State of FLORIDA, Plaintiff, v. UNITED STATES of America, et al., Defendants, 885 F. Supp. 2d 299

PER CURIAM: The State of Florida brings this action for declaratory relief under

section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c.

Section 5 prohibits the enforcement of any change in voting practices or procedures in certain states and other covered jurisdictions, including five of Florida’s counties, unless and until the change is approved by the Attorney General of the United States or by a three-judge panel of the United States District Court for the District of Columbia.

In this three-judge district court proceeding, Florida seeks a declaratory judgment that certain recent changes to its election laws “neither ha[ve] the purpose nor will have the effect of denying or abridging the right to vote on account of race or color” or membership in a language minority group. 42 U.S.C. § 1973c(a). Florida amended its voting laws in 2011, making some 80 sets of changes from prior provisions. The State submitted the changes to the Attorney General for administrative approval, and the Attorney General precleared 76 of them.

Florida then withdrew the remaining four sets of changes from its request for administrative preclearance, and instead filed a complaint seeking judicial preclearance of those changes. After the complaint was filed, Florida resubmitted one of the four changes (regarding the procedures for constitutional amendments proposed by initiative) to the Attorney General for administrative approval. Thereafter, the Attorney General precleared that change, and Florida voluntarily dismissed that count of its complaint.

One week ago, Florida filed a motion to voluntarily withdraw another set of changes (regarding requirements for third-party voter registration organizations (TPROs)), and to inform the court that it had amended several of the TPRO changes for which it still seeks preclearance. Because this development requires a new round of briefing and review, we will address the remaining TPRO changes at a later date. Two categories of voting changes will be addressed in this opinion. In brief, those changes would: (1) amend the available days and hours that Florida counties may use for early in-person voting, see Fla.

Stat. § 101.657(d) (2011); and (2) amend the voting procedures for registered voters who move between Florida counties and seek to vote in their new county of residence (“inter-county movers”), see id. § 101.045. The parties have filed extensive submissions regarding the law applicable to our task of reviewing the voting changes for purposes of preclearance. As we discuss below, Florida’s submission urges an unconventional reading of

section 5, which we largely reject. The Attorney General, supported by more than two dozen individuals and organizations who were permitted to intervene as defendants in this action, proffers a more traditional reading, which we largely adopt. The parties have also developed a voluminous evidentiary record, comprised of over 11,000 pages of legislative hearings, deposition transcripts, expert reports, and other exhibits. The parties then filed proposed findings of fact and conclusions of law on the basis of that written record.

The parties agreed that the record was sufficient for the court to reach a decision, and that five trial testimony was unnecessary. The court did, however, hear five hours of oral argument on all aspects of the statutory preclearance question. Thereafter, the court received supplemental briefing and submissions from the parties on several discrete questions of law and fact. Upon consideration of the entire record, our conclusions may be summarized as follows.

First, we conclude that we cannot, at this time, preclear Florida’s early voting changes because the State has failed to satisfy its burden of proving that those changes will not have a retrogressive effect on minority voters. Specifically, the State has not proven that the changes will be nonretrogressive if the covered counties offer only the minimum number of early voting hours that they are required to offer under the new statute, which would constitute only half the hours required under the prior law.

Following an approach approved by the Supreme Court, however, we also conclude that if Florida and the covered counties were to submit a preclearance plan that offered early voting for the maximum number of hours authorized by the new statute, which would be exactly the same number as under the prior law, and did so on a standard 7 a.m. to 7 p.m. schedule, it is likely that Florida would be able to satisfy its burden of proving that the overall effect of its early voting changes would be nonretrogressive.

Second, we conclude that Florida has satisfied its burden of proving that the changes to the procedures for inter-county movers neither were enacted with a discriminatory purpose nor will have a retrogressive effect on minority voters, and that those changes are therefore entitled to preclearance. The opinion that follows summarizes our findings of fact and sets forth our conclusions of law on the question of statutory preclearance. The appendix to this opinion separately sets forth our findings of fact. See Fed.R.CivP. 52. I. Background and Procedural History A.

Statutory Background This court has been convened as a three-judge district court with jurisdiction to hear and determine this declaratory judgment action under

section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c. See 28 U.S.C. § 1346(a)(2); id. §§ 2201, 2284. The Act was enacted to protect the fundamental rights guaranteed by the Fifteenth Amendment, and to “banish the blight of racial discrimination in voting.” South Carolina v. Katzenbach, 383 U.S. 301, 308, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966).

Section 5 requires covered states and political subdivisions to seek advance approval, or “preclearance,” from the Attorney General or a three-judge district court before administering any new “voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting.” 42 U.S.C. § 1973e(a). To obtain preclearance, a covered jurisdiction must show that its proposed voting change “neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in

section 1973b(f)(2) of this title [proscribing voting restrictions based on membership in a language minority group].” Id. Five of Florida’s sixty-seven counties are subject to the preclearance requirements of

section 5. They, along with a number of states and other local jurisdictions, were subjected to

section 5 coverage by the 1975 amendments to the coverage formula set forth in

section 4(

b) of the Act.

Section 4(b)’s coverage formula subjects jurisdictions to

section 5 preclearance obligations based on a combination of the maintenance of a prohibited “test or device” and low voter turnout in certain elections.

The 1975 amendments expanded the definition of “test or device” to include “any practice or requirement by which any State or political subdivision provided,” as of November 1, 1972, “any registration or voting notices, forms, instructions, assistance, or other materials or information relating to the electoral process, including ballots, only in the English language, where the Director of the Census determines that more than five per centum of the citizens of voting age residing in such State or political subdivision [we]re members of a single language minority.” 42 U.S.C. § 1973b(f)(3).

The statute defines “language minorities” to include “persons who are American Indian, Asian American, Alaskan Native or of Spanish heritage.” Id. § 1973¿(c)(3). As a result of these language minority amendments, five Florida counties — Hillsborough, Monroe, Collier, Hendry, and Hardee — became subject to coverage under

section 5. See 28 C.F.R. Pt. 51, App.; see also 41 Fed.Reg. 34329 (Aug. 13, 1976); 40 Fed.Reg. 43746 (Sept. 23,1975). Although Florida itself is not a covered jurisdiction under

section 5, it is well settled that “the Act’s preclearance requirements apply to measures mandated by a noncovered State to the extent that these measures will effect a voting change in a covered county.” Lopez v. Monterey Cnty., 525 U.S. 266, 269, 119 S.Ct. 693, 142 L.Ed.2d 728 (1999). Accordingly, to the extent that Florida seeks to administer any of its statewide voting changes in its five covered counties, those changes must be submitted for preclearance. Id. at 278, 119 S.Ct. 693; see 28 C.F.R. § 51.23(a). Moreover, for reasons explained in more detail below, see infra

Part II.A, it is clear that both of the electoral changes for which Florida seeks approval come within the purview of the Act, because they both involve changes to voting qualifications or prerequisites to voting, or “standard[s], practice^], or procedure[s] with respect to voting.” 42 U.S.C. § 1973c(a). Indeed, although Florida has argued that certain formulations of the

section 5 “effect” test do not apply to these changes and that the requirement that its statewide changes be submitted for preclearance is unconstitutional, the State does not dispute its statutory obligation under

section 5 to submit the changes at issue here for either administrative or judicial preclearance. See [91] Fla,’s Proposed Findings of Fact & Conclusions of Law (“Fla. Br.”); [147] Third Am. Compl. (“Fla. Compl.”). B. Procedural History The voting changes that Florida has submitted for our preclearance review were included in an omnibus bill, Committee Substitute for Committee Substitute for House Bill 1355 (“HB 1355”), which made approximately 80 sets of changes to Florida’s election procedures.

That bill moved through the Florida House and Senate over a period of several months in the spring of 2011, and was signed into law on May 19, 2011 by the Governor. See Fla. Laws, ch. 2011-40; see also Fla. Stat. §§ 101.045, 101.657(d) (2011) (codifying the particular voting changes at issue in this case). As we have indicated, Florida originally submitted HB 1355 in its entirety for administrative preclearance by the Department of Justice, and the vast majority of the changes in that law — most of which were minor or ministerial in nature — were precleared by the Attorney General on August 8, 2011.

