DocketNumber： 05-3044
Citation Numbers： 444 F.3d 843, 2006 U.S. App. LEXIS 10027
Judges： Cole, Gilman, Martin
Filed Date： 4/21/2006
Status： Precedential
Modified Date： 11/5/2024
MARTIN, J., delivered the opinion of the court, in which COLE, J., joined.
GILMAN, J. (pp. 880-97), delivered a separate dissenting opinion.
OPINION
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.
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.
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%.
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-
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 state
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
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
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.”
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*853 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.5
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.
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.
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
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.
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 con
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
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
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*859 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),
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.
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
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.
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
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*864 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 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
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
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).
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
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,
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; more
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 new, more trustworthy technology.”); id. (“These goals demand immediate attention, or our state runs the risk of repeating the problems of our nation’s most recent presidential election — and suffering irreparabie damage to the most important and basic concepts of democracy.”); id. (“The evidence is overwhelming that thousands of Ohio voters have been disenfranchised by antiquated voting equipment....”). The use of the punch card and central-count optical scan technologies result in a greater likelihood that one’s vote will not be counted on the same terms as the vote of someone in a notice county.
Although we apply strict scrutiny, we note that the use of this technology would also fail under rational basis review.
Under FCC v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993), legislation “must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis” for the challenged action. This does not mean, however, that state action survives if the State’s proffered justifications are belied by the actual facts of the case or are simply arbitrary justifications. Such is the case here; no facts provide a rational basis for Ohio’s continued certification of the deficient technologies. Governments almost always attempt to justify their conduct based on cost and administrative convenience, but the State’s reliance on these factors is not necessarily rational, and certainly is not in this case. 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 loss of so many votes because of the continued use of machines that the State admits are substandard is arbitrary and cannot be considered rational in light of so-claimed, but unsup
Now, a few words in response to the dissent. To start, the dissent misunderstands the nature of the plaintiffs’ claim. According to the dissent, no equal protection problem arises because “properly marked ballots are counted and accorded the same value everywhere in the state.” Dis. Op. at 34. The dissent attributes any mistakes to the voters themselves and concludes that the only problem is that “voters in some counties have a reduced chance of turning in a properly marked ballot that will actually be counted because certain voting methods do not catch the voters’ own inadvertent mistakes.” Id. This fundamentally mischaracterizes the problem with the substandard voting technology. The evidence cited above demonstrates that the problem with the punch card ballot in its design is that a vast number of properly marked ballots are not counted due to machine error. Thus, the issue is not as the dissent states, but rather, whether a state “may allow the use of different types of voting equipment with substantially different levels of accuracy.” See Black v. McGuffage, 209 F.Supp.2d 889, 898 (N.D.Ill.2002) (emphasis added).
Next, the main basis for the dissent is some “question [over] the precedential value of Bush v. Gore.” Dis. Op. at 881. The dissent answers the question by concluding that Bush v. Gore is “a case whose precedential value ... is at best questionable.” Dis. Op. at 886.
Finally, we reject the dissent’s claim that Professor Hasen’s article has overruled the Supreme Court’s decision in Bush v. Gore because “the Supreme Court has had ample opportunity to prove him wrong by explaining, or even citing to, its decision in Bush v. Gore.” Dis. Op. at 887. If the dissent were correct, perhaps the same must be said about the hundreds of other law review articles discussing the decision’s legitimacy and applicability to other factual scenarios. The Court has not sought to debate these other law professors and commentators and under the dissent’s reasoning, those articles must also be correct. In fact, taken to its logical extreme, the dissent’s reasoning means that every claim in a law review article that the Supreme Court has failed to refute is actually the law of the land. Thus, we find the dissent’s claim that Bush v. Gore has no precedential value because the Court has not sought to “prove [Professor Hasen] wrong” empty.
