Effie STEWART, et al., Plaintiffs-Appellants, v. J. Kenneth BLACKWELL, et al., Defendants-Appellees, 444 F.3d 843

MARTIN, J., delivered the opinion of the court, in which COLE, J., joined. GILMAN, J. (pp. 880-97), delivered a separate dissenting opinion. OPINION BOYCE F. MARTIN, JR., Circuit Judge. The plaintiffs are African-American and Caucasian voters residing in Hamilton, Montgomery, Sandusky, and Summit Counties in Ohio.

They filed their complaint on October 11, 2002 alleging that: (1) the use of unreliable, deficient voting equipment, including the punch card ballot, in some Ohio counties but not other counties violates the Equal Protection Clause of the Fourteenth Amendment; (2) the use of error prone voting equipment deprives voters of their due process right to have their votes counted accurately; and (3) the use of punch card voting systems in Hamilton, Montgomery, and Summit Counties has a disparate impact on African-American voters in violation of

Section 2 of the Voting Rights Act of 1965. The plaintiffs sought declaratory and injunctive relief prohibiting the defendants from: (1) continuing to allow the use of “non-notice” and deficient punch card and optical scan voting equipment in some Ohio counties while using more reliable voting equipment in other counties; (2) using non-notice punch card voting equipment in Hamilton, Montgomery, and Summit Counties; and (3) using non-notice optical scan voting systems in Sandusky County. On December 14, 2004, the district court rejected the plaintiffs’ claims and granted

summary judgment in favor of the defendants. Some commentators have suggested that these types of voting rights challenges are taking us into a brave new world. Others suggest that they are simply variations of old challenges. Regardless of the proper characterization, we find ourselves bound by Supreme Court precedent, and therefore, with regard to the plaintiffs’ claim under the Equal Protection Clause, we REVERSE the district court’s judgment. With regard to the plaintiffs’ claim under the Voting Rights Act, we VACATE the district court’s judgment and REMAND for proceedings consistent with this opinion. I. A.

Background Information on Voting Technology Ohio law empowers the Secretary of State to certify voting equipment. Ohio Rev.Code § 3506.15.

The Secretary has certified two general types of equipment: (1) “Notice” equipment such as Digital Recording Electronic (DRE) and precinct-count optical scan equipment that prevent overvotes (when a voter votes for more than the permissible number of candidates for a given office) and warn voters when they are casting undervotes (when a voter does not vote in a particular race or votes for fewer candidates than is permissible for a given office) — together, overvotes and undervotes are referred to as “residual votes”; and (2) “Non-notice” equipment such as punch card and central-count optical scan equipment that do not provide notice of and the opportunity to correct residual votes.

In the 2000 general election, approximately 72.5% of Ohio voters used non-notice equipment and 27.5% used notice equipment. In the 2000 general election, the most frequently used equipment in Ohio was the Votomatic punch card, a non-notice system that relies on a ballot card with pre-scored, square perforations or “chad” that correspond to the names of the candidates listed in an accompanying booklet. Names of candidates or other identifying information for ballot measures do not appear on the actual ballot. The punch card system does not provide independent notice of an over-vote or undervote.

A vote is recorded by the machine when light passes through the detached holes. Problems with the machines can cause “hanging chad” that remain attached to the ballot by one, two, or three corners; “pierced chad” that are penetrated by the stylus but not dislodged from the ballot; and “dimpled chad” that are dented but not penetrated or dislodged. Because of these inherent chad problems, light often cannot pass through the holes and a vote is not recorded.

Problems inherent in the punch card machines are sometimes caused by the build up of chads which may make it difficult or impossible to cleanly punch the card and record a vote. Optical scan systems resemble answer sheets used in standardized testing. The voter is given a ballot listing the names of all candidates and ballot initiatives and either uses a pencil to darken the circle next to the preferred candidate or draws a straight line connecting two parts of an arrow.

Optical scan systems can be either precinct-count systems, which enable voters to scan the ballot at the polling place thereby providing independent notice of and an opportunity to correct residual votes, or central-count systems, which do not provide independent notice or the opportunity to correct mistakes. Electronic DRE machines come in several varieties, but most often resemble automated teller machines or ATMs used at banks. Voters either touch the name of the preferred candidate on the screen or press a button that corresponds to the preferred candidate.

All forms of DRE technology currently used in Ohio make it impossible to overvote for the same office or ballot initiative. DRE systems can also be programmed to warn voters if their ballots contain undervotes. DRE systems (like precinct-count optical scan systems), therefore, provide independent notice of residual votes. In the 2000 general election, sixty-nine of eighty-eight Ohio counties used punch card ballots. Eleven counties used optical scan equipment, six used electronic equipment, and two used automatic or “lever” voting machines. These systems utilize different methods of reading and counting votes.

Some of the systems allow voters to check their ballots for residual votes. For example, one county and part of another county utilized precinct-count optical scan equipment, and six others use electronic voting equipment that allows a voter to verify their ballot on a screen before the final ballot is cast. Most systems, however, including the ones operated by the four county defendants, scan and count ballots at a central location after the polls have closed.

Thus, in total, eighty-one of eighty-eight Ohio counties used non-independent-notice equipment — voting technology that does not provide a voter with notice from the voting device that a problem might exist before the ballot is finally cast — in the 2000 general election. Only three counties collected statistics on overvotes — Hamilton County, which had 2,916 overvotes, Summit County, which had 1,470 overvotes, and Montgomery County, which had 2,469 overvotes. This is a total of 6,855 overvotes in those three counties, which represents approximately 34% of the total residual votes cast in those counties.

Franklin County used notice technology and there were zero overvotes. B. The Statistical Evidence The plaintiffs’ expert, Dr. Martha Kropf, testified regarding estimates of intentional and unintentional undervoting based on data collected by National Elections Studies and the Voters News Survey in exit polls and surveys in presidential elections between 1980 and 1996. Kropf testified that intentional undervoting in presidential elections is a relatively rare event that is estimated to involve between .23% and .75% of all residual votes. Dr.

Kropf concluded that when levels of undervoting exceed this threshold and vary by equipment it is probable that they resulted from unintentional undervoting that is associated with problems of the punch card ballot. She also found no difference between African-American and non African-American voters in levels of intentional undervotes. Kropf measured the performance of voting equipment by examining presidential and U.S.

Senate races at the top of the ballot because these are statewide elections where all voters face the same candidates, and media coverage, levels of candidate competition, and voter mobilization are relatively uniform. Kropfreported an overall statewide residual vote rate of 2.29% for punch card systems and 2.14% for central-count optical scans. That is, voters in punch card counties are approximately four times as likely not to have their votes counted as a voter using reliable electronic voting equipment. In some counties specific precincts encountered more severe problems with residual voting.

In Akron City Precinct 3-F the residual vote rate was 15% and in Dayton City’s 14th Ward Precinct C the residual vote rate was 17%. In addition, the counties in Ohio experiencing the highest percentage of residual votes in the 2000 presidential election were those in which voters used punch card technology while the counties experiencing the lowest percentage of residual votes used other technology.

The twenty-nine counties in Ohio with the highest residual vote percentages were all counties that used punch card machines; the seven counties with the lowest residual vote percentages were all counties that did not use punch card machines as their primary voting system.

Roy Saltman, formerly of the National Bureau of Standards and the author of two federal studies on the use of computers in vote tallying testified that his studies “demonstrate that punch cards are inherently fragile, and they become less stable when ballots are handled or manipulated or sent through a reader, resulting in over-votes, undervotes, and inconsistent vote tabulations.” Saltman explained that lost votes are not attributable solely to voters’ failure to follow instructions.

According to Saltman, “[w]hen the ballot is then handled or manipulated or sent through a reader, it is more likely that additional chads will be dislodged and fall out.