See A118 (Revised Jointly Stip. Facts ¶ 8). In the meantime, however, Florida withdrew four sets of its voting changes from the administrative preclearance process. See A219 (Letter from Daniel Nordby, Gen. Counsel, Fla. Dep’t of State (July 29, 2011)).

Those four changes included the early voting and inter-county mover changes at issue before us in this opinion, along with changes imposing additional requirements on third-party voter registration organizations (TPROs) and amendments to the provisions governing the time frame during which signatures on citizen initiative petitions are valid (the “citizen initiative changes”). Id. After withdrawing those changes from administrative review, Florida then filed a complaint in this court seeking judicial preclearance of those four changes. See [1] Compl.

Early in the litigation, Florida amended that complaint twice: once to assert claims — which we will address in future proceedings — challenging the constitutionality of the Voting Rights Act, see [39] First Am. Compl. ¶¶ 107-116; and once to include a request for judicial preclearance of amended state regulations implementing the TPRO changes, see [54] Second Am. Compl. ¶¶ 85-86 & Ex. B. Over the following months, the parties conducted extensive discovery, and, after the discovery period closed on February 29, 2012, continued to take de bene esse depositions and submit declarations by their respective experts.

By late May, the parties had submitted proposed conclusions of law and findings of fact. They then requested that we forego a live trial and decide the case on the basis of the written record alone. The court held five hours of oral argument on June 21, followed by multiple rounds of supplemental briefing on issues raised during the argument. Since the filing of Florida’s Second Amended Complaint, the scope of our required review has narrowed considerably.

First, in March 2012 the United States informed this court that, after conducting discovery and reviewing the record, it had concluded that Florida had met its burden of demonstrating that the citizen initiative changes were neither enacted with a discriminatory purpose nor will have a retrogressive effect on minority voters. See [79] March 8, 2012 Mem. Order at 2-3. Accordingly, Florida re-submitted those changes for administrative preclearance, and on March 21, 2012, the Attorney General informed the State that no objection would be interposed. See [84] United States’ Notice to the Court.

The parties then filed a stipulation of dismissal as to Count Two of Florida’s Second Amended Complaint, which dealt with those citizen initiative changes. See [85] Stip. of Dismissal. Florida’s stipulation of dismissal left us with only three statutory preclearance counts to review, dealing respectively with the TPRO, inter-county mover, and early voting amendments. But recent developments have again narrowed the issues before us.

In particular, a federal district court in Florida issued a preliminary injunction on May 31, 2012 against many of the TPRO changes in HB 1355 and its implementing rule, finding that the plaintiffs in that case were likely to prevail on their First Amendment and National Voter Registration Act challenges to those changes. See League of Women Voters of Fla. v. Browning, 863 F.Supp.2d 1155, 1166-67 (N.D.Fla.2012).

On June 12, Florida informed us that it would “no longer seek in this action to preclear the [TPRO] changes that the [district court in Florida] preliminarily enjoined.” [109] Statement Regarding the Effect of the Recent Order in the N.D. Fla. at 2. Florida stated in that filing that it would “voluntarily withdraw the enjoined [TPRO] Changes from this judicial preclearance action,” id. at 5, indicating that it was waiting for a clarification from the Florida district court before doing so, see id. at 3 n. 2. Several weeks passed without further word from the State.

We convened a status conference on July 16 to determine whether Florida had made a decision regarding which TPRO provisions it intended to withdraw from this action, and which it would still seek to preclear. Florida advised that it had not yet made a final decision. Then, approximately one week ago, the State informed us that it had settled the TPRO litigation in Florida. See [104] Mem. of Points and Authorities in Support of Pl.’s Mot. for Leave to Amend the Compl. at 1.

It filed a motion to amend its complaint in this case, seeking to remove from its request for preclearance those TPRO changes that the district court in Florida had enjoined, while keeping the remaining changes, some in a modified form. See id. at 4 n. 1, 5. On August 13, Florida also advised the court that it would promptly submit the remaining, non-enjoined TPRO changes to the Department of Justice for administrative preclearance. On August 15, the court granted Florida’s unopposed motion to amend its complaint to reflect that it no longer seeks preelearance for the enjoined changes.

The effect of this development has been to remove from our consideration the most controversial provisions of the TPRO amendments — including a stringent 48-hour deadline for submission of completed voter registration applications, a requirement that registration agents sign a “sworn statement” listing the penalties for fraudulent voter registration, and a mandate that TPROs track and account for all registration forms provided to and received from their employees and volunteers, and then file monthly reports with the State reflecting those tallies.

But Florida’s recent filing also means that we must hold a new round of briefing on the TPRO changes that remain. We also must give the Department of Justice an opportunity to consider whether to preclear the remaining changes administratively. This process could take several more weeks, even as the covered counties seek to finalize their plans for the November election. Accordingly, having previously bifurcated this case into a preclearance part and a constitutional

part in order to expedite the decision on preclearance, see supra note 2, we now trifurcate it. This opinion will address only those matters fully before us— the early voting and inter-county mover changes — for which there is no reason for further delay, and for which the interests of judicial efficiency and finality counsel an expeditious resolution.

Once the parties have had an opportunity to brief the TPRO changes for which Florida still seeks preclearance, and the Attorney General has made a determination regarding whether to preclear those changes administratively, we will address the remaining TPRO provisions if there are any. Thereafter, if our dispositions have not rendered a decision on Florida’s constitutional challenge moot or otherwise unnecessary, we will hold oral argument on those issues. C.

Voting Changes at Issue In their final form, the two sets of voting amendments at issue in this opinion make a number of changes to Florida’s practices and procedures governing early voting and inter-county movers. We examine those changes in greater detail in the course of our analysis and discussion below. In brief, however, the amendments make the following changes from Florida’s previous voting laws. 1.

Early Voting Before the passage of HB 1355, Florida’s early voting law provided early in-person voting for a potential 14-day period, beginning on “the 15th day before an election and end[ing] on the 2nd day before the election.” Fla. Stat. § 101.657(d) (2010). That prior law required each county to offer early voting for exactly 8 hours per day on weekdays and exactly 8 hours in the aggregate each weekend, yielding a total of 96 hours of early voting.

Early voting sites were to “open no sooner than 7 a.m. and close no later than 7 p.m. on each applicable day,” but within this constraint local supervisors of elections in each Florida county had the discretion to select the specific voting hours for each early voting day. Id. In Florida’s five covered counties, local supervisors of elections chose a range of voting hours between 7 a.m. and 7 p.m. depending on whether it was a primary or general election and what voting site was involved.

In addition, the prior law gave election supervisors discretion in choosing whether their 8 aggregate weekend early voting hours would fall on a Saturday, a Sunday, or both. See id. In each of Florida’s five covered counties, local election supervisors exercised that discretion to offer 8 hours of early voting on each Saturday and none on either Sunday. This meant that in each of the five covered counties, only 12 of the available 14 days of early voting were actually used (Monday through Saturday of each of the two weeks before the election).

HB 1355 amends the number of days, the number of hours, the specific hours, and the weekend times that early voting may be offered in Florida. First, under the new law, the early voting period begins “on the 10th day before an election ... and end[s] on the 3rd day before the election,” for a total of only 8 days instead of the previous 12. Fla. Stat. § 101.657(d) (2011).

Second, the law now gives local election supervisors the discretion to determine the number of daily hours of early voting in their counties, subject to the constraint that “no less than 6 hours and no more than 12 hours” be offered on each of the 8 early voting days. Id. As a result, Florida’s covered counties might still offer the same total hours of early voting (96 hours) that were required under the pre-2011 law, but only if their local election supervisors decide to offer the maximum 12 hours of early voting on each of the 8 days.

If, on the other hand, a local supervisor chooses to offer the minimum number of hours (ie., 6 hours per day), then the early voting period would last only 48 hours in total — exactly half of the hours that were offered under the prior law. Third, the new law also removes the requirement that voting take place between 7 a.m. and 7 p.m. each day. Instead, local supervisors of elections have the discretion to determine the specific hours of early voting in their counties, as long as they offer “no less than 6 hours and no more than 12 hours” each day. Id.