Moreover, the dissent bases its analysis entirely upon Professor Hasen’s suggestion that Bush v. Gore is not serious, but fails to acknowledge the second half of Hasen’s article where he concludes that:
In the end, the dissent’s reasoning ultimately flounders. The dissent concludes that our decision is “persuasive only to the extent that Bush v. Gore is controlling. Neither [our decision or Shelley I], in my view, successfully refutes the compelling reasons supplied by Professor Hasen for refusing to ‘take Bush v. Gore’s equal protection holding seriously.’ ” Dis. Op. at 891 (citing Hasen, 29 Fla. St. U.L.Rev. at 380). The dissent, however, fails to mention Professor Hasen’s ultimate conclusion that “if Bush v. Gore indeed has precedential value, it clearly should apply to prevent the use of these different voting systems in the same election.” Hasen, Bush v. Gore, 29 Fla. St. U.L.Rev. at 395. Without the luxury or the power to decide
Finally, the dissent criticizes us for not articulating a precise mathematical formula for determining when voting technology is constitutional and when it is not. Precise mathematical formulas, however, have never been a part of voting rights cases or cases involving strict judicial scrutiny. A judicially imposed mathematical formula for evaluating voting rights cases would be purely arbitrary. We simply cannot say that x% error rate raises constitutional concerns but y% error rate does not. Nor has the Supreme Court done so or required us to do so in any case applying strict scrutiny.
We do not review such claims in a vacuum but do so with a focus on the real world justifications and implications of Ohio’s decision. Future claims of this sort will be evaluated with these various factors in mind. If, in the dissent’s hypothetical example, where one technology yields a 0.1% error rate and another technology has a 0.01% error rate, and a lawsuit is filed similar to this one, the same questions will have to be asked and the context of the challenge studied and evaluated. If switching to the new technology would bankrupt the State, or the technology was in its development phase, or the potential for fraud was high, or for any number of reasons the State did not believe that the technology could properly be implemented, then, even in light of our decision today, the claim may fail. If, however, switching to the new technology provided only minimal inconvenience, then the State’s reasons might be found to be less than compelling. In this case, we do not seek to constitutionalize local election procedures, nor do we seek to mandate uniformity and absolute equality in voting procedures, nor do we hold that notice technology is constitutionally mandated; we merely evaluate the right to vote in light of the State’s proffered justifications for using the two challenged technologies at issue and hold that the State’s reasons are not compelling. Our inquiry here is aided by Ohio’s decision to adopt a litigation position that is undermined by its actions and public words. We therefore hold that the two technologies challenged here fail to satisfy “rudimentary requirements of equal treatment and fundamental fairness,” Bush, 531 U.S. at 109, 121 S.Ct. 525, and that based
V.
The Plaintiff’s Voting Rights Act Claim
The African-American plaintiffs also advance a claim under Section 2 of the Voting Rights Act against Hamilton, Montgomery, and Summit Counties based on their use of punch card technology. After the bench trial, the district court concluded that the plaintiffs’ “Voting Rights Act claim fails because their alleged injury does not amount to a vote denial under § 2 of the Voting Rights Act.” This conclusion was based on the court’s legal interpretation of the Voting Rights Act that a vote denial claim is cognizable only “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.” Finding that “none of the plaintiffs ... claim that they have been denied access to the polls,” the court held that “these facts do not allow this Court to conclude that an ‘actual’ denial of the right to vote on account of race occurs.” Further, the district court concluded that the contention that “punch card ballots subject [the African-American plaintiffs] to a greater probability that their votes will not be counted than whites,” is insufficient to constitute a denial of the right to vote. Thus, the district court held “that the plaintiffs have not established their vote denial claim.”
The Supreme Court has said that in interpreting this Act, we should read it in a “a manner that provides the ‘broadest possible scope’ in combating racial discrimination.” Chisom, 501 U.S. at 403, 111 S.Ct. 2354 (internal quotation omitted). Moreover, under the 1982 amendments to section 2 of the Act, we are concerned with the results of a practice, not the government’s intent. Chisom, 501 U.S. at 394, 111 S.Ct. 2354; 42 U.S.C. § 1973(a).