And if that happens, the votes indicated on the ballot are changed because the presence of holes indicates votes.” Dana Walch, Director of Election Reform for the Ohio Secretary of State’s Office, confirmed the plaintiffs’ evidence that there is “a higher residual vote rate in punch card counties-than in ... counties with other types of voting technology.” Walch further testified that problems with the punch card ballots “were the result of some physical failure of the ballot or voter error.” The record also includes letters from Tim Burke, the Chairman of the Board of Elections in Hamilton County, which state that: While I continue to believe that the punch card system functions reasonably well for the price, it does have faults that the electronic machines do not have.

I believe that the chad problem is a very small part of our problem here in Hamilton County. It does exist though. In fact, it is an inherent part of the punch card system. On the other hand, chads are totally eliminated with electronic systems. Another letter authored by Burke to U.S. Senator Mike DeWine stated that: Having looked closely at the punch card system of voting we use here in Hamilton County, I am convinced that this outdated technology is having a disparate impact in depriving a significant number of voters of having their electoral choices given....

Newer technology, particularly the touch screen voting systems, provide both a more accurate count and prevent a voter from [overvoting]. Finally, a third letter from Burke stated that: I am not as confident that our punch card voting system tells us with precise accuracy the number of votes any particular individual received or should have received if the intent of the voter had been properly accounted for.... In the punch card system you can and it is objectively provable that hundreds and hundreds of people lose their vote each year.

In response to this evidence, the district court acknowledged that “running the punch card ballots repeated times through the counting machinery will result in different results.” The Caltech MIT Voting Technology Project report — a joint venture between the two institutions to study, in part, the reliability of existing voting equipment— which is referenced throughout the record, is also informative.

As the report notes, that “[i]f voting equipment has no effect on the ability of voters to express their preferences, then the residual vote should be unrelated to machine types.” See Cal-tech-MIT Voting Technology Project, Residual Votes Attributable to Technology: An Assessment of the Reliability of Existing Voting Equipment (Version 2: March 30, 2001), available at http://www.vote.caltech.edu (last accessed April 1, 2006).

The report concluded that the error rate from punch cards is 50 percent higher than other technologies and that the pattern holds up when “holding constant turnout, income, racial composition of counties, age distribution of counties, literacy rates, the year of a shift in technology, the number of offices and candidates on the ballot, and other factors that operate in a county or in a particular year.” Report at 22.

In conclusion, the report stated that “[t]he incidence of such residual votes with punch card methods ... is forty to seventy percent higher than the incidence of residual votes with the other technologies,” Report at 17, and cautioned that “[i]f election administrators wish , to avoid catastrophic failures, they may heed th[is] warning ... Stop using punch cards,” Report at 11. Defendants’ expert Dr. John Lott examined the performance of voting technology across three election cycles, 1992, 1996, and 2000, in the presidential, Congressional, Ohio Senate, and Ohio House elections.

His findings for the presidential and U.S. Senate elections mirror Kropf s in the 2000 election. Lott reported an overall statewide residual vote rate of 2.4% for punch card systems. Dr. Lott’s report stresses findings from the down-ballot contests — contests listed below the presidential candidates farther down the ballot — that were not uniform across the state and included non-competitive and uncontested elections.

The experts on both sides appear to agree that the most likely explanations for the fall-off in down-ballot voting are that voters deliberately choose not to vote or that elections were not competitive. Lott’s report does not include specific findings on overvotes. Further, the defendants’ experts made no effort to distinguish intentional from unintentional undervoting in the down-ballot elections. Lott also admitted that a review of the literature revealed that no other major scholars have agreed with his findings regarding the relevance of analyzing non-uniform down-ballot races.

The State’s Help America Vote Act report also provides evidence of the problem of deficient electoral technology.

At the outset, the report notes that “[pjublic confidence in the accuracy of punch card voting systems has been seriously undermined.” Thus, “Boards of election should upgrade their voting systems to new, more trustworthy technology.” Additionally, “[tjhese goals demand immediate attention, or our state runs the risk of repeating the problems of our nation’s most recent presidential election — and suffering irreparable damage to the most important and basic concepts of democracy.” Regarding the deficient technology currently in use throughout the State, the report stated that: “While the Secretary of State notes that punch-card voting is not explicitly prohibited under the Help America Vote Act, other requirements of the Act make it impractical to use punch card voting as a primary voting device in the state.

In a study of ‘over’ and ‘under’ voting in Ohio, it was dearly demonstrated that punch-card voting was unreliable to the extent [that] votes cast by thousands of Ohioans were not being counted in the final election tabulation.” (Emphasis added). Additionally, the report stated that: As election officials, if we know voters are disenfranchised and that legitimately cast ballots are being discounted, we have not only a moral obligation to immediately embrace a solution, but a legal obligation to find a remedy and enact measures to prevent that from happening.

If even one voter is denied the right to vote, we are obligated, by law, to determine the cause and forge a solution. The evidence is overwhelming that thousands of Ohio voters have been disenfranchised by antiquated voting equipment and that many thousands have lost confidence in the reliability and accuracy of voting devices currently in use in most of Ohio’s 88 counties. (Emphasis added).

Finally, in response to the legislature’s slow response to the electoral problems, the Secretary of State wrote a letter stating that “the possibility of a close election with punch cards as the state’s primary voting device invites a Florida-like calamity.” C. The Plaintiffs’ Voting Rights Act Claim On their Voting Rights Act claim, the plaintiffs alleged that the punch card system used in Hamilton, Montgomery, and Summit Counties produces a higher residual vote rate for African-American voters than for white voters.

The plaintiffs presented regression analysis that the correlation between overvoting and the percentage of African-American voters in a given precinct in Hamilton County was .517 and in Summit County it was .682. The plaintiffs’ experts characterized these correlations as “strong.” In Montgomery County, where only data of overvotes mixed with undervotes was available at the precinct level, there was a smaller, but nevertheless “strong” .440 correlation. The plaintiffs’ expert, Dr.

Richard Engstrom, analyzed the data based on methods of statistical analysis approved by the Supreme Court and other federal courts in voting rights cases. See e.g., Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986); Mallory v. Ohio, 173 F.3d 377 (6th Cir.1999). The three methods are homogeneous precinct analysis, ecological regression, and ecological inference. Dr. Engstrom used all three methods and triangulated among them to verify that his findings moved consistently in the same direction; the defendants’ expert did not use any of these methods. Dr. Engstrom concluded that:

(1) African-Americans in Hamilton County overvoted at a rate seven times higher than non African-Americans; (2) in Summit County, African-Americans overvoted at a rate nine times higher than non African-Americans; and (3) in Montgomery County (where only combined over and undervote statistics are available on a precinct basis), African-Americans had a residual voting rate 2.5 times that of non African-Americans. In contrast to the three punch card counties, Franklin County had no overvotes because it used DRE machines that prevent overvoting. Based on this information, Dr.

Engstrom testified that punch card equipment interacts with socioeconomic conditions, resulting in statistically significant disparities between the levels of residual voting among African-American and non African-American voters. D. The Defendants’ Responses The defendants contend that the plaintiffs did not provide factual evidence to prove a violation of the Constitution or Voting Rights Act. With heavy emphasis on the plaintiffs’ stipulation that they were not denied physical access to the polls, the defendants seem to allege that the plaintiffs were not denied the right to vote. State Defendant’s Br. at 8.

The defendants attack the plaintiffs’ expert, Martha Kropf, who testified that intentional undervoting is rare, based on the fact that she relied exclusively on exit polls commissioned by the National Election Survey and the Voters News Service. They further point out that in the 1988 election, the National Election Survey determined that between 3-5% of those who claimed to have voted had no record of actually voting in the election. Thus, according to the defendants, the data the plaintiffs relied on consistently over-reports voter turnout — thereby inflating the residual vote statistics.