In the event that local election supervisors offer the maximum 12 hours of early voting on a given day, then the early voting hours for that day would necessarily include hours that fall outside the standard 8-hour workday extending from 9 a.m. to 5 p.m. However, in the event election supervisors offer the minimum 6 hours of early voting on a given day, the 6-hour early voting day may be entirely within, entirely outside, or straddle the standard workday. Fourth, the new early voting statute also mandates some additional weekend hours of early voting.

In particular, the new early voting period runs from the Saturday two weekends before the election to the Saturday immediately before Election Day, see id., meaning that the early voting period under HB 1355 now requires three weekend days of early voting: two Saturdays and one Sunday. And as already explained, the new statute mandates anywhere from 6 to 12 early voting hours on each day. Id. Accordingly, if HB 1355 were implemented in the covered counties, it would result in at least 6 (and up to 12) hours of Sunday early voting that were never before offered in those counties.

Moreover, election officials would also have the discretion to offer up to 36 total hours of weekend early voting (12 hours per day on each of 3 weekend days) — for a net gain of 20 weekend early voting hours over the prior law, which offered exactly 16 weekend hours (8 hours in the aggregate on each of two weekends). 2. Inter-County Movers Under the pre-2011 statute governing inter-county movers, registered Florida voters who moved to a new county of residence without informing the relevant supervisor of elections could still update their addresses at the polls and then vote a regular ballot.

Specifically, before the enactment of HB 1355, inter-county movers were simply required to complete an affidavit of change of address (or a new voter registration application), listing their new address of residence and affirming that they had not already voted in the precinct of their former residence. See Fla. Stat. § 101.045(2)(a), (c) (2010). After their eligibility to vote was verified, such voters were then permitted to cast a regular ballot, which would be canvassed and counted like all other ballots. Id. § 101.045(2)(d).

After the 2011 amendments, however, “an elector whose change of address is from outside the county may not change his or her legal residence at the polling place and vote a regular ballot.” Fla. Stat. § 101.045(2)(b) (2011). Instead, such inter-county movers are now only “entitled to vote a provisional ballot.” Id. The only exception is for active uniformed services voters and members of their families, who are still permitted to cast a regular ballot after affirming their inter-county change of address and having their eligibility verified. Id.

Once completed, provisional ballots cast by inter-county movers “shall be placed in a secrecy envelope and thereafter sealed in a provisional ballot envelope.” Id. § 101.048(1). The provisional ballots will then be deposited in a ballot box and returned to election officials, whereupon the county canvassing board will examine the ballots to determine if the voters were eligible to vote at that precinct and had not already cast a ballot in the election. Id. § 101.048(2)(a).

Florida law specifically provides that a provisional ballot “shall be counted unless the canvassing board determines by a preponderance of the evidence that the person was not entitled to vote.” Id. (emphasis added); see also id. § 101.048(2)(b)(l). Finally, as relevant here, the 2011 amendments to Florida’s Election Code also make pre-election address changes easier for registered Florida voters. Under the pre-2011 law, inter-county address changes had to be completed “using a voter registration application signed by the elector.” Fla. Stat. § 97.1031(2) (2010).

Now, however, registered voters can notify the supervisor of elections of their change of address by “[submitting the change on a voter registration application or other signed, written notice,” or by “[c]ontacting the supervisor of elections via telephone or electronic means.” Fla. Stat. § 97.1031(l)(b) (2011). Florida seeks judicial preclearance of each set of voting changes outlined above. To obtain preclearance under

section 5, a covered jurisdiction must demonstrate that its proposed voting changes “neither ha[ve] the purpose nor will have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in

section 1973b(f)(2) of this title [proscribing voting restrictions based on membership in a language minority group].” 42 U.S.C. § 1973e(a). The burden of proving by a preponderance of the evidence that the voting changes at issue neither have an impermissible purpose nor will have an impermissible effect rests on the plaintiff — in this case, the State of Florida. Reno v. Bossier Parish Sch. Bd. (“Bossier Parish I”), 520 U.S. 471, 478, 117 S.Ct. 1491, 137 L.Ed.2d 730 (1997); City of Rome v. United States, 446 U.S. 156, 184 n. 18, 100 S.Ct. 1548, 64 L.Ed.2d 119 (1980); Beer v.

United States, 425 U.S. 130, 140-41, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976); Georgia v. United States, 411 U.S. 526, 538, 93 S.Ct. 1702, 36 L.Ed.2d 472 (1973); City of Port Arthur v. United States, 517 F.Supp. 987, 1011 (D.D.C.1981), aff'd, 459 U.S. 159, 103 S.Ct. 530, 74 L.Ed.2d 334 (1982); City of Petersburg v. United States, 354 F.Supp. 1021, 1027 (D.D.C.1972), summarily aff'd, 410 U.S. 962, 93 S.Ct. 1441, 35 L.Ed.2d 698 (1973); see also Reno v. Bossier Parish Sch. Bd. (“Bossier Parish II”), 528 U.S. 320, 328, 120 S.Ct. 866, 145 L.Ed.2d 845 (2000), superseded by statute on other grounds, 42 U.S.C. § 1973c(e).

We consider each of Florida’s proposed voting changes to determine whether the State has met that burden. Because any evidence relating to the retrogressive effects (or lack thereof) of the changes may inform our analysis of possible discriminatory purpose, see Vill. of Arlington Heights v. Metro. Housing Dev. Co., 429 U.S. 252, 266, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), we address the effect issue first. See City of Port Arthur, 517 F.Supp. at 1011. II. Effects We begin by setting forth the legal standards applicable to the effect prong of

section 5. Thereafter, we will apply those standards to Florida’s two proposed voting changes. A. Legal Standards The test for assessing whether a given voting change will have “the effect of denying or abridging the right to vote on account of race[,] color,” or membership in a language minority group, 42 U.S.C. § 1973c(a), has been stated in a relatively straightforward manner. In Beer, the Supreme Court held that, to be entitled to preclearance under the effect prong of

section 5, a proposed change must not “lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.” 425 U.S. at 141, 96 S.Ct. 1357; accord Bossier Parish I, 520 U.S. at 478, 117 S.Ct. 1491. In other words, a voting change “has a prohibited ‘effect’ only if it is retrogressive,” meaning that it “worsenfs] the position of minority voters” in comparison to the preexisting voting standard, practice, or procedure. Bossier Parish II, 528 U.S. at 324, 120 S.Ct. 866.

By definition, this “so-called ‘retrogression’ analysis” requires us to “comparte] the existing voting scheme” — often known as the “benchmark” practice — with the “scheme that would result from the proposed change.” State of New York v. United States, 874 F.Supp. 394, 397 (D.D.C.1994). “If the position of minority voters is no worse under the new scheme than it was under the old scheme,” then the proposed change does not have an impermissibly retrogressive effect. Id. (citing City of Lockhart v. United States, 460 U.S. 125, 132-35, 103 S.Ct. 998, 74 L.Ed.2d 863 (1983)).

If, on the other hand, the change would lead to a retrogression in the position of minority voters in the covered jurisdiction, then preclearance must be denied. Beer, 425 U.S. at 141, 96 S.Ct. 1357. Lurking in the background of this seemingly simple formulation, however, are a number of potential complications. The central problem for our purposes is that “[t]he Supreme Court has never comprehensively defined ‘retrogression,’ nor has it engaged in any detailed discussion of what constitutes the ‘effective exercise of the electoral franchise’ by minority voters.” Georgia v.

Ashcroft, 195 F.Supp.2d 25, 74 (2002), vacated on other grounds, 539 U.S. 461, 123 S.Ct. 2498, 156 L.Ed.2d 428 (2003). In particular, the Court has not specifically addressed how the retrogression test applies to “ballot access” laws {e.g., laws governing the procedures for voting and voter registration) such as the ones before us. Indeed, the case law interpreting the

section 5 effect test deals primarily with so-called “second generation barriers ... to preventing] minority voters from fully participating in the electoral process,” H.R.Rep. No. 109-478, at 2 (2006), 2006 U.S.C.C.A.N. 618, 618: for example, changes involving annexations, redistricting, or the creation or expansion of at-large electoral systems.

