even-numbered election y ears, minorities use provisional ballots more often than whites, and in presidential election years, the absentee ballots and provisional ballo ts of minority voters are more likely to be rejected than those of white voters.

 African-Americans were hindered from participating in the political process.

 Ohio has a history of racia lly discriminating voting laws.

 Racially polarized voting in Ohio is extensive.

 There are racialized appeals in politics.

 African-Americans are still not represen ted well in the most important and visible elected statewide posts.

 There is a lack of responsiveness to the particularized needs of AfricanAmerican voters.
Yet, the Majority largely ignores these findi ngs and instead applies a de novo standard of review. While the Major ity asserts that it is not applying a de novo standard of review, careful review of the Majority opinion reveals that it in deed does. For instance, the Majority took note
of the district court’s conclusion that “African -American voters are more likely than white voters to have their absentee or provisional ballots re jected.” “A district court’s conclusion that a challenged electoral practice has discriminatory eff ect is a question of fact subject to review forNos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 52

clear error.” Ortiz v. City of Philadelphia Offic e of City Com’rs Voter Registration , 28 F.3d 306, 308-09 (3rd Cir. 1994) (citing Thornburg v. Gingles , 478 U.S. 30, 79 (1986)). Yet, the Majority disagreed with this factual finding merely because it sees the r ecord differently. The Majority fails to demonstrate (or even asse rt) that the district court’s factual findings are not “plausible in light of the enti re record.” See Roskam Baking Co. , 680 F.3d at 633 (“If the district court’s
account of the evidence is plausible in light of the entire record , this court may not reverse that accounting, even if convinced that, had it been sitting as trier of fact, it would have weighed the evidence differently.”) (emphasis added). The Ma jority did exactly what the Supreme Court has repeatedly said we cannot do, “reverse the finding of the trier of fact simply because it . . . would have decided the case differently.” See Anderson , 470 U.S. at 573. The clear error standard of review “plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply
because it is convinced that it would have decided the case differently.” Id. We must be mindful that because we are a court of appellate revi ew, we do not decide factual issues de novo. See id. “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” 60 Id. at 574.
Because the standard of review is the lens through which courts analyze a particular issue, the Majority’s application of the incorrect standard infects its entire analysis. I cannot join the Majority in its blatant disregard for the standards that guide this court.
B. Because the Majority applied the wr ong standard of review – engaging in a de

novo review of the facts – and because the district court did not clearly err in finding that SB 205 and 216 disparately impacted African American voters, the district court’s findings of fact and le gal conclusions on Plaintiffs’ VRA claims should be affirmed. The Supreme Court has instructed that the Vo ting Rights Act “should be interpreted in a manner that provides ‘the broade st possible scope’ in combating racial discrimination.” Chisom

60 Clear error review also applies “to the district court’s finding that the [regulations impose] . . . a burden on African Americans’ right to vote in Ohio.” Ohio Democratic Party v. Husted , No. 16-3561, 2016 WL 4437605, at *17 (6th Cir. Aug. 23, 2016) (Stranch, J., dissenting) (citing OFA v. Husted , 697 F.3d 423, 431 (6th Cir. 2012) (concluding that the district court did not clearly err in finding that “early voters, who have disproportionately lower incomes and less education than election day voters,” were bu rdened by challenged regulation)). Here, the district court concluded that “demanding perfect, or near-perfect, adherence to the five-field requirement on ballots imposes a significant burden for homeless voters, who are some of society’s most vul nerable members.” This conclusion should not be disturbed absent clear error.Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 53

v. Roemer , 501 U.S. 380, 403 (1991) (quoting Allen v. State Bd. of Elections , 393 U.S. 544, 567 (1969)). In vote-denial cases, cour ts conduct a two-part analysis. See League of Women Voters of N.C. v. North Carolina , 769 F.3d 224, 240 (4th Cir. 2014). Firs t, a court determines whether a practice or procedure has a disp arate impact on a minority group. See Thornburg v. Gingles , 478 U.S. 30, 44 (1986). Second, if it finds disp arate impact, the court assesses whether the “electoral law, practice, or structure interacts with social an d historical conditions to cause an inequality in the opportunities enjoyed by black and white voter s to elect their preferred representatives.” Id . at 47. In applying the test, the court considers “the totality of circumstances.” 52 U.S.C. § 10301(b).
1. Disparate Impact