The defendants also criticize the plaintiffs for not examining the voting results of the entire state and instead focusing on Hamilton, Sandusky, Summit, and Montgomery Counties. The defendants further claim to poke holes in the plaintiffs’ theory by pointing out that the plaintiffs’ own study shows that African-Americans using punch card technology in Hamilton County had a lower residual vote rate than non African-Americans using the punch card technology in Summit County. The defendants also point to their expert, Dr.

John Lott, who examined the 1992, 1996, and 2000 presidential elections and down-ballot races such as U.S. Senate, U.S. Congress, state legislature races, and local races. Dr. Lott found that punch cards outperformed electronic machines in congressional races, that punch cards reliability improved for down-ballot races relative to other technologies, and that punch cards produced fewer non-voted ballots for 1992, 1996, and 2000 races than either electronic machines or lever machines and produced virtually the same results as optical scan machines. The defendants also rely on Dr.

Herb Asher’s findings that precincts with a higher concentration of poverty had a residual vote rate higher than average in Ohio. Thus, Dr. Asher pointed to race, education, and poverty as the cause. Dr. Asher also pointed to Appalachian counties where the population is less than one percent African-American and concluded that because there is a residual vote rate in those counties, education and income levels are contributing factors and one factor alone— race — cannot explain everything. E. The District Court’s Opinion Prior to the trial, the district court denied the plaintiffs’ motion for class certification.

They appeal this decision. The district court then conducted a four-day bench trial and found in favor of the defendants. At the outset, the district court laid out the parties’ arguments — it noted that according to the plaintiffs’ expert, Dr. Kropf, the residual vote rate was 2.29% for punch cards, 1.15% for precinct-count optical scan, 1.04% for lever technology, and 0.94% for DRE technology. The defendants’ expert produced similar results: 2.4% for punch cards, 2.0% for optical scan, 1.4% for level technology, and 1.0% for DRE technology.

Based on these figures, the plaintiffs’ alleged that punch cards and central-count optical scan technology (but not lever, precinct-count optical scan, or DRE technology) violate the Equal Protection and Due Process clauses. Citing this Court’s decision in Mixon v. State of Ohio, 193 F.3d 389 (6th Cir.1999), the district court determined, in a footnote, that rational basis is the appropriate standard for evaluating the voting systems.

The footnote concluded by stating: “However, if the Court were to apply strict scrutiny, the Court’s ruling would be the same.” The court then stated that “[t]he primary thrust of this litigation is an attempt to federalize elections by judicial rule or fiat via the invitation to this Court to declare a certain voting technology unconstitutional and then fashion a remedy.

This Court declines the invitation.” According to the district court, determination of the voting process has always been left to the legislative branch, and “subject to constitutional amendment, that is where the determination should remain.” The court went on to state that “[t]he use of the punch card voting technology is neither confusing nor difficult to operate.” Then, taking estimates for intentional undervoting into account and multiplying it by the residual vote rate across the state, the district court concluded that: Viewing the plaintiffs’ case in a light most favorable to them, leads to the conclusion that seven to thirteen voters out of 1000 [i.e., 0.7% to 1.3%] using punch card technology accidentally failed to record a vote in the year 2000 in the presidential election.

Such a de minimis conclusion, assuming arguendo that it is justified, fails to prove a constitutional violation, either on a Due Process or Equal Protection analysis. Regarding the African-American plaintiffs’ Voting Rights Act claim, the district court found that it “fail[s] because their alleged injury does not amount to a vote denial under § 2 of the Voting Rights Act.” The court noted that plaintiffs can bring vote denial or vote dilution claims under the Act, but found that the plaintiffs brought only a vote denial claim and that the plaintiffs admitted that they were not denied physical access to the polls.

Because, according to the district court, “[a] vote denial arises when a state or municipality employs a ‘practice or procedure’ that results in the ‘actual’ denial of the right to vote on account of race,” see 42 U.S.C. § 1973(a), the plaintiffs did not bring a cognizable Voting Rights Act claim.

The court stated that: “When coupled with the previously referenced de minimis affects of the punch card ballots, these facts do not allow this Court to conclude that an ‘actual’ denial of the right to vote on account of race occurs.” Finally, the court concluded that “the operation of different voting systems by different counties within the same state does not amount to a violation of the Equal Protection Clause.” Relying heavily on Justice Souter’s dissenting opinion in Bush v.

Gore, 531 U.S. 98, 134, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000) (Souter, J., dissenting), the district court concluded that states may freely use a variety of different voting technologies without running afoul of the Equal Protection Clause. Further, the court concluded that the defendants have a rational basis for continuing to utilize punch card technology in that it is cost effective and there are security concerns with electronic technology. II. A. Standing Before turning to the merits of the case, we address the defendants’ argument that the plaintiffs lack standing.

The district court stated that it “is of the view that the defendants have the better argument on the issue of standing, but declines the invitation to dismiss the case on standing.” The district court erred in not determining whether the plaintiffs had standing. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (courts have an obligation to satisfy jurisdiction, including standing, even though the parties are prepared to concede it).

The defendants argue that: (1) because one of the four plaintiffs did not vote in the previous election, she suffered no injury in fact, and (2) no plaintiff has standing to bring suit against Hamilton County, because none of the four voters have ever lived or voted in Hamilton County. We reject the defendants’ arguments and conclude that the plaintiffs have standing to bring suit against the State of Ohio and each of the four counties. It has been stipulated that at least one of the plaintiffs, all of whom are registered voters, resides in each defendant-county.

Furthermore, the plaintiffs’ standing does not depend on any injury suffered in the previous election, but rather on the probability that their votes will be miscounted in upcoming elections. In Bryant v. Yellen, 447 U.S. 352, 100 S.Ct. 2232, 65 L.Ed.2d 184 (1980), the Supreme Court held that a group of farm workers had suffered an injury sufficient to confer standing based on an increased likelihood that land would be available for sale if a

section of the Boulder Canyon Project Act had been applied to 160 acres of land in Imperial Valley, California. The Supreme Court concluded that the circuit court was correct in finding standing on this basis, even though the plaintiffs could not establish that they would be able to purchase land if the

section of the Act were applied. Id. at 366-67, 100 S.Ct. 2232. The farm workers did in fact have standing, because it was unlikely that any of the land would be available for sale without the applicability of the

section of the Act, and likely that the land would be available at less than market prices after the application of the Act. Id. at 368, 100 S.Ct. 2232. Bryant indicates that the increased probability of a future injury is sufficient to confer

Article III standing. The Supreme Court restated the elements of standing in Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). There, the Court emphasized that in order to have standing, a plaintiff must have suffered an injury in fact, which must be concrete and particularized, and actual or imminent, as opposed to conjectural or hypothetical. Id. at 560. Lujan, however, does not overrule B'ryant. In fact, after Lujan, courts have continued to recognize that the increased risk of harm constitutes an injury sufficient to support standing.

For example, although ultimately denying him relief, the Supreme Court considered the merits of the claims brought by a plaintiff who had been exposed to asbestos, but had not yet manifested any symptoms of asbestos-related disease. Metro-North Commuter R. Co. v. Buckley, 521 U.S. 424, 117 S.Ct. 2113, 138 L.Ed.2d 560 (1997). This Court has also recognized in the medical context that a risk of injury in the future can be grounds for standing. See Sutton v. St.

Jude S.C., Inc., 419 F.3d 568, 573-74 (6th Cir.2005) (finding standing based on an increased risk of harm requiring medical monitoring); but see Natural Resources Def. Council v. EPA, 440 F.3d 476 (D.C.Cir.2006). In the voting context, this Court and others have recognized that voters can have standing based on an increased risk that their votes will be improperly discounted. In Sandusky County Democratic Party v.

Blackwell, 387 F.3d 565, 574 (6th Cir.2004) (per curiam), this Court held that the plaintiffs had standing to bring a claim on behalf of voters alleging that the Secretary of State’s issuance of provisional ballots in Ohio elections violated the Help America Vote Act. The Act allowed voters to cast provisional ballots in those instances where their names could not be located on the list of qualified voters. Id. at 569.