Section 2(a) of the Act prohibits the use of any electoral practice or 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.” We have noted that
Section 2, unlike other federal legislation that prohibits racial discrimination, does not require proof of discriminatory intent. Instead, a plaintiff need show only that the challenged action or requirement has a discriminatory effect on members of a protected group: A violation of subsection (a) of this section is established if, based on the totality of the 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.
Moore v. Detroit School Reform Bd., 293 F.3d 352, 363 (6th Cir.2002). The right to vote is defined in 42 U.S.C. § 1973l (c)(1)
Finding that the plaintiffs’ evidence supports a denial of the right to vote, the next inquiry is under section 2(b) of the Act to determine whether the evidence establishes a violation of the Act. See Chisom, 501 U.S. at 394, 111 S.Ct. 2354 (“Congress not only incorporated the results test in the paragraph that formerly constituted the entire § 2, but also designated that paragraph as subsection (a) and added a new subsection (b) to make clear that an application of the results test requires an inquiry into ‘the totality of the circumstances.’ ”). Section 2(b) states that an electoral practice or procedure violates 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). Consistent with the results test, this Court has noted that unlike race based claims under the Equal Protection Clause of Fifteenth Amendment, where evidence of discriminatory intent is necessary, “Section 2 of the Voting Rights Act requires only a showing of discriminatory effect.” Mixon, 193 F.3d at 407 (citing Thornburg, 478 U.S. at 70-74, 106 S.Ct. 2752). Moreover, claims under the Voting Rights Act require “an intensely local appraisal of the design and impact” of the challenged electoral practice. Thornburg, 478 U.S. at 78, 106 S.Ct. 2752 (internal quotation omitted).
The plaintiffs here alleged that punch cards in these three counties have a discriminatory effect and presented evidence to support their claim. Akin to Southwest Voter, the plaintiffs presented evidence demonstrating that “minority voters disproportionately reside in punch-card counties and that, even within those counties, punch-card machines discard minority votes at a higher rate.” 344 F.3d at 918. According to the Ninth Circuit en banc court, “[t]o establish a Section 2 violation, plaintiffs need only demonstrate ‘a causal connection between the challenged voting practice and [a] prohibited discriminatory result.’ ” Id. (quoting Smith v. Salt River Project Agric. Improvement & Power Dist., 109 F.3d 586, 597 (9th Cir.1997)).
On this part of the analysis, the district court made very few findings based on its determination under section 2(a). These finding included the finding that there are many residual votes in Appalachian counties with virtually non-existent minority populations, and that under-voting in Franklin County (which was not sued under the Act) is higher than in Hamilton County (which was sued under the Act). Essentially, the court found that because white voters in other counties with minimal minority populations suffer from a similar likelihood that their votes will not be counted, the plaintiffs here have not made a sufficient claim under the Act. The district court did not make any findings under section 2(b) of the Act and did not
Because the plaintiffs properly stated a claim under the Act, the question then for the district court, under Section 2(b), is whether under the totality of circumstances, the evidence demonstrates a discriminatory result. On remand, the district court will consider the voluminous amount of the plaintiffs’ evidence, including the regression analysis showing the correlation between overvoting and the percentage of African-American voters in a given precinct. In Hamilton County the regression coefficient was .517, in Summit County it was .682, and in Montgomery County it was .440. The plaintiffs’ expert described these correlations as “strong.” The plaintiffs claim that the evidence put forth demonstrates 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, African-Americans had a residual voting rate 2.5 times that of non African-Americans. The defendants did not present contradictory evidence and did not dispute that racial disparities exist, but instead asserted that education and socioeconomic conditions, not race, account for the disparities. We note, however, that “[t]he essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.” Thornburg, 478 U.S. at 47, 106 S.Ct. 2752. With these considerations in mind, we vacate the district court’s ruling in favor of the defendants on the Voting Rights Act claim and remand for further proceedings consistent with this opinion.
VI.