Here, the district court did not commit clear error in finding “SB 205 and SB 216 have a disproportionate impact on African-American voters in Ohio, creating greater risk of
disenfranchisement of African -Americans than whites.” Husted , 2016 WL 3166251, at *47. The district court further concluded that “[t] he burdens imposed on vot ers by the five-field requirement, the prohibition on po ll-worker assistance, and the reduced cure period fall more heavily on African-Americans than whites.” Id.
The Majority contravenes a clearly erroneous standard of review by reweighing and reassessing the evidence to reach the conclusion that African American’s are not disparately impacted by the new legislation. After years of litigation, a twelve-day tr ial, and painstakingly combing the record, the district court found that Dr. Timberla ke’s data on disparities in provisional and absentee ballot usage and rejection rates reveal that higher minority population share is correlated to higher ra tes of absentee ballot rejection and provisional ballot usage and rejection. Husted , 2016 WL 3166251, at *47. In support of its conclusion, the district court cited the following findings of fact:
[T]he Court credits Dr. Timberlake’s findings that: (1) in the presidential election years of 2008 and 2012, where minority tu rnout was higher than during typical midterm elections, minorities’ absent ee ballots were rejected at a higher rate than whites ’; (2) in 2008, 2010, 2012, and 2014, minoriti es cast provisional ballots at a higher rate than whites; [This finding is also corroborated by studies upon which Dr. Timberlake relied that showed that African-American voters use provisionalNos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 54

ballots at a higher rate than white voters nationwide. ( See Timberlake Rebuttal Rpt., P-1195 at PTF-243.)] and (3) in 2008, 2010, and 2012, minorities had higher rates of rejection of provisional ballots than whites.

Husted , 2016 WL 3166251, at *48 (emphasis added).

The district court therefore concluded that “because of the passage of the challenged laws, African-American voters are more likely th an white voters to have their absentee or provisional ballots rejected.” Id. Despite the district cour t’s well-reasoned findings, the Majority reinterprets and reweighs the evidence to conclude that Dr. T imberlake’s findings do not support the conclusion that minorities are di sparately impacted by th e challenged laws.
In so doing, the Major ity makes much of the decrease in the use of absentee ballots in the
2012 and 2014 elections. However, again the Majority avers where the district court directly addressed the argument in a manner that was not clearly erroneous. Totally disregarding the district court’s factual determinations and explana tions, the Majority discounts the district court’s explanation for the decrease in absentee ballots : “Plaintiffs presented evidence that the gubernatorial election was significantly less competitive in 2014 than in 2010, that overall
turnout was lower in 2014 than 2010. Husted , 2016 WL 3166251, at *48. Given this plausible explanation, the district court did not clearly err.

Further, under either standard of review, the Majority’s anal ysis still falls short. The Majority’s reasons for rejecting the district co urt’s factual findings are unavailing because the reasons suffer from at least three major analytical flaws. First, the Ma jority misinterprets the evidence. Second, the Majority fa ils to apply a totality of the circumstances standard. Third, the Majority errs in its conclusi on regarding the undue burden.
First, the Majority misinterprets the eviden ce. For example, the Majority reasons as
follows:
[T]here is scant evidence in the record th at minority voters are more likely to cast absentee ballots than white voters. It w ould therefore be ill ogical to infer that rejecting absentee ballots for failure to accurately complete address and birthdate fields disproportionately a ffects minority voters without some other evidence that minority voters are less likely to fulfill that requirement. And . . . the vastNos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 55

majority of absentee-ballot rejections are for reasons other than those challenged here.
By relying on the “scant evidence” that minor ity voters are more likely to cast absentee ballots than white voters, the Majority again misses the mark. While evidence that minorities avail of a voting practice more frequently than whites can support a Section 2 claim, it is not a
necessary component for such a claim; minority voters may only show that they are more likely to have their ballots rejected than white voter s because of the new requirements, which means they have “less opportunity than” white vot ers to exercise thei r right to vote. See Chisom , 501 U.S. at 395.
Second, the Majority applies the wrong legal test by considering the impact of each individual legislative change, rather than cons idering the disproportionate impact that the new Ohio voting requirements have on minorities as a whole. The Majority engages in a piecemeal freeze frame approach to the evidence finding that each new requirement alone in a vacuum does not meet the standard for disparate impact. Ev en faced with evidence that minority absentee ballots are rejected more frequently than white absentee ballots, the Majority asserts that this distinction means nothing unless there is “some other evidence” that minority voters are less likely to correctly fill out the birthdate and ad dress requirements. The Majority’s requirement that the plaintiff must establis h the disproportionate impact of each requirement imposes too great a burden. This approach does not comport with Sectio n 2’s mandate to consider the “totality of the circumstances.” Indeed, at least one circuit has cau tioned against the very approach the Majori ty takes here. See League of Women Voters of North Carolina v. North
Carolina , 769 F.3d 224, 245 (4th Cir. 2014).