Despite— or perhaps because of — the Voting Rights Act’s central concern with prohibiting practices and procedures that impede minority voters from casting a ballot, see, e.g., 42 U.S.C. § 1973b(a) (suspending all “test[s] or device[s]” in covered jurisdictions), there are no cases squarely addressing how the retrogression analysis should function in a ballot access case like this one. Nonetheless, our examination of the statutory text and relevant lines of authority allows us to draw some conclusions about applying the

section 5 effect test to this case. In brief, we conclude that a change that alters the procedures or circumstances governing voting and voter registration will result in retrogression if: (1) the individuals who will be affected by the change are disproportionately likely to be members of a protected minority group; and (2) the change imposes a burden material enough that it will likely cause some reasonable minority voters not to exercise the franchise.

We emphasize that the two-part nature of this inquiry means that the retrogression test in ballot access cases is hot solely one of “disparate impact,” as Florida fears. See Fla. Br. 57. In other words, a change is not retrogressive simply because it deals with a method of voting or registration that minorities use more frequently, or even because it renders that method marginally more difficult or burdensome.

Rather, to be retrogressive, a ballot access change must be sufficiently burdensome that it will likely cause some reasonable minority voters not to register to vote, not to go to the polls, or not to be able to cast an effective ballot once they get to the polls. This inquiry is a “fact-intensive” one, and requires us to “carefully scrutinize the context in which the proposed voting changes will occur.” Georgia v. Ashcroft, 195 F.Supp.2d at 76. In so doing, we do not focus solely on the burdens imposed by a voting change, but rather must also take account of any off-setting, or “ameliorative,” adjustments.

See City of Richmond, 422 U.S. at 370-71, 95 S.Ct. 2296; City of Petersburg, 354 F.Supp. at 1031. And in the context of this particular case, where only five of Florida’s counties are subject to the requirements of

section 5, we must look at the effects of the voting changes on minority voters in only those five covered counties. See Lopez, 525 U.S. at 284, 119 S.Ct. 693 (“Section 5, as we interpret it today, burdens state law only to the extent that that law affects voting in jurisdictions properly designated for coverage.” (emphasis added)). Finally, as we have said, Florida bears the burden of proving that the voting changes at issue are non-retrogressive. See, e.g., City of Rome, 446 U.S. at 184 n. 18, 100 S.Ct. 1548; Beer, 425 U.S. at 140-41, 96 S.Ct. 1357. In settling upon the retrogression standard that we have outlined above, we reject Florida’s novel arguments concerning

section 5 — arguments that question the traditional understanding of the section’s effect test or that would read the test out of the statute altogether. We discuss those arguments in the following paragraphs. 1. Florida’s most far-reaching contention is that the effect prong of

section 5 does not apply to this case at all. This, the State says, is because the 2006 amendments to the Voting Rights Act made the Act inapplicable to changes in ballot access laws. As relevant here, the 2006 amendments added two sections to the Act. See Pub. L. No. 109-246, 120 Stat. 577 (2006).

Section 5(

b) clarified that a voting change “denies or abridges the right to vote within the meaning of

section 5(

a) if it “will have the effect of diminishing the ability of any citizens of the United States on account of race or color [or membership in a language minority group] ... to elect their preferred candidates of choice.” 42 U.S.C. § 1973c(b). And

section 5(

d) further explained that the purpose of

section 5(b) “is to protect the ability of [minority] citizens to elect their preferred candidates of choice.” Id § 1973c(d). Florida maintains that these amendments made “ability to elect” the only relevant consideration under the

section 5 effect test. And it further argues that, when Congress used the phrase “ability to elect,” it meant the ability of minorities as a group to elect candidates of the group’s choice. In Florida’s view, only voting changes that dilute a minority group’s vote — like redistricting or annexation — can normally impact a minority group’s ability to elect, whereas ballot access measures— like those at issue here — normally cannot. Accordingly, Florida concludes,

section 5’s effect test can play no role in this case. See Fla. Br. 49, 51-53. Contrary to Florida’s view, however, the 2006 amendments did not inoculate covered jurisdictions from

section 5 review when making changes in ballot access rules. Election law changes dealing with ballot access have long been regarded as the kinds of changes that are at the core of the

section 5 preclearance requirement. See Nw. Austin Mun. Utility Dist. No. One v. Holder, 557 U.S. 193, 198, 129 S.Ct. 2504, 174 L.Ed.2d 140 (2009) (“We have interpreted the requirements of § 5 to apply not only to the ballot-access rights guaranteed by § 4, but to drawing district lines as well.” (emphasis added)). Indeed, the Voting Rights Act itself defines “voting” to include “all action necessary to make a vote effective ..., including, but not limited to, registration, ... casting a ballot, and having such ballot counted properly.” 42 U.S.C. § 1973i(c)(l).

The voting changes at issue in this opinion— which impose additional restrictions on early voting and polling place procedures for inter-county movers — fall squarely within that expansive definition of voting rights. Moreover, although most of

section 5 case law involves challenges to redistricting, annexation, and other potential forms of vote dilution, it is plain that laws that make it difficult for minority voters to register to vote or cast a ballot can just as readily — if not more readily- — -lead to a “retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.” Beer, 425 U.S. at 141, 96 S.Ct. 1357. The 2006 amendments to the Voting Rights Act did nothing to alter that basic framework.

As relevant here, those amendments simply clarify that retrogressive effects include any diminution in minority voters’ ability to elect their candidates of choice. The language added to

section 5(b), for example, provides: Any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting that has the purpose of or will have the effect of diminishing the ability of any citizens of the United States on account of race or color, or in contravention of the guarantees set forth in

section 1973b(f)(2) of this title, to elect their preferred candidates of choice denies or abridges the right to vote within the meaning of subsection (

a) of this section. 42 U.S.C. § 1973e(b) (emphasis added). That language merely supplements rather than supplants the broad requirement imposed on covered jurisdictions — in the original and still extant

section 5(a) — to demonstrate that their voting changes will not “have the effect of denying or abridging the right to vote on account of race or color” or membership in a language minority group. Id. § 1973c(a). Likewise, the language added to

section 5(

d) states: “The purpose of subsection (

b) of this

section is to protect the ability of [minority] citizens to elect their preferred candidates of choice.” Id. § 1973e(d). But that provision refers back only to subsection (b); it does not affect or construe subsection 5(a), nor does it purport to make “ability to elect” the only relevant test for

section 5 purposes. Furthermore, an examination of the legislative history of the 2006 reauthorization confirms that the purpose behind adding the “ability to elect” language in 42 U.S.C. § 1973c(

b) and (

d) was simply to legislatively overrule a particular

interpretation of the effect prong offered by the Supreme Court in one case: Georgia v. Ashcroft, 539 U.S. 461, 123 S.Ct. 2498, 156 L.Ed.2d 428 (2003).

In that case, which involved allegations of vote dilution in the redistricting context, the Court adopted a multi-factor “totality of the circumstances” test, emphasizing that retrogression for vote dilution purposes should be evaluated by reference to “all the relevant circumstances, such as the ability of minority voters to elect their candidate of choice, the extent of the minority group’s opportunity to participate in the political process [through ‘influence districts’ and other means], and the feasibility of creating a nonretrogressive plan.” Id. at 479, 123 S.Ct. 2498.

During the 2006 reauthorization debates, Congress expressed concern that the open-ended Ashcroft framework would lead to “substantial uncertainty” and would hamstring the Attorney General’s ability to make expeditious preclearance determinations. See H.R. Rep. No. 109-478, at 68, 2006 U.S.C.C.A.N. 618, 671. Accordingly, Congress added the language of 42 U.S.C. § 1973c(

b) and (

d) as part of the so-called “Georgia v. Ashcroft fix,” in order to return the analysis to the comparatively simpler Beer framework. But nothing in the 2006 legislative record indicates that Congress meant to make the “ability to elect” standard the only relevant criterion under

section 5’s effect test. And there is certainly nothing to suggest that Congress meant to permit covered jurisdictions to adopt retrogressive restrictions on ballot access without an examination of the effects of those changes under

section 5. The argument that the 2006 Congress exempted ballot access changes from the scope of

section 5’s effect test is all the more implausible because reading the statute in the manner that Florida suggests would not only contradict the plain language of

section 5(a), it would undermine the purpose of the Voting Rights Act. After all,

section 5 was passed primarily because certain states and other covered jurisdictions were using “tests and devices,” such as poll taxes, literacy tests, and other voting qualifications, to restrict minority voters’ access to the ballot. See Katzenbach, 383 U.S. at 310-15, 86 S.Ct. 803. Yet under Florida’s proposed

interpretation, such tests and devices would escape scrutiny under the effect prong of

section 5 precisely became they deal with ballot access measures, rather than “second-generation” discriminatory measures such as vote dilution. We do not believe— nor do we find any evidence — that this was the purpose of the Congress that extended the Voting Rights Act in 2006. In any event, even if Florida’s premise were correct and the “ability to elect” standard were now the sole criterion by which retrogressive effects may be judged, the State’s conclusion would still not follow.