The Secretary of State issued a directive that would prohibit voters from casting provisional votes unless the poll worker was able to confirm that the voter was eligible to vote in that specific precinct. Id. at 571. On behalf of their members, ie. voters, plaintiffs alleged that the directive violated the Act because the directive would allow “poll workers to withhold a provisional ballot from anyone who is not — according to the poll worker’s on-the-spot determination at the polling place — a resident of the precinct in which the would-be voter desires to cast a provisional ballot.” Id.

This Court held that the plaintiffs had standing, even though they were unable to name specific voters who would seek to vote at polling places that would be deemed to be wrong by voters: Appellees have not identified specific voters who will seek to vote at a polling place that will be deemed wrong by election workers, but this is understandable; by their nature, mistakes cannot' be specifically identified in advance.

Thus, a voter cannot know in advance that his or her name will be dropped from the rolls, or listed in an incorrect precinct, or listed correctly but subject to a human error by an election worker who mistakenly believes the voter is at the wrong polling place. It is inevitable, however, that there will be such mistakes. The issues Appellees raise are not speculative or remote; they are real and imminent. Id. at 574. So too here, the plaintiffs are unable to articulate which voter will be harmed in the future by deficient equipment.

It is inevitable, however, that errors have been made and will be made in the future. As the district court found, “[a] flaw in the punch card ballot is its fragile nature and the fact that running the punch card ballots repeated times through the counting machinery will result in different results.” The claims of the plaintiffs here are not speculative or remote, but real and imminent. The plaintiffs here have alleged an injury in fact sufficient to confer

Article III standing. The increased probability that their votes will be improperly counted based on punch-card and central-count optical scan technology is neither speculative nor remote. B. Mootness The defendants also claim that there is no case or controversy because of the Help America Vote Act of 2002. Pub.L. No. 107-252, 116 Stat. 1666 (codified at 42 U.S.C. § 15304).

Section 102 of the Act requires States receiving federal funds under the Act to discontinue the use of punch card systems in time for the first federal election of 2006. The Act also contains a

section on voting system standards. 42 U.S.C. § 15481. The Act requires independent notice technology, the opportunity to change the ballot before it is cast, and an FEC compliant error rate. Ohio has declared its intentions to comply with the Act and thereby will receive federal funding under the Act. Id. The mootness doctrine is grounded in

Article Ill’s “case or controversy” requirement. Thus, as mootness is a jurisdictional requirement, courts lack judicial power to entertain and decide moot cases. See Los Angeles County v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (“[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.”) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)).

The standard for determining whether a case has been mooted by the defendant’s voluntary conduct “is stringent: ‘A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’ The ‘heavy burden of persuading]’ the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness.” Laidlaw, 528 U.S. at 189, 120 S.Ct. 693 (quoting United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968)) (emphasis added).

The State has asserted that its voluntary compliance with HAVA is sufficient to moot the case. We disagree. Ohio’s voluntary compliance with the Act is just that — voluntary. The State, should it wish to opt out of the Act’s demands, may do so at any time and the only penalty is the return of a prorated amount of the federal funds in proportion to the precincts not converted to acceptable technology. This is not the type of voluntary action that moots a case, and in fact, is just the type of action that we have found does not carry the “heavy burden” of demonstrating mootness. See e.g., Am. Canoe Ass’n v.

City of Louisa Water & Sewer Comm’n, 389 F.3d 536, 543 (6th Cir.2004) (defendants voluntary conduct failed to meet “stringent” test for mootness); Johnson v. City of Cincinnati, 310 F.3d 484, 490 (6th Cir.2002) (city’s assurance that it no longer enforced the challenged ordinance deemed insufficient to moot case); Deja Vu of Nashville v. Metro. Gov’t of Nashville & Davidson Co., 274 F.3d 377, 387 (6th Cir.2001) (amendment of challenged ordinance did not moot case). We now turn to the merits of the case. III. A. The Right to Vote Voting is a fundamental right. See e.g., Reynolds v.

Sims, 377 U.S. 533, 561-62, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (“Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society.”). For more than a century the Supreme Court has acknowledged the fundamental nature of the right to vote. See Yick Wo v.

Hopkins, 118 U.S. 356, 371, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (acknowledging “the political franchise of voting” as “a fundamental political right”). “Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.” Reynolds, 377 U.S. at 562, 84 S.Ct. 1362.

Careful and meticulous scrutiny is necessary because even minor infringements on the franchise can have reverberations in other contexts and throughout democratic society. “A consistent line of decisions by [the Supreme] Court in cases involving attempts to deny or restrict the right of suffrage has made this indelibly clear.” Id. at 554, 84 S.Ct. 1362 (“Undeniably the Constitution of the United States protects the right of all qualified citizens to vote, in state as well as in federal elections.”); see also U.S. Const, amends. XV, XVII, XIX, XXIV, XXVI.

For example, all qualified voters have a constitutionally protected right to vote. Ex parte Yarbrough, 110 U.S. 651, 656, 4 S.Ct. 152, 28 L.Ed. 274 (1884). Citizens cannot be denied the right to vote outright. Guinn v. United States, 238 U.S. 347, 362, 35 S.Ct. 926, 59 L.Ed. 1340 (1915); Lane v. Wilson, 307 U.S. 268, 274-75, 59 S.Ct. 872, 83 L.Ed. 1281 (“The Fifteenth Amendment secures freedom from discrimination on account of race in matters affecting the franchise,” and “nullifies sophisticated as well as simple-minded modes of discrimination.”).

Dilution of the right to vote may not be accomplished by stuffing the ballot-boxes. Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717 (1879). Nor may the right to vote be diluted by alteration of ballots or improper counting of ballots. United States v. Classic, 313 U.S. 299, 315, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941). In Classic, the Court stated that: “Obviously included within the right to choose, secured by the Constitution, is the right of qualified voters within a state to cast their ballots and have them counted ...

This Court has consistently held that this is a right secured by the Constitution.” Id. (emphasis added). Dilution of the right to vote through various techniques, including racial gerrymandering, Gomillion v. Lightfoot, 364 U.S. 339, 345, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960), and conducting white primaries, Terry v. Adams, 345 U.S. 461, 469, 73 S.Ct. 809, 97 L.Ed. 1152 (1953), likewise violate the Constitution due to the effect of denying some citizens the right to vote.

What is clear from all of the Supreme Court’s voting rights cases is that “[t]he right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” Reynolds, 377 U.S. at 555, 84 S.Ct. 1362. The Supreme Court’s cases have also made another principle unmistakable: “[T]he right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Id. Nearly a year before Reynolds, in Gray v.

Sanders, 372 U.S. 368, 381, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963), the Supreme Court held unconstitutional Georgia’s county unit system in statewide primary elections. The Court found the system to be unconstitutional because it diluted the weight of votes cast by certain Georgia residents based on where they lived. Id. at 379-80, 83 S.Ct. 801.

The Court stated: Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote — whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit. This is required by the Equal Protection Clause of the Fourteenth Amendment. The concept of Sve the people’ under the Constitution visualizes no preferred class of voters but equality among those who meet the basic qualifications.

The idea that every voter is equal to every other voter in his State, when he casts his ballot in favor of one of several competing candidates, underlies many of our decisions. Id. at 379-80, 83 S.Ct. 801. The Court continued and concluded by stating that: “The conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing— one person, one vote.” Id. at 381, 83 S.Ct. 801. Also, in Wesberry v.

Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964), the Court addressed the constitutional test for determining the validity of congressional districting schemes and held that Equal Protection requires substantial equality of population amongst the districts established by state legislatures for the election of members to the United States House of Representatives.