In League of Women Voters , the challenged house bill contained several new “electoral
mechanisms.” Id. at 242. That house bill, among other things, “imposed strict voter identification requirements, cut a week off of ea rly voting, prohibited local election boards from keeping the polls open on the fi nal Saturday afternoon before elec tions, and eliminated same-day voter registration.” Id. at 228. The district court analyzed each challenged electoral mechanism separately. Id. at 242. But the Fourth Circui t criticized the district court for “inspecting the parts of [the] [bill] as if they existed in a vacuum.” Id. at 242. Specifically, the district court “failed toNos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 56

consider the sum of those parts and their cumula tive effect on minority ac cess to the ballot box.”
Id. “Doing so is hard to square with Section 2’s mandate to look at the ‘ totality of
circumstances .’” Id. (emphasis added) (quoting 52 U.S.C. § 10301(b)). We should be mindful that “a panoply of regulations, each apparently defensible when considered alone, nevertheless have the combined effect of severely restricting partic ipation . . . .” Id. (quoting Clingman v.
Beaver , 544 U.S. 581, 607–08 (2005) (O’Connor, J., conc urring in part and concurring in the judgment)). The Majority’s approach create s the incentive for state legislatures to pass
numerous electoral mechanisms so that courts are forced to put on blinders when it comes to understanding the combined effect of these mechanisms.
Third, the Majority errs in its conclusion regarding the undue burden. The Majority
states that no undue burden exists because there was no evidence that voters received additional poll-worker assistance before the new requirements. However, disparate impact does not require such exact mathematical quantif ication. It is enough that ther e is a high likelihood of such assistance being needed given the interplay of structural inequalities with the challenged provisions as the district cour t correctly found under the governi ng standard. The Majority has not and cannot cite any legal pr ecedent for such exacting sta ndards, numbers, or data—nor should any be required. The Majo rity acknowledges that race is not recorded on ba llots, but uses this absence of required information to make th e self-invalidating argume nt that finding racial impact is impossible. This deft maneuver agai n contravenes the standard of review. Such reasoning and stealth of hand sets a very dangerous precedent.
I, therefore, dissent from the Majority’s findi ng that the district court erred in finding that the Plaintiffs satisfied the first prong of thei r vote denial claim—disparate impact—and would
affirm.

2. Social and Historical Conditions
Furthermore, the district court’s findings of fact with respect to the second prong—social and historical conditions—were a product of the di strict court’s careful application of the so-Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 57

called “Senate” factors or “ Gingles ” factors. 61 The factors from Thornburg v. Gingles , 478 U.S. 30, 79 (1986) “might be probative” of a Section 2 violation. See Michigan State A. Philip Randolph Inst. v. Johnson , No. 16-2071, 2016 WL 4376429, at *7 (6th Cir. Aug. 17, 2016). The
factors include:
(1.) the extent of any history of official discrimination in the state or political subdivision that touc hed the right of the members of the minority group to register, to vo te, or otherwise to participate in the democratic process; (2.) the extent to which voting in the elections of the state or political subdivision is racially polarized; (3.) the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, antisingle shot provisions, or other vot ing practices or procedures that may enhance the opportunity fo r discrimination against the minority group; (4.) if there is a candidate slati ng process, whether the members of the minority group have been de nied access to that process; (5.) the extent to which members of the minority gr oup in the state or political subdivision bear the e ffects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectiv ely in the political process; (6.) whether political campaigns have been characterized by overt or subtle racial appeals; (7.) the extent to which members of the minority group have been elected to public office in the jurisdiction; (8.) whether there is a significant lack of responsiveness on the part of elected officials to the partic ularized needs of the members of the minority group; and (9.) whether the policy underl ying the state or political subdivision’s use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.

61 “[T]he Supreme Court has al so endorsed factors (“the Gingles factors”) enunciated by Congress to determine whether [disparate] impact is a product of curren t or historical conditions of discrimination such that it violates Section 2.” Veasey v. Abbott , No. 14-41127, 2016 WL 3923868, at *17 (5th Cir. July 20, 2016); see also Michigan State A. Philip Randolph Inst. v. Johnson , No. 16-2071, 2016 WL 4376429, at *13, n.2 (6th Cir. Aug. 17, 2016).Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 58

See Gingles , 478 U.S. at 36–37. The district court made findings on all but the fourth factor.
I summarize below.
Analyzing factors one and three together, the district court noted the strong history of “Ohio’s racially discriminatory voting laws.” Although the district court noted the history of Ohio’s racially discriminatory voting practices fr om several decades ago, it also discussed recent discriminatory bills passed after the 2008 election.