It is axiomatic that in order for voters to be able to elect the candidates of their choice, they must first be able to register to vote, make it to a polling place, and cast a ballot that will count. Accordingly, election law changes that retrogressively burden such activities may well result in a diminution in minority voters’ “ability ... to elect their preferred candidates of choice.” 42 U.S.C. § 1973c(b), (d). 2. Next, Florida seeks to narrow the scope of the

section 5 inquiry by pointing to the language in

section 5 requiring covered jurisdictions to demonstrate that their voting changes will not “have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in

section 1973b(f)(2) of this title.” 42 U.S.C. § 1973c(a) (emphasis added). In Florida’s view, the “on account of’ language “requires a ‘but for’ causal connection” between race and retrogression. Fla. Br. 55. In other words, Florida contends that under

section 5, “the race, color, or language minority status of the affected persons must play a decisive role in producing the prohibited effect.” Id. Florida cites no case that has ever interpreted

section 5 in this narrow manner. Moreover, although the State proffers two slightly different constructions of its proposed “but for” test, each would render the section’s effect prong toothless. Under Florida’s first construction, “a voting change violates the ‘effect’ prong of the statute only if it both has a racially retrogressive effect and the covered jurisdiction made the voting change because it would have that racially retrogressive effect.” Fla. Br. 56 (emphasis in original).

This reading of the statute would render the effect prong entirely redundant of the purpose prong, thereby contradicting decades of controlling precedent. See, e.g., Lopez, 525 U.S. at 283, 119 S.Ct. 693 (noting that

section 5 “guard[s] against both discriminatory animus and the potentially harmful effect of neutral laws” (emphasis added)). Such redundancy would also violate a basic canon of statutory construction;

section 5, after all, has both a purpose and an effect prong, see 42 U.S.C. § 1973c(a), and each must be given independent force, see Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825, 837 & n. 11, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988) (collecting cases stating that courts should hesitate “to adopt an

interpretation of a congressional enactment which renders superfluous another portion of that same law”). Florida’s second proposed construction is that “a change will violate the effect prong if it has a retrogressive effect on minority voters and the voters’ race, color, or language minority status is the reason for the retrogression.” Fla. Br. 56 (emphasis in original). Under that reading, “[a] voting change could not fail the ‘effect’ prong merely based on an incidental correlation.” Id.

In other words, “if the retrogression is ‘because of some other factor (e.g., socioeconomic status ...),” which just happens to be correlated with race, “it is not ‘because of race, color, or language minority status and preclearance cannot be denied under the ‘effect’ prong.” Id. This argument, too, would read the effect test out of the statute.

It is difficult to imagine an example of a voting law or practice that would meet such a stringent definition of race-based causation — unless, of course, the law were something so facially discriminatory as “African-Americans may not vote.” The Voting Rights Act is plainly not limited to addressing such obvious forms of discrimination. Indeed, the purpose of the Act was to eliminate “the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of their race.” Allen, 393 U.S. at 565-66, 89 S.Ct. 817.

And the prototypical examples of voting laws that are disallowed by the Act — laws like literacy tests and poll taxes — were not based directly on race, but rather on the correlation of race with low literacy rates, poor educational opportunities, and poverty. Florida’s proposed

interpretation of the effect test would thus mean that

section 5 could not prevent the adoption of modern-day equivalents of Jim Crow-era voting laws. To state that proposition is to refute it. 3. Third, Florida contends that the effects of its voting changes must be evaluated “vis-a-vis the 1972 benchmark” — that is, the laws that were “in force or effect” in Florida’s covered counties “on November 1, 1972, the effective date of their coverage.” Fla. Br. 58. This argument need not detain us long because it is foreclosed by numerous binding precedents that identify the relevant

section 5 “baseline as the most recent practice that was both precleared and ‘in force or effect’ — or, absent any change since the jurisdiction’s coverage date, the practice that was ‘in force or effect’ on that date.” Riley v. Kennedy, 553 U.S. 406, 421, 128 S.Ct. 1970, 170 L.Ed.2d 837 (2008) (emphasis added). In other words, “[t]o determine whether there have been changes with respect to voting, we must compare the challenged practices with those in existence before they were adopted.” Presley v. Etowah Cnty. Comm’n, 502 U.S. 491, 495, 112 S.Ct. 820, 117 L.Ed.2d 51 (1992).

If the covered jurisdiction’s voting practices have been unchanged since the date on which the jurisdiction became subject to

section 5, then the practices in existence on the date of coverage serve as the benchmark. See id. (“Absent relevant intervening changes, the Act requires us to use practices in existence on [the date of coverage] as our standard of comparison.” (emphasis added)). But once the jurisdiction amends its voting laws, the laws that existed on its coverage date are no longer “directly relevant, for differences once precleared normally need not be cleared again.” Young v. Fordice, 520 U.S. 273, 281, 117 S.Ct. 1228, 137 L.Ed.2d 448 (1997). Instead, the new laws “become part of the baseline standard for purposes of determining” compliance with

section 5. Id. Florida seeks to cast the language in Riley (and other opinions) that defines the relevant benchmark as “the most recent practice that was both precleared and ‘in force or effect,’ ” 553 U.S. at 421, 128 S.Ct. 1970, as merely an unchallenged assumption. See Fla. Br. 58-59. But whether “unchallenged” or not, it has been consistently applied and has formed the basis of Supreme Court

section 5 jurisprudence for decades. As an inferior court, we are not empowered to question such decisive language. See Overby v. Nat’l Ass’n of Letter Carriers, 595 F.3d 1290, 1295 (D.C.Cir. 2010) (noting that “carefully considered language of the Supreme Court, even if technically dictum, generally must be treated as authoritative[,] ... especially [where] the Supreme Court has reiterated the same teaching” (internal citations and quotation marks omitted)). 4.

Fourth, even if we adopt the retrogression test outlined in Beer and the traditional benchmark outlined in Riley, Florida asks us to make a number of narrowing constructions for purposes of applying the retrogression test to this case. We also reject these novel arguments because they are inconsistent with the central goal of the Voting Rights Act: to provide robust and meaningful protections for minority voting rights. a. Florida’s first such argument contends that the only ballot access changes that violate the effect test are those that make it impossible for minority citizens to vote. See Fla. Br. 61.

We cannot agree, however, that the mere existence of other possible avenues for voting renders Florida’s changes to its early voting and inter-county mover procedures immune from

section 5 scrutiny. If that were the case, a state could close polling places in minority precincts and yet survive the effect test so long as voters still had the option to travel across town to more distant polls. No court has endorsed such a restrictive construction of the

section 5 effect prong. See Bossier Parish Sch. Bd. v. Reno, 7 F.Supp.2d 29, 31 (D.D.C.1998) (noting that the

section 5 effect test is “broad enough to identify ‘retrogression’ ... if (to imagine an example not present in this case) polling places were located so that they are less convenient to black voters than before the change.”), aff'd, 528 U.S. 320, 120 S.Ct. 866, 145 L.Ed.2d 845 (2000). Nor do we. Although the availability of other options may be relevant to the retrogression analysis, it is not dispositive. b.

We also decline Florida’s invitation to import a requirement that a change constitute a “severe burden” or impose “excessively burdensome requirements” on the right to vote before it can be considered retrogressive. Fla. Br. 60 (citing Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 202, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008); Burdick v. Takushi, 504 U.S. 428, 433-34, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992); Storer v. Brown, 415 U.S. 724, 728-29, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974)).