Id. at 18, 84 S.Ct. 526 (‘While it may not be possible to draw congressional, districts with mathematical precision, that is no excuse for ignoring our Constitution’s plain objective of making equal representation for equal numbers of people the fundamental goal for the House of Representatives. That is the high standard of justice and common sense which the Founders set for us.”). The high standard establishes that: “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live.

Other rights, even the most basic, are illusory if the right to vote is undermined.” Id. at 17, 84 S.Ct. 526. The Reynolds Court also favorably cited Justice Douglas’s dissent in South v. Peters, 339 U.S. 276, 70 S.Ct. 641, 94 L.Ed. 834 (1950), where he stated that: There is more to the right to vote than the right to mark a piece of paper and drop it in a box or the right to pull a lever in a voting booth. The right to vote includes the right to have the ballot counted. It also includes the right to have the vote counted at full value without dilution or discount.

Id. at 279, 70 S.Ct. 641 (citations omitted); see also Reynolds, 377 U.S. at 562, 84 S.Ct. 1362 (“And, if a State should provide that the votes of citizens in one part of the State should be given two times, or five times, or 10 times the weight of votes of citizens in another part of the State, it could hardly be contended that the right to vote of those residing in the disfavored areas had not been effectively diluted.”).

Vote dilution, of course, while just as effective as an outright denial of the franchise, may be accomplished in many ways, both intentionally and unintentionally, in a manner that does not immediately shock the senses as would an outright denial. This is not a reason, however, to be any less cognizant of the Equal Protection Clause implications. “One must be ever aware that the Constitution forbids sophisticated as well as simpleminded modes of discrimination.” Reynolds, 377 U.S. at 563, 84 S.Ct. 1362 (internal quotation marks omitted).

Helpful to the analysis in Reynolds and favorably cited by the Court-was Justice Black’s dissent in Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432 (1946), where he stated that: No one would deny that the equal protection clause would also prohibit a law that would expressly give certain citizens a half-vote and others a full vote ... [T]he Constitutionally guaranteed right to vote and the right to have one’s vote counted clearly imply the policy that state election systems, no matter what their form, should be designed to give approximately equal weight to each vote cast....

Thus, a state legislature cannot deny eligible voters the right to vote for Congressmen and the right to have their vote counted. It can no more destroy the effectiveness of their vote in part and no more accomplish this in the name of ‘apportionment’ than under any other name. Id. at 569-70, 66 S.Ct. 1198 (emphasis added). Additional cases are-relevant to our decision. Harper v.

Virginia State Bd. of Elections held invalid a Virginia poll tax and declared that “a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter of payment of any fee an electoral standard.” 383 U.S. 663, 666, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966). To reach this conclusion, the Court noted that: “We have long been mindful that where fundamental rights and liberties are asserted under the Equal Protection Clause, classifications which might invade or restrain them must be closely scrutinized and carefully confined.” Id. at 670, 86 S.Ct. 1079. Next, in Dunn v.

Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), the Court struck down Tennessee’s durational residence statute. Applying strict scrutiny, the Court stated: There is no need to repeat now the labors undertaken in earlier cases to analyze this right to vote and to explain in detail the judicial role in reviewing state statutes that selectively distribute the franchise. In decision after decision, this Court has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.

Id. at 336, 92 S.Ct. 995 (citations omitted). Thus, the law would be “unconstitutional unless the State can demonstrate that such laws are necessary to promote a compelling governmental interest.” Id. at 342, 92 S.Ct. 995 (quotation omitted). Stated another way, “a heavy burden of justification is on the State, and [ ] the statute will be closely scrutinized in light of its asserted purposes.” Id. at 343, 92 S.Ct. 995. The Court further stated that laws “affecting constitutional rights must be drawn with precision ... and must be tailored to serve their legitimate objectives.

And if there are other, reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference.” Id. (internal quotations and citations omitted). Somewhat more recently decided is Bush v. Gore, 531 U.S. 98, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000), which reiterated long established Equal Protection principles.

Id. at 104, 121 S.Ct. 525 (“When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; , and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter.”). Echoing long-revered principles, the Court emphasized that states, after granting the right to vote on equal terms, “may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Id. at 104-05, 121 S.Ct. 525 (citing Harper v.

Virginia Bd. of Elections, 383 U.S. 663, 665, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966)). That is, the right to vote encompasses “more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise.” Id. Equal Protection, therefore, requires “minimal procedural safeguards” such that there is “at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied.” Id. at 109, 121 S.Ct. 525.

Echoing Dunn’s holding that “if there are other, reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference,” 405 U.S. at 343, 92 S.Ct. 995, the Court held that “[t]he formulation of uniform rules to determine intent based on these recurring circumstances is practicable and, we conclude, necessary,” Bush, 531 U.S. at 106, 121 S.Ct. 525.

Furthermore, the Court cautioned that “[i]t must be remembered that ‘the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.’ ” Id. at 105, 121 S.Ct. 525 (quoting Reynolds, 377 U.S. at 555, 84 S.Ct. 1362).

And finally, the Court expressed its reluctance at having to decide the issue, but asserted that “[w]hen contending parties invoke the process of the courts ... it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.” Id. at 111, 121 S.Ct. 525. Last, contrary to the dissent’s argument, the Court’s decision in Burdick v. Takushi, 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) does not require a different approach.

In Burdick, the Court considered whether Hawaii’s prohibition on write-in voting violated the First and Fourteenth Amendments. Id. at 430, 112 S.Ct. 2059. The Court began by noting that any election law will in some way “impose some burden upon individual voters,” and, as a result, applying strict scrutiny to any claim tangentially related to the right to vote would unnecessarily tie the hands of state officials seeking to regulate orderly elections. Id. at 433, 112 S.Ct. 2059.

The Court did reassert that the right to vote is fundamental, but noted that from this principle it does not follow that the “the right to associate [with a particular candidate] for political purposes through the ballot [is] absolute.” Id. In Burdick, therefore, the Court found the burden to be minimal and affecting only those voters failing to comply with Hawaii’s reasonable and non-discriminatory election procedures for qualifying for a place on the ballot. Id. at 434-45, 112 S.Ct. 2059.

Thus, unlike the instant case, where the technological burden is not within the control of the voters, any burden in Burdick was the result of the voter’s failure to timely identify a candidate and seek to place such person on the ballot. Id. at 436-37, 112 S.Ct. 2059 (“Consequently, any burden on voters’ freedom of choice and association is borne only by those who fail to identify their candidate of choice until days before the primary. But in Storer v.

Brown, [415 U.S. 724, 736, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974)] we gave little weight to ‘the interest the candidate and his supports may have in making a late rather than an early decision to seek independent ballot status.’”). Finally, noting that compliance with Hawaii’s procedures afforded “adequate ballot access,” the State’s ban on write-in voting was only a “limited burden on voters’ rights to make free choices and to associate politically through the vote.” Id. at 438-39, 112 S.Ct. 2059.

We have little problem dismissing the relevance of Burdick, the context of which is a voter’s desire to vote for a write-in candidate after failing to properly comply with the state’s procedures for getting that candidate on the ballot in the first place. The voter in Burdick had access to the ballot on equal terms with the rest of the electorate. The Supreme Court viewed the burden in Burdick as little more than a minor burden on those who waited until “the eleventh hour,” id. at 439, 112 S.Ct. 2059, to decide whom to vote for or the interest in recording a “protest vote,” id. at 438, 112 S.Ct. 2059.

In this case, however, through no failure on their parts, Ohio voters facing deficient technology approach the ballot in a position unequal from the portion of the electorate using adequate technology. As the State’s HAVA report stated: “The evidence is overwhelming that thousands of Ohio voters have been disenfranchised by antiquated voting equipment.” The burden on the franchise in Burdick pales in comparison to the burden in this case. The dissent’s reliance on Burdick, therefore, is misplaced.