As to the second factor, the district court not ed that exit polls from Ohio voters in the 2012 presidential election suggest significant and substantial patt erns of racially polarized voting. “Approximately, 41% of white voters and 96% of African-Americans reported voting for
President Barack Obama—an enormous differential.”

As to the fifth Senate fact or, the district court noted the barriers faced by African Americans to participation in the political process. Indeed, the district court noted that persistent levels of discrimination faced by African Americans in “employment, housing, income,
education and health.”

As for factor six, the district court found that there are racialized appeals in politics in Ohio. Such appeals “serve to discourage or di ssuade minority voters an d prospective candidates by reinforcing the message that they simply do not belong in the political process and/or by mobilizing white voters in a particular directio n by playing on insidious, sometimes explicit and sometimes implicit, stereotypes.” The district court further c ited as examples racialized statements made by public officials and referred to disparaging commercials.

Nor was the district court convinced that there was minority representation in Ohio (factor seven). As an example, no African American pr esently holds the position of Governor, Lieutenant Governor, Attorney General, Auditor, Secretary of State, and State Treasurer. African Americans have occupied each of these pos itions only five times in the history of the
State. Until recently, and for the first time in sixty years, the Governor’s twenty-six-person cabinet was entirely white.Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 59

As to factor eight, the distri ct court found that not many of the “socioeconomic disparities have improved in recent years,” demonstra ting Ohio’s lack of responsiveness to the particularized needs of African-American Ohioans. Disparities in unemployment have remained steady as well. Finally, as to factor nine, the district c ourt found that Ohio’s primary justification for the challenged laws at issue is that the they improve “election administration,” but those justifications were tenuous.
Because Ohio does not challenge any of the di strict court’s factual findings pursuant to Gingles on appeal, those factual findings are binding on this panel. McElwee v. Wharton , 7 F. App’x 437, 438 (6th Cir. 2001) (“The district cour t’s unchallenged factual findings . . . are binding on this Court.”) (per curiam); see also Shields v. Reader’s Digest Ass’n, Inc. , 331 F.3d 536, 542 (6th Cir. 2003) (“[B]ecause [the] [p]lain tiff has not directly challenged the district
court’s factual conclusions . . . all factual controvers ies are deemed abandone d on appeal and the
district court’s factual findi ngs are hereby upheld.”).
While the Majority never reaches the issue because it holds that Plaintiffs’ Section 2 claim fails in its infancy, a careful review of the district court’s fact ual findings pursuant to Gingles reveals that the challenged practice is “caused by or linked to ‘social and historical
conditions’ that have or curre ntly produce discrimination agai nst members of the protected
class.” See Michigan State A. Philip Randolph Inst. v. Johnson , No. 16-2071, 2016 WL 4376429, at *7 (6th Cir. Aug. 17, 2016) (“The essence of a § 2 claim is that a certain electoral law, practice, or structure interact s with social and historical condi tions to cause an inequality in the opportunities enjoyed by black and white voters to elect thei r preferred representatives.” (quoting Thornburg v. Gingles , 478 U.S. 30, 47 (1986))). Accordingly, I would affirm the district court’s holding with respect to the Section 2 Voting Rights Act claim.

Furthermore, I would affirm the district c ourt’s findings with respect to both prongs of the vote denial claims as they apply to the re strictions on poll workers and the reduced time to cure. In support of its findings of vote denial on the poll worker restrict ions and the reduced time to cure, the district court stated the following:
Because low literacy levels are also correlated with substandard education (Timberlake Tr., Vol. 5 at 73), and th e Court has credited Dr. Timberlake’sNos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 60

findings that African-Americans suffer from lower educational attainment than whites in Ohio, the Court concludes that African-Americans would also suffer from higher costs associated with the fi ve-field requirement and the prohibition on poll-worker assistance because they would face disproportionately more challenges filling out the forms. B ecause African-Americans move more frequently than whites, they may be more likely to be forced to vote provisionally. ( Id. at 67-68; see also Hood Tr., Vol. 10 at 121, 124.) They are also more likely to be homeless. (Davis Tr., Vol. 4 at 186.) And because they are more likely to have inflexible schedules or lack access to a car, they are more likely to be burdened by a shorter cure period fo r absentee and provisional ballots. (Timberlake Tr., Vol. 5 at 61 -62.) All of these effect s of discrimination against African-Americans combine to create an inequality in th eir opportunities to participate in the political process.