That language is drawn from election-law cases decided in the First and Fourteenth Amendment context, as part of a determination of whether a given voting law should be subject to strict scrutiny even if no suspect classification is involved. As such, it does not control here. Instead, the question for

section 5 purposes is simply whether the burdens are sufficiently material to result in retrogression with respect to minority voters’ exercise of their voting rights. c. We also reject Florida’s assertion that voting changes can have “de minimis,” and therefore permissible, effects if they only burden a small number of voters. Cf. Fla. Br. 62-66. If even a small number of voters are sufficiently burdened by a voting change that they do not exercise the franchise when they otherwise would have done so, then that change can (under some circumstances) be considered retrogressive.

Voting is a fundamental right, “preservative of other basic civil and political rights,” Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and no amount of voter disenfranchisement can be regarded as “de minimis.” d. Further, as we explain in more detail in the course of our discussion of specific voting changes, see infra

Part II.B.l, we disagree with Florida’s position that a change is not retrogressive if it affects “in the aggregate significantly more [w]hites than minorities.” Fla. Br. 53 (emphasis added). Focusing on the effects of voting changes in absolute terms would mean that almost no ballot access change would be considered retrogressive; after all, the fact that fewer members of a particular group are present in the overall electorate is part of what it means to be a minority group.

Applying the effect test in the manner Florida suggests would thus allow covered jurisdictions to enact changes with clearly adverse effects on minority voters so long as more white voters were also affected. That approach would fly in the face of the Voting Rights Act’s primary goal of protecting minority voting populations. The retrogression assessment must therefore be conducted in relative terms, with reference to the proportions of each group affected by the change. e. Finally, we reject Florida’s contention that the effect prong of the statute must be read in accordance with the State’s proposed

interpretations because there are “constitutional concerns” with any contrary reading. See, e.g., Fla. Br. 57. We do not discern constitutional difficulties with the

interpretation we have set forth above. Contrary to Florida’s contention, “[t]he net effect” of this construction of the

section 5 effect test is not “to require states and political subdivisions to take account of race in every decision they make in order to ensure that any change would have an ameliorative impact on minority groups.” Id. at 57-58. Nothing in the effect test as we have construed it for application to ballot access cases requires covered jurisdictions to maximize voting opportunities for their minority citizens alone. See id. Rather, under

section 5, covered jurisdictions must simply ensure that their ballot access changes do not have retrogressive effects on minority voting rights — that is, that they do not “worsen the position of minority voters” in comparison to the pre-existing voting standards, practices, or procedures. Bossier Parish II, 528 U.S. at 324, 120 S.Ct. 866; see City of Lockhart, 460 U.S. at 134 & n. 10, 103 S.Ct. 998. Nor does this

interpretation mean, as Florida suggests, see Fla. Br. 58 n.12, that voting changes that benefit white voters automatically result in retrogression for minority voters. Indeed, the United States and the intervenors explicitly disclaim that position. DOJ Br. 68 n.17. Rather, the question is whether these voting changes will have adverse effects on minority voters’ “effective exercise of the electoral franchise” in Florida’s covered counties. Beer, 425 U.S. at 141, 96 S.Ct. 1357. We now proceed to apply the

section 5 effect test to the two voting changes at issue in this opinion, beginning with 'the new procedures for early in-person voting. In examining each of the changes, we are guided by the two central inquiries that we have outlined above:

(1) Are the individuals who will be affected by the change disproportionately likely to be members of a protected minority group? And

(2) Does the change impose a burden material enough that it will likely cause some reasonable minority voters not to exercise the franchise? B. Early Voting Changes. As explained above, see supra

Part I.C.l, the relevant changes to Florida’s early voting procedures involve the number of days, the number of hours, the specific hours, and the weekend times that early voting may be offered in future elections. Under the benchmark law, the potential early voting period lasted a total of 14 days, beginning “on the 15th day before an election and endfing] on the 2nd day before an election.” Fla. Stat. § 101.657(d) (2010). Under that prior law, exactly 8 hours of early voting were mandated on each weekday, and exactly 8 hours in the aggregate each weekend, yielding a total of 96 early voting hours. Id.

Early voting sites were required to “open no sooner than 7 a.m. and close no later than 7 p.m. on each applicable day.” Id. Within this important constraint, local supervisors were free to select the specific voting hours for each voting day as they saw fit. See id. Historically, local supervisors of elections in the five covered counties have chosen a range of voting hours depending on the type of election and the location of the early voting site.

With one exception, all of the permutations used by the covered counties captured at least a part of the early morning or evening hours thought to be most convenient for those early voters working the standard 9 a.m. to 5 p.m. workday. Finally, although the prior law permitted local supervisors of elections to choose whether their 8 aggregate weekend early voting hours would fall on a Saturday, a Sunday, or both, supervisors in each of Florida’s five covered counties decided to offer early voting only on Saturdays.

This meant that early voting was actually offered in each of the covered counties for a total of only 12 days under the benchmark statute. In short, the benchmark practice against which we must compare the early voting changes was 96 hours over 12 days, none of which was a Sunday. See Riley, 553 U.S. at 421, 128 S.Ct. 1970 (holding that the benchmark is the last precleared law actually in practice in the covered jurisdiction). Each day included 8 hours of early voting, although the specific hours varied. See supra note 17.

Because we have not been presented with a specific voting plan from any of the five covered counties, there is much that we do not know about how the new law will be implemented in the five covered counties. We do know, however, that Florida’s new law reduces the total number of days available for early voting. The new early voting period begins “on the 10th day before a [state or federal] election ... and end[s] on the 3rd day before the election.” Fla. Stat. § 101.657(d) (2011).

Thus, under the new statute, early voting lasts from the Saturday two weekends before the election through the next Saturday (three days before Election Day) — for a total of only eight days. That is four fewer days than under the benchmark law. Moreover, under the new law, election supervisors in each county now have the discretion to determine the number of daily hours of early voting in their counties, subject to a statutory requirement that “no less than 6 hours and no more than 12 hours” be offered on each of the 8 early voting days. Id.

The end result is that, although Florida’s counties may choose the maximum and still offer 96 total hours of early voting (12 hours per day over 8 days), they may also choose the minimum and offer only 48 total hours (6 hours per day over 8 days) — or anything in between. An early voting period lasting only 48 hours would reflect exactly half of the hours that were required under the benchmark practice.

The new law also grants election supervisors the discretion to select the specific hours of early voting for each voting day, unencumbered by the prior law’s constraint that early voting sites could not open before 7 a.m. or close after 7 p.m. Compare Fla. Stat. § 101.657(d) (2011) (providing that “the supervisor has the discretion to determine the hours of operation of early voting sites”), with Fla. Stat. § 101.657(d) (2010) (“Early voting sites shall open no sooner than 7 a.m. and close no later than 7 p.m. on each applicable day.”).

If supervisors of elections decide to offer the maximum of 12 hours each day on a 7 a.m. to 7 p.m. schedule, then the daily voting hours would include both morning and evening hours that fall outside the standard 9 a.m. to 5 p.m. workday. If they offered 12 hours but a different schedule, that would not necessarily be so. And if they instead offered only the minimum of 6 hours, there would be many schedules that would not include nonworking hours. Finally, the new statute mandates some additional weekend voting that was not offered under the benchmark practice.

In particular, the law requires early voting for at least 6 hours on the Sunday nine days before Election Day, whereas, as we have already explained, there was no Sunday early voting at all under the benchmark practice in the covered counties. And although the new law removes the theoretical possibility under the benchmark statute of early voting on the Sunday immediately before Election Day, compare Fla. Stat. § 101.657(d) (2011), with Fla. Stat. § 101.657(d) (2010), that does not affect our analysis because none of the covered counties offered any Sunday voting at all.

See Riley, 553 U.S. at 421, 128 S.Ct. 1970 (holding that the relevant benchmark is the “most recent practice that was both precleared and in force or effect” (emphasis added) (internal citation and quotation marks omitted)); City of Lockhart, 460 U.S. at 132, 103 S.Ct. 998 (“The proper comparison is between the new system and the system actually in effect.”). In sum: With respect to days, the new law results in 4 fewer early voting days than the benchmark (8 days rather than 12). One of those days is now a Sunday, whereas there was no Sunday voting under the benchmark practice.