First, “[i]n Burdick, the plaintiffs’ First Amendment rights to ballot access were at issue,” Southwest Voter, 344 F.3d at 899, not the plaintiffs’ right to vote, which is at issue in this case. Second, the dissent’s claim that “[f]ederal courts applying the Burdick framework have evaluated challenges to various state voting regulations under a rational-basis standard of review” Dis. Op. at 35, is correct, but misses the point. Burdick was about a candidate’s access to the ballot; it was not a case that addressed a voter being denied an equal chance to have her vote counted.

Each of the cases cited by the dissent, employing Burdick’s framework, are likewise cases having little to nothing to do with the exercise of the franchise. Moreover, the dissent adopts an overly narrow

interpretation of the “right to vote” and ignores the Supreme Court’s statement in Bush that the right to vote encompasses “more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise.” Bush, 531 U.S. at 104, 121 S.Ct. 525 (emphasis added). We also note that the case before us is more similar to Bush where the Court did not find it necessary to address or cite Burdick when applying a heightened standard of review. Zealous protection of the right to vote has been the norm. Few rights have been so extensively and vigorously protected as the right to vote.

Its fundamental nature and the vigilance in its defense, both from the courts, Congress, and through the constitutional amendment process, stem from the recognition that our democratic structure and the preservation of other rights depends to a great extent on the franchise. To that effect, from Yick Wo to Reynolds to Bush, Supreme Court precedent is clear: we must apply strict scrutiny to the challenged voting practice at issue here. Ending this

section on the proper standard of review, we now briefly review other lower courts treatment of similar voting rights challenges in recent years. B. Similar Equal Protection Challenges to Voting Technology Relatively soon after the 2000 presidential election, the first case challenging the use of certain voting technology as violative of the Equal Protection Clause was heard in the Central District of California. The plaintiffs alleged that the use of punch card voting systems amounted to vote denial in violation of the Fourteenth Amendment as well as a claim under the Voting Rights Act.

See Common Cause Southern Christian Leadership Conference of Greater Los Angeles v. Jones, 213 F.Supp.2d 1106, 1107-08 (C.D.Cal.2001). The Secretary of State moved for judgment on the pleadings and the district court denied the motion. Id. at 1108. Like Ohio’s Secretary of State, California’s Secretary of State “has the power to publish a list of voting systems from which counties may choose.” Id. at 1107.

This list included punch card systems which the plaintiffs alleged were less reliable than other listed systems, and therefore those living in counties where the punch card system was used were substantially less likely to have their votes counted in violation of the Fourteenth Amendment. Id. The plaintiffs also alleged that the counties using punch card systems “have high racial minority populations in comparison with counties using other voting systems” and therefore alleged a denial of the right to vote on the basis of race under

Section 2 of the Voting Rights Act. Id. at 1107-08. The district court concluded that the plaintiffs alleged sufficient facts to survive a motion for judgment on the pleadings under both strict scrutiny and rational basis review. Id. at 1109 (“Even if the more lenient standard is ultimately applied by this Court, Plaintiff has alleged facts indicating that the Secretary of State’s permission to counties to adopt either punch-card voting procedures or more reliable voting procedures is unreasonable and discriminatory.”).

Regarding the Voting Rights Act claim, the court characterized the plaintiffs’ claim as racial minorities being “disproportionately denied the right to vote because their votes are uncounted in disproportionate numbers as a result of the voting mechanism that they are supplied.” Id. at 1110. The court again denied the defendants’ motion to dismiss. Id. Following the decision, the parties agreed to and the court entered a consent decree requiring that for the nine counties in California using punch card technology convert to “other certified voting equipment” by March 2004. See Common Cause v.

Jones, No. 01-03470 SVW (RZX), 2002 WL 1766436 (C.D.Cal. Feb.19, 2002), enforced by, No. 01-03470 SVW (RZ), 2002 WL 1766410 (C.D.Cal. May 9, 2002). In 2002, in a more comprehensive fashion, the district court for the Northern District of Illinois addressed a similar claim. See Black v. McGuffage, 209 F.Supp.2d 889 (N.D.Ill.2002). The court began by noting that many election problems have come to light in recent years. Id. at 891.

The plaintiffs in Black made essentially the same claims now before this Court — that is, claims under the Equal Protection and Due Process Clauses, as well as a claim for the minority plaintiffs under

Section 2 of the Voting Rights Act. Id. at 892 (“Plaintiffs allege that African American and Latino voters are disproportionately forced to use — and are disproportionately injured when they use — -the challenged voting systems.”). Like Ohio and California (and most other states), the counties in Illinois may choose from several voting systems certified by the Illinois State Board of Elections. Id.

Illinois jurisdictions could choose from four technologies — precinct-count optical scan (with error notification), central-count optical scan (without error notification), precinct-count punch card (with error notification) and central-count punch card (without error notification) technologies. Id. Of the 110 local election boards in Illinois, in the 2000 election, ninety-five boards used central-count punch card systems. Id.

Various residual vote rates were listed by the district court: The average residual vote rate across Illinois, for ballots cast for president in the November, 2000 presidential election, was approximately 3.85%. This rate varied substantially among Illinois jurisdictions. [In][j]urisdictions using optical scan ballots with error notification the average residual vote rate was less than 1%. The rates ranged from 0.32% in McHenry County to 1.07% in Franklin County. In jurisdictions using punch card ballots without error notification the average residual vote rate was more than 4%.

For example, in Chicago, the rate was 7.06% citywide, 12.59% in the 12th ward, 12.4% in the 37th ward, and 36.73% in the 48th precinct of the 29th ward. Similarly, the rate was 5.23% in suburban Cook County, 8.8% in the Cicero Township of Cook County and 7.48% in Alexander County. The rate was 3.17% in Whiteside County, 2.48% in Will County, and 2.15% in Sangamon County. In the three election jurisdictions which use optical scan ballots without error notification the average residual vote rate was more than 4%. For example, the rate was 10.88% in all of East St. Louis, but 22.30% in the 20th precinct of East St.

Louis. Id. at 893. As in the instant case, based on various residual vote rates, the plaintiffs argued that “individuals living in punch card jurisdictions have a greater statistical probability of not having then-votes counted ... [and] that the counties with the punch card system have larger populations of minorities than do counties using other voting systems, and thus use of those less accurate machines has a disparate impact on minority voters.” Id. at 894. The district court addressed the claim in the context of a 12(b)(6) motion to dismiss.

The court first rejected the defendants’ claims based on standing and mootness, id. at 894-96, and also rejected the defendants’ 12(b)(6) claim as to the merits. The court first addressed the plaintiffs’ claim under

Section 2 of the Voting Rights Act of 1965. The court stated that “the Supreme Court has emphasized [that the Voting Rights Act] ‘should be interpreted in a manner that provides the broadest possible scope in combating racial discrimination.’” Id. at 896 (quoting Chisom v. Roemer, 501 U.S. 380, 403, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991) (internal quotations omitted)).

Section 2(

a) of the Act prohibits the use of any electoral practice of procedure that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” 42 U.S.C. § 1973(a).

Section 2 broadly protects the franchise and includes “all action necessary to make a vote effective” including “casting a ballot and having such ballot- counted properly.” 42 U.S.C. § 1973Í (c)(1).

Section 2(

b) of the Act provides that an electoral practice or procedure results in a violation of the franchise under

section (

a) if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (

a) of this

section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. 42 U.S.C. § 1973(b). Based on these statutes, the district court in Black found that “[t]here are two statutory elements to a claim under

Section 2:(1) the use of an electoral ‘standard, practice or procedure,’ and (2) a resulting diminution of the opportunity to [minority] voters ‘to participate in the political process and to elect representatives of then-choice.’ ” Id. at 896 (quoting 42 U.S.C. § 1973(a)-(b)).