Husted , 2016 WL 3166251, at *52.
Given these structural inequalities and the impa ct of the poll worker restrictions and the shortened cure period, the distri ct court did no t clearly err.
C. The Majority Fundamentally Misunders tands the Concept of Disparate Impact
Additionally, the Majority f undamentally misunderstands the concept of disparate impact. A particular practice ha s a disparate impact on persons of a protected class when that practice has a “disproportionate” impact on the members of the protected class. See, e.g. , Alexander v. Local 496, Laborers’ Intern. Union , 177 F.3d 394, 419 (6th Cir. 1999) (“In a socalled ‘disparate impact’ case, the plaintiffs need not prove that th e defendant intended to discriminate; instead, plaintiffs must prove that a particular [] practice, although neutral on its face, has caused a disproportionate adverse effect on a protected group.”) (emphasis added); Chrisner v. Complete Auto Transit, Inc. , 645 F.2d 1251, 1257 (6th Cir. 1981).
In some instances, after simply counting the number of persons affected by the new Ohio
voter identification la ws, without making any comparisons between minority and non-minority voters to assess the disproportionality of those numbers, the Majority concludes that the voting practices in Ohio do not have a disparate im pact because only a small number of voters are affected by the new laws. Disproportionality, by de finition, requires assessing racial disparities.
See Alexander , 177 F.3d at 419 (noting that “statistical evidence is not abso lutely esse ntial in proving a disparate impact case,” but there “must be proof of disparity usi ng the proper standardsNos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 61

of comparison”). By relying on the sheer number of voters aff ected by the law in isolation, without making any relevant comparisons, the Major ity fails to engage in any disparate impact analysis at all. The Majority merely engaged in a counting exercise that gets us nowhere in terms of analyzing the discriminatory impact of a rule or practice.
Next, the Majority concludes that “[a] law ca nnot disparately impact minority voters if its impact is insignificant to begin with.” The text of the Voting Rights Act itself proves this
statement to be false. Section 2 of the Votin g Rights Act provides, in relevant part, that a
violation is established if:
. . . based on the totality of circumstances , it is shown that the political processes leading to nomination or el ection in the State or polit ical subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.

Chisom v. Roemer , 501 U.S. 380, 395 (1991) (quoting Sect. 2, Voting Rights Act). Tellingly, the Majority cites no legal author ity for the proposition that in order for a practice to be discriminatory, its “impact” must also be “signifi cant.” Quite simply, a vi olation of Section 2 of the Voting Rights Act does not turn on whether people are being disc riminated against in “significant” numbers, it turns on whether minor ities have “less opportunity than” non-minorities

to vote. See id. 62 Moreover, although the ballots of minorities and the homeless may be insignificant to the Majority, they are not insignif icant to the basic principles of the VRA, which does not require a certain number of affected persons, but look s instead at the impact on minorities as compared to non-minorities.
D. The Majority Applies the Wrong Legal Standard for the Equal Protection Claim
With respect to the Equal Protection Clause claim, I agree with the Majority’s implicit rejection of Ohio’s argument that rational-basis review applies. I further agree that the
Anderson/Burdick balancing test applies instead. But the Majority’s application of the test

62 Further, the impact of SB 205 and 216 was certainly significant enough for the Ohio legislature to take action, for legislators to invest the time and energy in getting the laws passed, in defending a claim in a twelve-day trial, and absorbing the time of this court on appeal. The Majority’s claim that the impact of the new legislation is insignificant is belied by reality.Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 62