With respect to hours, the new law may result in a total of as few as 48 hours of early voting — one half of the 96 required under the benchmark — because it permits counties to offer as few as 6 hours per day (over the 8 days). But the new law also permits counties to offer as many as 12 hours of voting per day, which, if adopted by the counties, would result in a maximum of 96 hours of early voting — the same number of hours as under the benchmark. With respect to the specific hours of voting, the new law leaves the supervisors unconstrained.

Hence, it may result in fewer of the early morning and evening hours that are convenient for voters working the standard 9 a.m. to 5 p.m. workday. Or, it may result in more such hours. The interrelationship between the days and hours of early voting under the old and new law introduces uncertainty into our evaluation of the effects of these early voting changes. For the reasons discussed below, we conclude that at least one permutation of the early voting changes would result in retrogression.

In particular, we conclude that Florida has failed to meet its burden of showing that retrogression would not occur if the covered counties not only reduced the number of early voting days from 12 to 8 as required by the new law, but also reduced their total early voting hours from 96 to 48 (regardless of the specific hours chosen). As also discussed below, however, we conclude that if the counties were instead to utilize the maximum 96 hours permitted under the new law, and offer them on a standard 7 a.m. to 7 p.m.

schedule that would provide the opportunity for voters to vote before and after the workday, Florida would likely be able to meet its burden of demonstrating that the overall effect of the changes would not be retrogressive. But neither Florida nor the counties have submitted the counties’ intended hours for preclearance, nor do we have any real indication of what the counties will do. Accordingly, because retrogression may well follow from the new statute, we cannot grant preclearance at this time. Our analysis follows. 1.

As an initial matter, we find that minority voters will be disproportionately affected by the changes in early voting procedures because they disproportionately use early in-person voting. As the intervenors’ expert witness, Professor Paul Gronke, determined, the proportion of African-American usage of early in-person voting in Florida “has exceeded White usage of early in-person voting in four of five [recent] federal elections,” and “substantially exceeded White usage in both the 2004 and 2008 presidential elections.” A10092,10104 (Am. Expert Report of Prof. Paul Gronke).

The data is particularly striking for the 2008 general election, when more than half (54%) of African-American voters in Florida east ballots using early in-person voting — twice the rate of white voters. A10106 (Am. Expert Report of Prof. Gronke, Ex. Seven); see A7818 (Expert Report of Dr. Stewart, Attach. J). And although rates of early voting declined across the board in 2010, the African-American usage rate still exceeded the white rate by a factor of about one-third in the 2010 general election. See A 10106 (Am. Expert Report of Prof. Gronke, Ex. Seven).

These disproportionate usage rates hold true in Florida’s five covered counties as well. In 2008, for example, 52% of all African-American voters in the covered counties east an early in-person ballot, compared to only 28% of white voters. Id. at A10095-96, 10105; see also A7821 (Expert Report of Dr. Stewart, Attach. M). African-American rates of early in-person voting in the five covered counties also “remained statistically significantly higher [than white rates] in the 2010 primary and general elections.” A10096 (Am. Expert Report of Prof. Gronke).

Even Florida’s own expert witness, Professor M.V. (Trey) Hood III, acknowledged that he “can see the pattern” of higher levels of African-American usage of early in-person voting in the covered counties after the 2008 primary election. A5855 (Hood Dep.); see also A9041-42 (Expert Report of Prof. Hood) (showing that the African-American rates of early voting in the covered counties exceeded the rates of white voters to a significant degree in the 2008 general election, the 2010 primary, and the 2010 general election (and, to a lesser extent, in the 2008 primary)).

Furthermore, all available evidence suggests that these trends “will continue into the 2012 general [election] and likely in[to] the future.” See A9918 (De Bene Esse Dep. of Prof. Gronke). According to Professor Gronke: The fact that the rates of African American early in-person voting in the covered counties were almost double the White rate in the 2008 general election and remained statistically significantly higher in the 2010 primary and general elections is strong evidence that African Americans will continue to have a higher rate of usage for early in-person voting when compared to White voters. A10096 (Am.

Expert Report of Prof. Gronke); see A10079 (De Bene Esse Dep. of Prof. Gronke) (“I think that history will show that 2008 ha[d] a particularly high rate [of African-American early voting], but that that adoption rate by African-Americans had a lasting impact, and that the higher rate of usage will continue.”); id. at A10034-36. Florida’s expert likewise agreed that it is “more likely than not” that in the 2012 general election, the African-American usage rate of early in-person voting will be higher than the white usage rate. A5875-76 (Hood Dep.).

Moreover, although the differences are not as stark as for the entire early voting period, the evidence also shows that African-American voters disproportionately used the first five days of the benchmark early voting period — i.e., the Monday through Friday of the week that falls two weeks before Election Day — all of which will now be eliminated under HB 1355.

In the 2008 general presidential election, for example, approximately 17.25% of African-American voters in the covered counties cast an early in-person ballot during the first five days of early voting (the so-called “repealed days” of early voting), compared to only 9.3% of white voters. A10097 (Am. Expert Report of Prof. Gronke); see A7821 (Expert Report of Dr. Stewart, Attach. M). In other words, African-American voters used the repealed days of early voting at rates nearly double those of white voters in 2008.

The difference between these percentages “far exceeds the ... statistical significance criterion.” A 10097 (Am. Expert Report of Prof. Gronke). And while the data with respect to use of the repealed days in the 2010 elections is more inconclusive, for reasons discussed below we find the 2008 presidential election to be the best indicator of future trends. In finding that African-American voters in the covered counties will be disproportionately affected by the reduction in early voting days under the new law, we reject the contrary opinions of Florida’s expert witness, Professor Hood.

We do so because the analysis underlying his conclusions suffers from a number of methodological flaws. First, Professor Hood asserts that the effects of the early voting changes will be “disproportionately borne by [white] voters” because they “comprise the greatest share of total number of early votes cast” in the covered counties. A9061 (Expert Report of Prof. Hood).

But as the intervenors’ expert, Professor Gronke, convincingly explains, this “analytic method violates a basic tenet of comparative analysis” because it fails to “control for ... the size of the underlying subgroups.” A9089 (Rebuttal Decl. of Prof. Gronke). After all, it is “no surprise that [white] voters are ... the majority of users of early in-person voting” because they also represent “the vast majority of all Florida voters,” id. (emphasis added), including those in the covered counties, see A7683-84 (Expert Report and Deck of Russell Weaver) (collecting census data in the covered counties).

That is why, as Professor Gronke explains, adjusting for population demographics is critical in assessing the potential retrogressive effects of a given voting change: [I]f you simply look at the absolute number of impacted voters, inevitably it’s going to look like whites are most impacted simply because they constitute more of the voters.... It’s simply misleading if you’re going to be looking at the impact on race to look at absolute numbers because all you’re going to do when you look at absolute numbers is ... examin[e] whether one group is larger or smaller....

You’re not considering the impact of race on the rates of usage. A9888-90 (De Bene Esse Dep. of Prof. Gronke); see A9089 n.l (Rebuttal Deck of Prof. Gronke) (explaining how Prof. Hood’s flawed analysis could lead to endorsing a poll tax that has an obviously disparate effect on minority voters). As even Professor Hood conceded, the accepted practice in the social sciences is to look at the rate of impact on different groups, not simply absolute numbers. A5926-28 (Hood Dep.). Yet his calculations do not follow that accepted method of statistical analysis. See id. at 584(M2.

Moreover, as we suggested above, adopting Professor Hood’s approach would permit covered jurisdictions to enact changes with clearly adverse effects on minority voters as long as more white voters were also affected. See supra

Part II.A.4.d. Since having fewer voters is part of what it means to be a “minority,” that would render

section 5 ineffectual in virtually all ballot access cases — an approach that cannot be squared with Congress’ intent to use the

section to protect minority voting populations. Accordingly, as we concluded above, the retrogression assessment must be conducted in relative terms, with reference to the proportions of each group affected by the change. Second, we reject other calculations in Professor Hood’s expert report because we agree with the intervenors’ expert that “[i]n several instances Professor Hood inappropriately pools together groups of dissimilar data, which is not methodologically appropriate.” A9092 (Rebuttal Deck of Prof. Gronke).