We also reverse the district court’s judgment denying class and subclass certification. The district court’s nine-line order states that the plaintiffs reside in only four of the eighty-eight Ohio counties and therefore they “are not proper representatives for voters in other counties.” The court also concluded that although the Secretary of State is the chief elections officer, each county has its own board of elections with substantial powers.
The plaintiffs sought to certify two classes. The first plaintiff class would consist of: “All persons who vote, or who are registered to vote in jurisdictions within the State of Ohio which do not employ ballot marking or other voting machinery with in-precinct error notification technology.” The second class, for purposes of the Voting Rights Act claim consists of: “All African-American persons who vote, or who are registered to vote in jurisdictions within the State of Ohio which do not employ ballot marking or other voting machinery with in-precinct error notification
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
Fed.R.CivJP. 23(a).
The district court found that “the plaintiffs are not proper representatives for voters in other counties.” We disagree. The plaintiffs clearly satisfy the requirements of Rule 23(a) and have satisfied their burden of so proving. See Senter v. Gen. Motors Corp., 532 F.2d 511, 522 (6th Cir.1976). The class is so numerous that joinder is impracticable, there are questions of law and fact common to the class, the claims of the representative parties are typical of the claims of the class, and the representatives will fairly and adequately protect the interests of the class. Further, we find that the plaintiffs have satisfied their burden under the second step of the analysis in Rule 23(b). Under section (b)(2), “the party opposing the class [Secretary of State] has acted or refused to act [by decertifying deficient technology] on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Thus, we reverse the district court’s order and conclude that class certification is appropriate for the plaintiffs pursuing statewide relief under the Equal Protection Clause and sub-class certification is appropriate for the African-American plaintiffs within Hamilton, Summit, and Montgomery Counties.
VII.
Violations of the Equal Protection Clause are no less deserving of protection because they are accomplished with a modern machine than with outdated prejudices. The dissent’s appeal to caution notwithstanding, “the basic ingredient of [judicial] decision is principle, and it should not be compromised and parceled out a little in one case, a little more in another, until eventually someone receives the full benefit. If the principle is sound and constitutional, it is the birthright of every American, not to be accorded begrudgingly or piecemeal or to special groups only, but to everyone in its entirety whenever it is brought into play.” EARL WARREN, THE MEMOIRS OF CHIEF JUSTICE EARL WARREN 6 (Madison Books 2001) (1977). The district court’s decision with regard to the plaintiffs’ equal protection claim is REVERSED. The case is REMANDED with instructions to enter judgment in favor of the plaintiffs. With regard to the plaintiffs’ Voting Rights Act claim, the district court’s decision is VACATED, and REMANDED for proceedings consistent with this opinion.
. The Ohio Secretary of State has already embarked on a campaign to replace both punch card and central count optical scan machines, but as of the November 2005 elections, has not entirely done so. Moreover, the Help America Vote Act of 2002 requires states who choose to receive federal funds under the Act to discontinue use of punch card systems by 2006.
. The 2000 presidential election in Ohio was decided by a margin of 3.51%.
. Regression coefficients measure the strength of association between two variables. They range from -1.0 (a perfectly inverse relationship), through 0 (no relationship), to + 1.0 (a perfect relationship). HUBERT M. BLALOCK, JR., SOCIAL STATISTICS 396-97 (2d ed.1979).
. The court also later found that "[t]o label the punch card voting technology a non-notice system is to ignore the reality that the careful voter has every opportunity to scrutinize his or her ballot after removal from the voting tray to determine if a mistake has been made in the context of an undervote or an overvote or a mistaken vote and to request a new ballot in the event of a recognized mistake.”
. The district court’s generalized state-wide residual vote average did not take into account the extent of the plaintiffs' statistics. For example, the rate in Sandusky County, which used central-count optical scan equipment was 2.64%. Some examples of the residual vote rate for counties using punch cards were 3.19% for Summit County and 2.78% for Montgomery County. Within these counties, specific precincts had higher residual rates: 15% for Akron City Precinct 3-F and 17% for Dayton City 14th Ward Precinct C.