cannot be reconciled with Sixth Circuit precedent. The Majority takes issue with the district
court’s consideration of the burdens imposed by the challe nged provisions on NEOCH’s and CCH’s homeless members. The Majority relies in part on Justice Scalia’s concurrence in Crawford v. Marion Cty. Election Bd. , 553 U.S. 181 (2008), which states that “what petitioners view as the law’s several light and hea vy burdens are no more than the different impacts of the single burden that the law uniformly imposes on all voters.” See Crawford , 553 U.S. at 205 (Scalia, J. concurring in judgm ent) (second emphasis added). The Majority then proceeds to “consider the burden that the provisions place on all Ohio voters.” (Emphasis added).
The Majority’s approach is incorrect. In Crawford , a plurality of the Supreme Court held that an Indiana statute that required citizens vot ing in person on election day or casting in person a ballot before election day was constitutional. Crawford , 553 U.S. at 185, 204. We have previously held that Justice St evens’ opinion is controlling for Marks 63 purposes, see Obama for
America v. Husted , 697 F.3d 423, 441 n.7 (6th Cir. 2012) (“ OFA ”), and Justice Stevens, quite simply, did not make the same assertion that Justice Scalia made. See also Ohio State Conference of N.A.A.C.P. v. Husted , 768 F.3d 524, 544 (6th Cir. 2014), vacated sub nom. Ohio State Conference of The Nat. Ass’n For Th e Advancement of Colored People v. Husted , No. 14- 3877, 2014 WL 10384647 (6th Cir. Oct. 1, 2014) (“A majority of the justices in Crawford either did not expressly reject or in fact endorsed the idea that a burden on on ly a subgroup of voters could trigger balancing review under Anderson–Burdick .”).

In Crawford , a plurality of the Supreme Court acknowledged that, although for most voters it is not a substantial burden to comply with a photo ID requirement, a “somewhat heavier burden may be placed on a limited number of persons . . . includ[ing] elderly persons born out of State, who may have difficulty obtaining a birth certificate[,] . . . homeless persons[,]” and others. 553 U.S. at 198-99. Although the Crawford Court rejected the plai ntiffs’ argument that the law should be enjoined on th e basis of the burden to that smaller group of voters, it did so
because the record in that case did not contain evidence of the specific burdens imposed on those vulnerable groups. Id . at 201-02. Because the record was virtually devoid of evidence that

63 Marks v. United States , 430 U.S. 188, 193 (1977) (“When a fr agmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurre d in the judgments on the narrowest grounds.”)Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 63

would have allowed the Court to measure the “ma gnitude of the burden on this narrow class of voters or the portion of th e burden imposed on them that is fully justified,” id . at 200, the Court considered only the burden on all Indiana voters, which it determined was only “limited.” Id . at
203.
That the Majority here has decided to pluck one line from Justice S calia’s concurrence to identify the appropriate legal test for analyzin g Plaintiffs’ equal-protec tion claim, is deeply misguided. The Majority, as a result, applie s the wrong standard. Under the Majority’s approach, no longer must we inquire as to how a voting regulation affects different groups of people—something I thought was the cornerstone of equal-protection jurispru dence. Instead, we must inquire whether a voting regulation burdens everyone , and only when it does, will that regulation be deemed unequal . This conclusion defies both logic and common sense.
Even if simple logic did not counsel agains t the Majority’s appro ach, then our circuit precedent surely does. See OFA , 697 F.3d at 431. In OFA , the challenged regulation in effect reduced the number of days availabl e for in-person voting by three days. Id. This court
concluded that the district cour t did not clearly err in finding that “early voters, who have disproportionately lower incomes an d less education than election da y voters,” were burdened by the challenged regulation. Id. Put another way, this court studi ed the impact of the challenged law on certain groups. See id. Quite simply, despite the Majority’s assertions that a law must impact everyone for it to violate the Equal Protection Clause, Crawford does not dictate or mandate such an analytical framework.

In sum, I would use the Anderson/Burdick balancing test to ex amine whether Ohio’s interests outweigh the burdens impo sed on Ohioan homeless individuals 64 on the basis of the three new requirements: (1) the birthdate and ad dress forms requirement; (2) the reduction in the cure period; and (3) the restrictions on poll-worker assistance. As to the first requirement, the Majority and I are in agreement that the address and birthdate forms requirement violates the Equal Protection Clause, even though I disagree w ith the Majority’s anal ytical approach in

64 The district court found that approximately 60% of the homeless persons in shelters in Columbus, Ohio are African American and approximat ely 70% of NEOCH’s in-person homele ss applicants are African American.Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 64

reaching that conclusion. Nevertheless, becaus e the first requirement is not a point of contention, I focus on the remaining two.
Reduction in cure period. The district court ruled that the reduction of the cure period, for absentee voters, would be “especially burde nsome for voters with lo w literacy who may need to seek assistance in reading the Form 11-S 65 and filling it out before returning it to the Board.” Thus, “[l]imiting the window in which they may cure a deficient ballot imposes a significant burden on homeless, impoverish ed, and illiterate voters.” 66 Husted , 2016 WL 3166251, at *39. For provisional voters, “the opportunity to cure . . . ballots is limited to providing ID that they failed to provide when they voted . . . .” Id . at 18.