The court then concluded that the plaintiffs’ complaint met this requirement by identifying an electoral practice (“deficient ballot system”), and alleged that because of the deficient system, the minority plaintiffs have less opportunity than other members of the electorate to participate in the process and elect representatives of their choice. Id. at 897. Finding that the facts alleged could demonstrate that the plaintiffs “participation in the political process could be significantly diminished,” the district court denied the defendants’ motion to dismiss. Id.

The court then turned to the plaintiffs’ claim under the Equal Protection Clause. The Equal Protection claim in Black, and in the instant case, is not that a classification has been drawn based on race, but rather that “the counties’ use of different voting systems in different parties of the state violates the Equal Protection Clause” by valuing one person’s vote more than another’s. Id. at 897.

Because there was no explicit classification, the defendants argued that rational basis was the standard of review while the plaintiffs argued that strict scrutiny is the appropriate standard because the voting system affects the plaintiffs’ fundamental right to vote. Id. The district court did not directly decide the issue and reserved its determination for trial. Id. The court then turned to Supreme Court precedent and found the plaintiffs’ allegations fitting squarely within the Court’s Equal Protection admonitions. The district court did find the plaintiffs’ claims to be more analogous to Bush v.

Gore than any other of the Supreme Court’s previous voting rights cases, but the principle behind each of them remained the same. Id. at 898-99. According to the court, as a result of the state’s arbitrary and disparate treatment of voters in different counties, “voters in some counties are statistically less likely to have their votes counted than voters in other counties in the same state in the same election for the same office. Similarly situated persons are treated differently in an arbitrary manner.” Id. at 899.

Thus, because of the voting system used, the state “ ‘value[s] one person’s vote over that of another,’ ... [and] does not afford the ‘equal dignity owed to each voter.’ ” Id. (quoting Bush v. Gore, 531 U.S. at 104-05, 121 S.Ct. 525). The third applicable case involved the California gubernatorial recall election. Following the disposition of Common Cause, but prior to the gubernatorial recall election in California in 2003, various plaintiffs filed suit in the same district court as Common Cause, seeking an injunction that would prevent the use of punch card technology in the recall election.

See Southwest Voter Registration Education Project v. Shelley, 278 F.Supp.2d 1131 (C.D.Cal.2003). The district court denied the request for the injunction, finding that res judicata and laches were viable defenses based on the Common Cause consent decree, that the plaintiffs were unlikely to succeed on the merits of their claims based on the short time until the election, and that the balance of hardships and the public interest weighed in favor of allowing the election to go forward as scheduled. Id.

In a fast moving process, the district court issued its ruling on August 20, 2003, and the case was argued before the Ninth Circuit on September 11. The court issued its opinion on September 15 and reversed the district court. Southwest Voter Registration Education Project v. Shelley, 344 F.3d 882 (9th Cir.2003), vacated by 344 F.3d 913, rev’d by 344 F.3d 914 (en banc). The panel stayed its decision and the court decided to hear the case en banc on September 22. The en banc court reversed the panel decision on the following day, which allowed the election to proceed days later.

The panel had concluded that the plaintiffs’ “Equal Protection Clause claim mirrors the one recently analyzed by the Supreme Court in Bush v. Gore.” Southwest Voter, 344 F.3d at 894. The panel cited Reynolds in which the Supreme Court held that “[i]t has been repeatedly recognized that all qualified voters have a constitutionally protected right to vote, and to have their votes counted.” 377 U.S. at 554, 84 S.Ct. 1362 (citations omitted). Citing precedent, the panel wrote that the case before it presented “a classic voting-rights equal protection claim.” Southwest Voter, 344 F.3d at 895. The panel cited Gray v.

Sanders, where the Court held that: “Every voter’s vote is entitled to be counted once. It must be correctly counted and reported.” 372 U.S. 368, 380, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963). Also discussed was Reynolds, where the Court held that “the weight of a citizen’s vote cannot be made to depend on where he lives.” Reynolds, 377 U.S. at 567, 84 S.Ct. 1362. According to the panel, all that the Constitution requires is some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied. Id. at 896, 84 S.Ct. 1362 (citations omitted).

The panel also concluded that strict scrutiny is ordinarily the appropriate standard in a situation akin to the one presented because the use of deficient technology affects the fundamental right to have one’s vote counted. Id. at 899, 84 S.Ct. 1362. Nevertheless, the court found that it need not reach the question because the plaintiffs demonstrated a likelihood of success on the merits regardless of the standard of review employed.

Id. at 900. “Plaintiffs have tendered sufficient evidence to demonstrate a likelihood of success in establishing that theré' is no rational basis for using voting systems that have been decertified as ‘unacceptable’ in some counties and not others.” Id. The case was then heard en banc and the panel decision was reversed. Southwest Voter Registration Education Project v. Shelley, 344 F.3d 914 (9th Cir.2003) (en banc). The court, in a per curiam opinion with no dissents, concluded that the district court did not abuse its discretion in denying the preliminary injunction. Id. at 918.

The court, however, did not reject outright the Equal Protection argument, noting its similarity to the claims advanced in Bush v. Gore, nor did it reject outright the plaintiffs’ Voting Rights Act claim. The court repeatedly emphasized that abuse of discretion is the standard for reviewing a district court’s denial of a preliminary injunction. Shelley, 344 F.3d at 917 (“The [abuse of discretion] standard of review is important to our resolution of this case.”); id. at 918 (“We review the district court’s decision to grant or deny a preliminary injunction for abuse of discretion.

Our review is limited and deferential.”) (internal citation omitted). The court then stated that: “We are met with legal authority on both sides of the contest. There is no doubt that the right to vote is fundamental, but a federal court cannot lightly interfere with or enjoin a state election.” Id. at 918 (citation omitted). In a short one paragraph discussion of the Equal Protection claim, the en banc court stated: “We have not previously had occasion to consider the precise equal protection claim raised here.

That a panel of this court unanimously concluded the claim had merit provides evidence that the argument is one over which reasonable jurists may differ.” Id. Nevertheless, with great heed paid to the principle that a federal court should not lightly enjoin a state election, the en banc court held that the “district court did not abuse its discretion in holding that the plaintiffs have not established a clear probability of success on the merits of their equal protection claim.” Id. (emphasis added). The court then turned to the plaintiffs’ Voting Rights Act claim, which it referred to as “stronger.” Id.

Nevertheless, noting a “significant dispute in the record, however, as to the degree and significance of the [residual vote] disparity,” the court concluded that “although plaintiffs have shown a possibility of success on the merits, we cannot say that at this stage they have shown a strong likelihood.” Id. at 918-19. A review of the lower court cases demonstrates consistent application of the principles established by the Supreme Court.

Each of the cases discussed above has recognized the equal protection and Voting Rights Act implications of the use of non-notice and disparate technology and we find much of their reasoning persuasive. We now turn to this Court’s treatment of right to vote cases. C. Sixth Circuit Precedent This Circuit has yet to review a claim of this precise ilk. The district court below and the defendants point to Mixon v. Ohio, 193 F.3d 389 (6th Cir.1999), as establishing the relevant framework for this Court’s analysis.

Mixon addressed the constitutionality of a state allowing the mayor to appoint a new school board for the Cleveland School District. This Court cited Supreme Court precedent acknowledging that voting is a fundamental right, and then discussed the differing standards of review applicable to equal protection claims. Id. at 402.

According to this Court, “[i]f the challenged legislation grants the right to vote to some residents while denying the vote to others, then we must subject the legislation to strict scrutiny and determine whether the exclusions are necessary to promote a compelling state interest.” Id. (citing Dunn v. Blumstein, 405 U.S. 330, 337, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972)). “If the legislation, however, does not infringe on the right to vote [and instead simply regulates a tangential aspect of the franchise], we examine the challenged statute under the rational basis standard.” Id.; see also Craigmiles v.