. The district court did not address the plaintiffs’ statistical evidence in the challenged counties. According to the plaintiffs’ complaint, in the 57 precincts in Summit County where African-American voters comprise the majority, the average residual vote rate was 6.7%. In the 567 precincts where white voters comprise the majority in Summit County, the average residual vote rate was 2.9%.
. It is irrelevant that the plaintiffs in San-dusky County Democratic Party were organizations. “An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right.” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).
. Of note, Bush v. Gore appears to be the first case where a court recognized the developing problem with technology that we confront today. The per curiam opinion noted that the case “brought into sharp focus a common, if heretofore unnoticed, phenomenon” — that nationwide an "estimated 2% of ballots cast do not register a vote for President for whatever reason,” and that "punchcard balloting machines can produce an unfortunate number of ballots which are not punched in a clean, complete way by the voter.” Bush, 531 U.S. at 104, 121 S.Ct. 525. We also note that the dissent begins by criticizing our "reliance on the Supreme Court's murky decision in Bush v. Gore." Dis. Op. at 880. Murky, transparent, illegitimate, right, wrong, big, tall, short or small; regardless of the adjective one might use to describe the decision, the proper noun that precedes it — "Supreme Court”— carries more weight with us. Whatever else Bush v. Gore may be, it is first and foremost a decision of the Supreme Court of the United States and we are bound to adhere to it. More on this later.
. Within this framework, the Court then inquired “whether the recount procedures the Florida Supreme Court has adopted [whereby it instructed that the intent of the voter be determined] are consistent with its obligation to avoid arbitrary and disparate treatment of the members of its electorate.” Bush, 531 U.S. at 104, 121 S.Ct. 525. The Court answered that "[t]he recount mechanisms implemented ... do not satisfy the minimum requirement for nonarbitrary treatment of voters necessary to secure the fundamental right.” Id. Thus, standards for counting votes that "might vary ... from county to county” and sometimes from within a single county, violate the Equal Protection Clause. Id. at 106, 121 S.Ct. 525. Quite correctly, at the end of the per curiam opinion, the Court noted that its "consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” Id. at 109, 121 S.Ct. 525. The Court's substantial voting rights precedent demonstrates as much. The facts change, but the principles and the fundamental nature of the right to vote remain the same.
. Several of the dissenting Justices interpreted the majority opinion to call into question additional state practices and procedures. For example, "[I]n a system that allows counties to use different types of voting systems, voters already arrive at the polls with an unequal chance that their votes will be counted. I do not see how the fact that this results from counties’ selection of different voting machines rather than a court order makes the outcome any more fair.” Id. at 552, 121 S.Ct. 525 (Breyer, J., dissenting). Likewise, scholars have speculated on Bush’s impact. See e.g., Edmund S. Sauer, "Arbitrary and Disparate” Obstacles to Democracy: The Equal Protection Implications of Bush v. Gore on Election Administration, 19 J.L. & Pol. 299, 299 (Oct.2003) (noting that the Supreme Court's holding in Bush v. Gore — ’"that a state must adopt adequate uniform standards in conducting a manual recount of ballots in a presidential election — can be applied in other contexts, rendering some local government practices vulnerable to constitutional challenge.”). Nevertheless, we recognize that seven of the justices agreed that the recount ordered by the Florida Supreme Court violated the Equal Protection Clause; the disagreement was over the remedy.
. The dissent cites Werme v. Merrill, 84 F.3d 479, 483 (1st Cir.1996) (upholding under rational basis review a New Hampshire law that prevented a member of the Libertarian Party from serving as a ballot clerk on Election Day). Whom a state authorizes to serve as a ballot clerk is a far cry from a challenge alleging that a denial of the right to vote. Moreover, the dissent cites Donatelli v. Mitchell, 2 F.3d 508, 515 (3d Cir.1993), which upheld, under rational basis review, a state reapportionment plan that temporarily assigned a state senator to a different district. The dissent goes on to state that "[tjhese cases from our sister circuits serve as a reminder that, the tone of the majority opinion notwithstanding, many state and local voting regulations are evaluated under the rational-basis standard of review.” Dis. Op. at 884. These cases, however, do not support the dissent's claim that rational basis review applies to this claim; they merely support the proposition that some claims involving election law are reviewed under the rational basis standard. Likewise, the law review article that the dissent relies so heavily upon, specifically refutes the claim that rational basis would apply to review a case involving disparate technologies. When discussing the law that would apply to a challenge based on disparate technologies, Professor Hasen concludes that "Bush v. Gore appears to mandate strict scrutiny, not application of rational basis review.”