Ohio characterizes the limitation as an “inc onvenience” that does not constitute a burden. Ohio cites numerous testimonies indicating that few individuals avail of the cure-period in any case, and further, “Plaintiffs identified no person harmed by the three-day difference.” In proffering an interest, Ohio states that the re duction serves to provide a “workable stopping point
before election officials must begin the official canvas” eleven days after Election Day. The district court was not pe rsuaded by the interest. “Of the twenty-one Board officials who testified at trial, not one indicated that he or she had experien ced any inconvenience or increased cost during the pre-2014 ten-day cure period, or stated that the c ounty Board needed extra time
between the conclusion of the cure period and the start of the canva ss to address any particular
matters.” No board official mentioned any “specific task[] that needed to be conducted between the end of the cure period a nd the beginning of the canvass.”
Ohio contends that because the cure period wa s rarely used, reduction of that period was justified. But that argument cuts the other way—if th at period was rarely us ed, then it would not matter if the cure period remained at ten days rather than at seven days. Given that no board official testified that a “specific task” needed to be conducted before the canvas, it appears that Ohio has not struggled to cope with a ten-day cu re period. In these circumstances, Ohio has not

65 If there is an error in any of the five fields on an absentee ballot, the Board mails a “Form 11-S,” specifying the type of error and informing the voter that the ballot will not be counted unless certain steps are taken—namely, returning the Form 11-S by a certain time.
66 Notably, it is unclear what channels the homeless individuals would use to receive the Form 11-S in the mail in time to cure the defect because these individuals are often transient with no fixed address.Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 65

shown that its interest outwe ighs the burdens imposed. See OFA , 697 F.3d at 434 (“With no
evidence that local boards of elections have stru ggled to cope with early voting in the past, no evidence that they may struggle to do so during the November 2012 el ection, and faced with several of those very local board s in opposition to its claims, th e State has not shown that its regulatory interest in smooth elec tion administration is ‘i mportant[.]’”). It should be noted that defendant bears the burden of justification. Because the defendant failed to meet even the minimum threshold of that burden, the di strict court did no t clearly err.
The Majority says that there is no need for Ohio to wait for a problem to arise in the last three days of the cure period in order to act; however, that analys is misses the point. If there was no problem in the last three days, the action lacks any justification under any standard of review. Lacking any justification, the district c ourt’s findings were simply not erroneous.
Prohibition against poll-worker assistance . We must “weigh the character and magnitude of the asserted injury to the” protected rights against “the prec ise interests put forward by the State as justifications for the burden imposed by its rule.” See Burdick v. Takushi , 504 U.S. 428, 434 (1992). The dist rict court made careful fact ual findings that Plaintiffs’ constituents were illiterate, barely literate, or suffering from disability or mental illness, which limited their ability to complete basic voting-relate d tasks. Although it is tr ue that illiterate and disabled workers may receive assistance in filling out the form, an official testified that “Board
staff members were more hesitant to engage with voters and offer help when it appeared to be necessary.” Thus, in light of the district court’s cred iting this testimony, the district court’s finding that the limitation of poll-worker assist ance was burdensome is not clearly erroneous.
The district court then found lack ing the State’s justifications for preventing poll workers from assisting voters who do not affirmatively ask for help because they are illiterate or disabled.
Husted , 2016 WL 3166251, at *39. The di strict court’s findings we re not clearly erroneous.
A close reading of the Majority’s opinion reveals that the Majority’s calibrations are misaligned. On the one hand, the Majority conclude s that because there is no evidence of voter fraud, Ohio’s asserted interest in protecting against voter fraud does not outweigh the burden placed on the voters by the address and birthdat e requirements. Yet in the same breath, the Majority concludes that “Ohio’s legitimate intere st in minimizing election-official mistakes byNos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 66

ensuring that they are not overburdened and do not fill in others’ personal information justifies the limitation placed on poll-worker assistance” even though there is no evidence that the poll
workers were overburdened or that there were problems with others filling in personal
information. 67

Moreover, the Majority reiterates that the impact on voters is small and insignificant. However, the Majority fails to cite any lega l precedent that mandates a certain mathematical quantum because none is required. Furthermore, the complete lack of sensitivity and unbridled privilege with which the Majority exercises its vi ew of the trivial is exactly what led to the constitutional and statutory protections at issue in this case. Still further, as I have stated throughout this dissent, the stakes of these proceedings are hardly sm all, insignificant , or trivial; instead, the impact is worthy of countless hour s of the Ohio congressional time, energy, and efforts in not only passing these restrictive measur es, but defending them. The rush to set forth and pass these measures belies any claim that what is at stake is slight, minor, unimportant, trifling, trivial, insignifi cant, inconsequential, negligible, nuga tory, or infinitesimal. Similarly, the Majority continues to point out that the vast Majority of challenged ballots are struck for reasons that do not involve SB 205 and 216; howev er, our inquiry is the impact on those voters whose ballots SB 205 and 216 does disparately affect.