For example, Professor Hood “attempts to draw conclusions based on data ‘pooled’ from different kinds of elections, without offering a reason to believe that early voting patterns are in fact common across the different types of elections.” Id. And “[tjhere is no evidence that Professor Hood conducted a pooling test, a statistical tool that helps determine whether it is valid to aggregate data” from those different types of elections. Id.; see A5762-64 (Hood Dep.) (conceding that he pooled the data without running any of the standard statistical tests to determine whether such pooling was appropriate).

This problem is exacerbated, for reasons discussed in more detail below, by the fact that Professor Hood often “aggregates] data from all elections analyzed in his Report except for the 2008 general election,” thereby further distorting the data. A9092 (Rebuttal Decl. of Prof. Gronke). Professor Hood also frequently lumps African-Americans and Hispanics into a single category of “Minorities,” which misleadingly flattens the data because, unlike African-Americans, Hispanic voters use early voting at about the same rate as whites. See A7818 (Expert Report of Dr. Stewart, Attach. J); A10105 (Am.

Expert Report of Prof. Gronke, Ex. Six). This “masks significant differences between White and African-American rates of early in-person voting.” A9092 (Rebuttal Decl. of Prof. Gronke). As Professor Gronke notes, “[i]t is inconsistent with political science research standards to pool together these two racial groups when they demonstrate different behaviors in voting.” Id. at A9093. Moreover, it is at odds with the relevant inquiry under

section 5 because the

section forbids a covered jurisdiction from diminishing voting rights “on account of race or color, or” membership in a language minority group. 42 U.S.C. § 1973e(a) (emphasis added). Finally, we reject Professor Hood’s contention that the 2008 general election was an “outlier” that should be ignored.

More specifically, Professor Hood asserts that the “anomalous” circumstances surrounding the 2008 election — namely, “the historic candidacy of Barack Obama, the first African-American presidential candidate representing one of the two major political parties in the United States,” coupled with the “intensity of interest in President Obama’s candidacy” among African-American voters — account for the “spike in early in-person voting turnout among African-Americans” in 2008. A9042 (Expert Report of Prof. Hood).

According to Professor Hood, if “the 2008 general election is removed from the analysis, the numbers more accurately reflect the historic trends.” Id. at A9043. And once the 2008 general election is discarded, the rates of white and minority usage of early in-person voting then appear — at least to Professor Hood’s eye — “roughly comparable,” meaning (in his view) that the early voting changes should not have disproportionate effects on African-American voters. Id. at A9041-42; see also id. at A9061 (describing the early voting turnout rates by race as “very similar”); Fla.

Br. 65 (“Putting aside an anomalous 2008 general election, ... [w]hite voters are slightly more likely to use early voting than their minority counterparts.” (emphasis added)). We find this reasoning unpersuasive for several reasons. First, and most important, we can hardly discard an election as an “outlier” or an “anomaly” simply because an African-American ran for President for the first time as a major-party candidate and many African-Americans voted for him.

The Voting Rights Act was designed to ensure that, among other things, minorities can “elect their preferred candidates of choice.” 42 U.S.C. § 1973e(d). Thus, we cannot ignore elections in which minority candidates make breakthroughs in winning elected office on the assumption that future elections will revert to the status quo. In addition, although the 2008 election was of course unique in certain respects, the record does not support the assertion that that election was an “outlier” that can be discarded out of hand.

Rather, the record evidence suggests that the 2008 election is highly predictive of what is likely to happen in 2012. The expert witnesses in this case are all generally in agreement that, when assessing future usage rates of early voting, comparisons are best made between “like” elections, and that the most recent analogous election is the best predictor of what will happen in the future. Accordingly, the 2008 general presidential election represents the best guidepost for projecting how early in-person voting will be used in the upcoming 2012 general presidential election.

See, e.g., A5657-58 (Stewart Dep.); A9091 (Rebuttal Decl. of Prof. Gronke); A10098 (Am. Expert Report of Prof. Gronke); see also A5867-68 (Hood Dep.) (conceding that “the 2008 presidential election would be our best gauge” of “what’s going to occur in the 2012 general election”). For this reason alone, “it is not by any means an ‘outlier’ in terms of predictive value.” A9091 (Rebuttal Decl. of Prof. Gronke).

And that is particularly true because many of the factors that supposedly rendered the 2008 election “anomalous” will again be factors in 2012: [B]ecause President Obama will be on the ballot in 2012, that election will present another ‘historic’ moment in that the first African American president will be seeking to win a second term. Thus, many of the factors at play in 2008 — e.g., increased get-out-the vote efforts, and the intensity of interest in the African American community — will come into play again in 2012. Id.

Moreover, even setting aside the specifics of the 2008 and 2012 general elections, the record indicates that the 2008 general election was not a mere one-off phenomenon. The trend of increased African-American usage of early in-person voting predated 2008 to some degree: African-American early voting rates in Florida exceeded white early voting rates in 2004, as well. See A10092, 10104 (Am. Expert Report of Prof. Gronke). And after the 2008 election, the rates of African-American usage of early in-person voting in Florida have continued to exceed those of white voters to a statistically significant degree.

See, e.g., A9090 (Rebuttal Decl. of Prof. Gronke). Hence, it is not true, in the words of Florida’s expert, that once the 2008 election is removed from the picture the rates of white and African-American early voting are “roughly comparable.” A9041 (Expert Report of Prof. Hood). And in any event, “[t]he term ‘roughly comparable’ is not an accepted term of art or standard for statistical comparisons in the field of political science research.” A9090 (Rebuttal Decl. of Prof. Gronke).

Rather, “[t]he methodologically appropriate starting point is to determine whether the differences are statistically significant.” Id. And, even discounting the 2008 election, the data shows a clear and statistically significant “trend of higher usage [of early voting] over time by African American voters in the Covered Counties and statewide.” Id. In short, rather than being an “outlier,” the evidence suggests that the 2008 general election is best seen as a “game-changer” that simply magnified already nascent trends in African-American preferences for early in-person voting.

See A10069 (De Bene Esse Dep. of Prof. Gronke). Indeed, Florida’s own expert witness acknowledges that the 2008 election was not an outlier when compared to the relative rates of African-American versus white early in-person voting in the four most recent federal elections in Florida. A5965-66 (Hood Dep.). As such, there is no sound basis for disregarding the 2008 election in our evaluation of the effects of the new statute’s changes in early voting procedures. 2.

Having determined that African-American voters in Florida’s covered counties are disproportionately likely to use the early voting days that would be eliminated under the new law, we proceed to evaluate whether Florida’s early voting changes will impose a materially increased burden on African-American voters’ effective exercise of the electoral franchise relative to the benchmark practice.

As we have already suggested, this evaluation is complicated by the fact that the new law makes certain potential trade-offs between the days and hours of early voting: it decreases the available days, but allows local election officials to maintain the same total early voting hours and to enhance the accessibility of those hours, if they so choose. And it requires a voting day on a Sunday.

That said, we do not yet know how the covered counties will decide to exercise their discretion with respect to the early voting hours offered in their jurisdictions: under the new law, election officials could choose to offer as many as 96 or as few as 48 hours of early voting, meaning that the total hours might remain the same as under the benchmark practice, or might be cut in half (or might end up somewhere in between). Florida urges us to assume that “the Covered Counties may seek to provide the maximum early voting hours available under the Act (96 hours).” Fla. Br. 25.

But because Florida bears the burden of proving that its new law will be nonretrogressive, the State must show — not simply assume — that given a menu of possible hours, its covered counties will choose non-retrogressive ones. Florida has submitted no evidence, however, that would permit us to predict with any confidence the number of early voting hours the covered counties will offer. No covered county’s election supervisor has submitted a county plan for preclearance. Most of the supervisors’ responses to questioning by the defendants on this subject may at best be described as equivocal.

And at least one covered-county supervisor indicated that she would not use the full 96 hours of early voting, un

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