. Additionally informative, but not dispositive of the constitutional question, is how Congress has defined the "right to vote” under the Voting Rights Act. Under 42 U.S.C. § 19731 (c)(1), the Voting Rights Act provides:
The terms "vote” or "voting” shall include all action necessary to make a vote effective in any primary, special, or general election, including, but not limited to, registration, listing pursuant to this subchapter, or other action required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public or party office and propositions for which votes are received in an election.
(Emphasis added).
. In response to the dissent, we are of course aware that some of these cases were reviewed on the pleadings or on a motion to dismiss under Rule 12(b)(6). Coming from district courts and other circuits, they are not binding upon us (as Supreme Court decisions are). These decisions do have, however, the power to persuade, and it would be irresponsible not to consider their reasoning — both good and bad — simply because they are not binding. If we then agree with their reasoning, we ought to apply it here. If we do not agree, then we should not adopt their reasoning. This, of course, differs from Supreme Court decisions, such as Bush v. Gore, where we are bound to apply their reasoning regardless of whether we agree with them, find them "murky,” Dis. Op. at 880, or believe that the Supreme Court issued its decision with a "lack of seriousness,” Dis. Op. at 886 (quoting Richard L. Hasen, Bush v. Gore and the Future of Equal Protection Law in Elections, 29 Fla. St. U.L.Rev. 377, 391 (2001)).
. We disagree with the dissent’s characterization of the en banc decision in Shelley. Calling the en banc reversal a “rather firm rebuke” of the panel decision, the dissent chastises us for finding insight in the panel decision. Dis. Op. at 40. In any event, our reading of the en banc decision is that the court believed that the issues needed further development and analysis, but that countervailing concerns — i.e., the imminent recall election — dictated the contrary outcome. See Shelley, 344 F.3d at 918 (“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.”). In fact, the en banc opinion consistently stressed the abuse of discretion standard in that case and thus, we do not believe that the en banc decision was a "rather firm rebuke” of the panel’s rationale. See id. (“We have not previously had occasion to consider the precise equal protection claim raised here. That a panel of this court unanimously concluded that the claim had merit provides evidence that the argument is one over which reasonable jurists may differ.”). Nevertheless, with authority on both sides of the issue, the 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). This language hardly has the features of a "rather firm rebuke.” The decision instead placed emphasis on the fact that a state election was mere days away. Here, we have no imminent election weighing on the other side of the scale.
. Again, the dissent misinterprets Burdick when "harmonizing] ” it with our decision in Mixon. Dis. Op. at 885. As the dissent properly notes, Mixon distinguished between regulations that "infringe on the right to vote” and those that do not. The dissent then concludes that reading Mixon and Burdick together requires that we apply rational basis review. These cases (and others cited by the dissent) are distinguishable, however, because they do not infringe on the right to vote or the manner of its exercise. In Burdick, the First Amendment right to ballot access was at issue, not the right to have one’s vote properly counted. Likewise, in Mixon, there was no right to vote for the office at issue. Thus, the law allowing for the appointment of the officials did not take away any right to vote, because the right to vote did not exist for that office. The dissent also relies on Weber v. Shelley, 347 F.3d 1101 (9th Cir.2003), a case it claims "is directly on point.” Dis. Op. at 885. In Weber, however, there was no claim that voters residing in different parts of the state had a lesser likelihood of having their votes counted. Rather, the issue was over whether an electronic-voting system without a paper trail, which the plaintiffs alleged was susceptible to manipulation and potential fraud, restricted the right to vote. There was no allegation in the case that the electronic system — due to its inherent nature — was less likely to count votes than the previously in place system. Nor could there be any conclusion that the lack of a paper trail restricted the right to vote. Thus, the court applied rational basis review — that is, whether the government's conclusion that the risk of fraud and manipulation was insufficient to prevent a change to the electronic system was rational. With no evidence that the decision was irrational — that is, no evidence that someone’s vote was unlikely to be counted — the court upheld the decision. That is in no way inconsistent (or controlling) over our inquiry here. Even in light of the cases the dissent cites, we simply cannot subscribe to the dissent’s belief that in the case before us — -where deficient technology results in a disparate likelihood of the proper counting of votes— that the right to vote is not infringed. Under the dissent's apparent understanding of the right to vote, it seems that the right to vote would not have been infringed in Bush v. Gore because all voters were allowed to cast ballots on equal terms and properly marked ballots would be correctly counted.