In sum, because I conclude that the bur dens of the challenged laws outweigh the government’s purported interests under the Anderson/Burdick balancing test, I would affirm the district court’s judgment in favor of Plaintiffs with respect to th e Equal Protection Clause claim.

CONCLUSION
The Majority applies the wrong legal test s, misapprehends th e basic concept of disproportionality, and applies th e wrong standard of review. Mo st disturbingly, the Majority
substitutes its own view of the record for the carefully deci ded and supported factual findings of the district court. As the Supreme Court ha s cautioned, a “reviewing court oversteps the bounds of its duty . . . if it undert akes to duplicate the role of the lower court.” Anderson , 470 U.S. at

67 While the state “need not justify its laws with ‘elaborate, empirical verification,’” Citizens for Legislative Choice v. Miller , 144 F.3d 916, 924 (6th Cir. 1998), the state does ne ed to assert a real and “precise” interest against which the citizens’ right to vote must be weighed. See Burdick v. Takushi , 504 U.S. 428, 434 (1992).Nos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 67

573. “The trial judge’s major role is the determ ination of fact, and with experience in fulfilling that role comes expertise.” Id. at 574. “[P]arties to a case on app eal have already been forced to concentrate their energies and resources on pers uading the trial judge that their account of the facts is the correct one; requiring them to persuade three more judges at the appellate level is requiring too much.” Id. at 575. Today, the Majority disr egards the Supreme Court’s wellestablished principles and substi tutes its own view of the record for the carefully decided and supported factual findings of the district court.
The birth of this Nation was founded upon the radical principle that we, as a people, would govern ourselves. And voting is the ultimat e expression of self-government. Instead of making it easier for all persons, unrestrained and unfe ttered, to exercise this fundamental right to vote, legislators are making it harder. States are audaciously nullifying a right for which our ancestors relentlessly fought and—i n some instances—even tragically died. From that struggle came the Equal Protection Clause of the Fourt eenth Amendment, and later, the Voting Rights Act. It is this court’s responsibility to enforce both the Constitution and the statute, and thereby safeguard this precious right to vo te. In my opinion, the Majority ha s failed to do just that. The Majority takes the position that unl ess a rule affects non-minorities, it does not run afoul of the Equal Protection Clause of the Fourteenth Amendm ent. This baffling position distorts the Equal
Protection Clause so much so that the cl ause becomes unrecognizable, unenforceable, and fundamentally, unequal. For years, states have b een (both stealthily and overtly) erecting hurdles to the right to vote. And the votes of those w ho are actually able to surmount those hurdles are often diluted through Gerrymande ring. These states’ actions of implementing rules and redrawing districts in an effort to restrict minor ities’ access to the ballots is another reminder that history repeats itself. It is yet another reminde r that many people hold th e misguided belief that only the privileged majority should be gran ted access to political power and adequate representation.
With every gain in equality, there is often an equally robust and reactive retrenchment. We must never forget that consta nt dialectical tension. For every action, there is a reaction. The Majority’s decision is a fateful reminder that we can never fool ourselves into believing that we have arrived as a nation. Our decision today, an d more decisions like this one, will undoubtedlyNos. 16-3603/3691 Northeast Ohio Coalition, et al. v. Husted, et al. Page 68

shape the future of this Nation because deciding who gets to vote inev itably affects who will become our leaders—a determination that is gr ounded in the principles long cherished and long pursued by our Founding Fathers. This is exactly why so many are actively seeking to etch away at the right to vote in assembly halls across this nation. These efforts are hardly insignificant or negligible. They are, for their proponents, necessary and highly de liberate. It is my hope that when future generations look back on these decisi ons, they conclude that we were on the right side of history. But today I fear that we were not.

For these reasons, I cannot concur with my colleagues in full. In the interest of clarity, I would affirm the district court and permanently enjoin the enforcement of portions of SB 205 and 216 that: require boards to reject the ballo ts of absentee and provisional voters who do not accurately complete the address and birthdate fields; reduce the cure period to seven days; prohibit most forms of poll-worker assistance; and require provisiona l voters to print their names
on the affirmation form.