Giles, 312 F.3d 220, 223 (6th Cir.2002) (“When a statute regulates certain ‘fundamental rights’ (e.g. voting or abortion) or distinguishes between people on the basis of certain ‘suspect characteristics’ (e.g. race or national origin), the statute is subject to ‘strict scrutiny.’”).

The Mixon court proceeded to analyze the claim presented under rational basis because the statute did not infringe upon any right to vote — that is, “[although Plaintiffs have a fundamental right to vote in elections before them, there is no fundamental right to elect an administrative body such as a school board, even if other cities in the state may do so.” Mixon, 193 F.3d at 403 (citations omitted). IV. A. Standard of Review “On appeal from a judgment entered following a bench trial, we review the district court’s factual findings for clear error and its legal conclusions de novo.” Pressman v. Franklin Nat.

Bank, 384 F.3d 182, 185 (6th Cir.2004). B. Analysis Supreme Court precedent and our own Mixon framework instructs that if the Ohio statute permitting localities to use deficient voting technology “infringe[s] on the right to vote,” then strict scrutiny applies; if the statute does not “infringe on the right to vote,” and merely regulates some tangential aspect of the franchise, then rational basis review applies. Mixon, 193 F.3d at 402. This begs the question of what the “right to vote” encompasses. We easily conclude that the right to have one’s vote counted on equal terms is part of the right to vote.

No other conclusion is possible from the case law and thus, strict scrutiny applies. All of the precedent indicates that having one’s vote properly counted is fundamental to the franchise.

See e.g., Bush, 531 U.S. at 104-05, 121 S.Ct. 525 (indicating that having one’s vote counted on equal terms with others in the relevant jurisdiction is the quintessential “right to vote” case); Reynolds, 377 U.S. at 555, 84 S.Ct. 1362 (“[T]he right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.”); South, 339 U.S. at 279, 70 S.Ct. 641 (Douglas, J., dissenting) (“There is more to the right to vote than the right to mark a piece of paper and drop it in a box or the right to pull a lever in a voting booth.

The right includes the right to have the ballot counted.

It also includes the right to have the vote counted at full value without dilution or discount.”) (citations omitted); Colegrove, 328 U.S. at 569-71, 66 S.Ct. 1198 (Black, J., dissenting) (“The Constitutionally guaranteed right to vote and the right to have one’s vote counted clearly imply the policy that state election systems, no matter what their form, should be designed to give approximately equal weight to each vote cast.”); Classic, 313 U.S. at 315, 61 S.Ct. 1031 (“Obviously included within the right to choose, secured by the Constitution, is the right of qualified voters within a state to cast their ballots and have them counted.”); 42 U.S.C.1973Z (c)(1) (defining the right to vote to include “having such ballot counted properly and included in the appropriate total of votes cast”).

Case law, statutory

definitions, and common sense indicate that the “right to vote” is infringed in this case by the use of the two deficient technologies challenged by the plaintiffs. The distinction in Mixon between elections where persons are entitled to vote (strict scrutiny) and a statute authorizing appointment of administrators instead of having an election (rational basis) further confirms our reasoning here. Strict scrutiny requires us to determine whether the use of the two challenged technologies in some jurisdictions but not others is a practice “narrowly tailored to further compelling governmental interests.” Grutter v.

Bollinger, 539 U.S. 306, 326, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003). Under this standard, the State’s proffered justifications of cost and training are wholly insufficient to sustain its continued certification of the technologies. Administrative convenience is simply not a compelling justification in light of the fundamental nature of the right. See Frontiero v.

Richardson, 411 U.S. 677, 690, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) (plurality) (“[W]hen we enter the realm of ‘strict judicial scrutiny’ there can be no doubt that ‘administrative convenience’ is no shibboleth, the mere recitation of which dictates constitutionality.”). Moreover, Ohio’s reliance on the cost of upgrading the technology fails in light of the monies already devoted to the process. See Shapiro v.

Thompson, 394 U.S. 618, 633, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (“[CJosts cannot justify an otherwise invidious classification.”); see also Dunn, 405 U.S. at 343, 92 S.Ct. 995 (“And if there are other, reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference.”). Additionally, Ohio has used cost as if it were a silver bullet. Any change from the status quo necessarily involves some cost.

The State has failed to put forth any evidence indicating that it cannot manage the costs and instead, the evidence indicates that the State has either budgeted for the transition from its own funds or through funds provided by the federal government. The mere fact that there is some cost involved does not make that factor compelling. Further, the State’s alleged concern with voter fraud, likewise, in this case, is not compelling in light of the Secretary of State’s report concluding that the technology can securely be implemented. See also HB 262, 125 Gen. Assem., Reg. Sess. (Ohio 2004).

Finding no compelling reason supporting the State’s continued certification of the deficient non-notice technology, i.e., punch-card system and central-count optical scan systems, and in light of the fundamental nature of the right to vote, the State’s actions violate the Equal Protection Clause. The continued certification of this technology by the Secretary of State does not provide the minimal adequate procedural safeguards to prevent the unconstitutional dilution of votes based on where a voter resides. See Bush, 531 U.S. at 109, 121 S.Ct. 525.

Unequal treatment and unfairness are perpetrated by allowing this technology to remain certified and the State’s reasons for maintaining this disparate system are far from compelling. Our decision is consistent with binding Supreme Court precedent. In Harper, the Supreme Court held that using wealth or ability to pay as a factor in the power of the franchise “is to introduce a capricious or irrelevant factor.” Harper, 383 U.S. at 668, 86 S.Ct. 1079.

Likewise, the maintenance of disparate technologies — that the State itself has recognized is inherently flawed and that “[t]he evidence is overwhelming that thousands of Ohio voters have been disenfranchised by antiquated voting equipment” — debases and devalues citizens’ votes and is arbitrary and capricious. The technology provided to a voter by the State, like that voter’s wealth, has no relation to voting qualifications or the value of that vote. “[T]he right to vote is too precious, too fundamental to be so burdened or conditioned.” Harper, 383 U.S. at 670, 86 S.Ct. 1079; see also Hasen, Bush v.

Gore and the Future of Equal Protection Law in Elections, 29 Fla. St. U.L.Rev. at 395 (concluding that the disparate treatment that results from “different voting systems with different error rates ... is all the more disturbing to the extent that it correlates with wealth, looking functionally like the poll tax the Court struck down in Harper ”). Furthermore, as in Reynolds: Overweighing and overvaluation of the votes of those living [in a county with adequate technology] has the certain effect of dilution and undervaluation of the voters of those living [in a county with deficient technology].

The resulting discrimination against those individual voters living in disfavored areas is easily demonstrable mathematically. Them right to vote is simply not the same right to vote as that of those living in a favored part of the State ... Weighting the votes of citizens differently, by any method or means, merely because of where they happen to reside, hardly seems justifiable. 377 U.S. at 563, 84 S.Ct. 1362 (emphasis added). By maintaining a system in which these two technologies are utilized, voters in Ohio vote under two separate standards.

Although voters approach the polls with the opportunity to vote in the same elections for the same candidates, once they step into the voting booth, they have an unequal chance of their vote being counted, not as a result of any action on the part of the voter, but because of the different technology utilized. Voters able to utilize notice technology choose candidates and before their vote is turned in and counted, the technology notifies them of any errors that would result in the vote being disregarded.

Those voters forced to use non-notice technology are not notified of any errors in their ballot and, should errors exist, their votes are disregarded; moreover, voters using the two challenged technologies have an additional likelihood of disenfranchisement due to the inherent deficiencies of the punch-card and central-count optical scan. The plaintiffs have alleged vote dilution due to disparate use of certain voting technologies. They have demonstrated their allegations mathematically and from the testimony of witnesses on both sides of the contests.

The State’s own documents and public statements support the plaintiffs’ claims. The State of Ohio concedes that punch-card technology is substandard. See, e.g., Secretary of State’s Help America Vote Act Report (“Boards of election should upgrade their voting systems to ne

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