. We have focused on the inherent and easily identifiable flaws in the punch card system but the same goes for central count optical scan technology. The error rate for that technology is sufficiently high and the state's justifications in support of retaining it sufficiently weak such that we conclude that decertification of the technology “is practicable and, we
. Additionally, it would be odd indeed for the Supreme Court to have held in Bush v. Gore that the Equal Protection Clause protects the right to have one's vote counted properly during a recount, but for us to conclude that the Clause does not cover the right to have one’s vote counted properly in the first instance.
. In a glass half-full kind of way, the dissent points out that "[w]e should not, after all, lose sight of the fact that nearly 98% of the votes cast even in the punch-card counties were properly counted in the 2000 presidential election.” Dis. Op. at 893. For comparative purposes, we would simply point out that the 2000 presidential election in Florida was decided by 0.009% of the vote; New Mexico was decided by 0.061% of the vote; Wisconsin, 0.22%; Iowa, 0.31%; Oregon, 0.44%; New Hampshire, 1.27%; Minnesota, 2.4%; Missouri, 3.34%; Ohio, 3.51%; Nevada, 3.55%; Tennessee 3.86%; and Pennsylvania, 4.17%. In the 2004 presidential election, Wisconsin was decided by 0.38%; Iowa, 0.67%; New Mexico, 0.79%; New Hampshire, 1.37%; Ohio, 2.11%; Pennsylvania, 2.5%; Nevada, 2.59%; Michigan, 3.42%; and Minnesota, 3.48%. That nearly 98% of the vote was counted seems less deserving of the dissent's accolades in light of the margin of decision in those states.
. Additionally, by stating that the problem is not with the technology, but rather with voters not properly voting, the dissent incorrectly understands the issue. The Caltech-MIT report demonstrates that the error rates due to deficiencies in the technology hold up when other factors are held constant. Moreover, finding no problems with the technology because a properly marked ballot is counted would have rendered Bush v. Gore superfluous. In that case, properly marked ballots were counted without problem, but the Court still found an equal protection violation.
.3,593,958 votes were cast using punch cards; there were 81,767 residual votes, of which 26,955 are arguably explained by intentional undervoting. Thus, there were approximately 54,812 lost residual votes due to error. Also interesting is that following the disputed 2000 election, CalTech and MIT launched the Caltech/MIT Voting Technology Project, a joint venture between the two institutions to study, in part, the reliability of existing voting equipment, see Caltech-MIT Voting Technology Project, http://www.vote.caltech.edu, and produced numerous reports, including one titled, Residual Votes Attributable to Technology: An Assessment of the Reliability of Existing Voting Equipment (Version 2: March 30, 2001). According to the report, punch cards have significantly higher average rates of residual votes than other systems and the difference between the "best” system and punch cards was approximately 1.5% of all ballots cast. Report at 2. The Report also found that across
Votomalic punch cards have consistently high average residual vote rates. In 1988, 1996 and again in 2000, punch cards had substantially higher rates of over and under votes than other available technologies. This is of particular concern because approximately one in three voters use punch cards. If election administrators wish to avoid catastrophic failures, they may heed th[is] warning ... Stop using punch cards.
Report at 11. Of additional interest is the following statement from the Report:
These patterns hold up to closer statistical scrutiny, holding constant turnout, income, racial composition of counties, age distributions 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.
. This is also what the Ninth Circuit panel concluded: "Plaintiffs have tendered sufficient evidence to demonstrate a likelihood of success in establishing that there is no rational basis for using voting systems that have been decertified as unacceptable' in some counties and not others.” Southwest Voter, 344 F.3d at 900.
. Respectfully, the Supreme Court does not issue non-precedential opinions. Moreover, the basis for the dissent's questioning of the precedential value of Bush v. Gore is based on a single law review article. Dis. Op. at 881 (concluding that Bush v. Gore is not deserving of stare decisis respect for the "reasons ably articulated by a leading election-law expert”). We would note that there are at least 116 law review articles with "Bush v. Gore" in the title, accessible on Westlaw, by conducting a search in the database JLR, using TI ("Bush v. Gore "). A search for book titles on the New York University Law Library web page reveals at least 20 published books discussing Bush v. Gore and the 2000 election. The dissent, however, has cited only the Hasen article.
. By this, Hasen means that the five member majority "constitutes a strong break from the conservative majority's usual approach to equal protection, and, therefore, it will not likely be extended or embraced by them in future cases.” Hasen, Bush v. Gore, 29 Fla. St. U.L.Rev. at 390.
. This conclusion is correct of course, for, as we noted earlier, it would be suspect to hold that equal protection protects the right to have one's vote counted in a recount, but for us to conclude that the Clause does not protect the right to have one’s vote counted in the first instance. See also Bush, 531 U.S. at 147, 121 S.Ct. 525 (Breyer, L, dissenting) (“Thus, in a system that allows counties to use different types of voting systems, voters already arrive at the polls with an unequal chance that their votes will be counted. I do not see how the fact that this results from counties’ selection of different voting machines rather than a court order makes the outcome any more fair.”).
. Hasen’s article also contradicts the dissent’s conclusion that rational basis review applies.
It is hornbook law that laws infringing on fundamental rights, including voting, must be judged under the standard of strict scrutiny — that is, that the state must have a compelling interest in treating voters differently and that the means must be narrowly tailored to meet that interest. The Court [in Bush v. Gore] did nothing to suggest that anything less than strict scrutiny, such as an easier to meet ‘rational basis test,’ should apply to analyze the burdens on the fundamental right of voting in this context.
Hasen, Bush v. Gore, 29 Fla. St. U.L.Rev. at 389. Professor Hasen further refutes the dissent’s claim that rational basis review would apply to a case involving a challenge to the use of disparate technologies. He concludes that "Bush v. Gore appears to mandate strict scrutiny, not application of rational basis review.” Hasen, Bush v. Gore, 29 Fla. St. U.L.Rev. at 395.
. For example, in Reynolds, the Court stated: We are told that the matter of apportioning representation in a state legislature is a complex and many-faceted one. We are advised that States can rationally consider factors other than population in apportioning legislative representation. We are admonished not to restrict the power of the States to impose differing views as to political philosophy on their citizens. We are cautioned about the dangers of entering into political thickets and mathematical quagmires. Our answer is this: a denial oi constitutionally protected rights demands judicial protection; our oath and our office require no less of us.
377 U.S. at 566, 84 S.Ct. 1362.
. Because we find in favor of the plaintiffs on Equal Protection grounds — under both strict scrutiny and under rational basis review — we do not reach their claim under the Due Process Clause. The dissent, however, points out our alleged failure to grasp the idea that equality is not a one-way street. Dis. Op. at 893. Thus, in the dissent's view, "governments would also be free to turn the ratchet down to cheaper non-notice technology.” Id. We choose not to engage in the dissent in this battle. Instead, we simply note that the question remains for another day as to whether such a ratcheting down would violate the Due Process Clause.