Full opinion text
MEMORANDUM OPINION Henry E. Hudson, United States District Judge This is an action challenging, on a number of fronts, the constitutionality of Virginia Code § 24.2-643(B), commonly referred to as the Virginia voter ID law or Senate Bill 1256 (“SB 1256”). In effect, this statutory provision requires voters in the Commonwealth of Virginia to present a form of statutorily-approved identification in order to vote. The approved forms of identification include a valid Virginia driver’s license, U.S. passport, or other photo identification issued by the Commonwealth of Virginia, one of its political subdivisions, or the United States; a valid student identification card containing a photograph of the voter and issued by any institution of higher education located in the Commonwealth; or any valid employee identification card containing a photograph of the voter and issued by an employer of the voter in the ordinary course of the employer’s business. Va. Code § 24.2-643(B); see also Pis.’ Trial Ex. 151—Voter Identification Chart. Voters who are unable to produce valid identification are permitted to cast a provisional ballot which must be cured by the Friday succeeding election day. When voters are provided with a provisional ballot for lack of proper identification, it is noted by the election official in the provisional ballot log. The notation specifically includes that no identification is the reason the person is casting a provisional ballot. The voter is then advised of the procedure to cure, enabling her ballot to be counted. To cure a provisional ballot, voters must present valid identification to the local registrar either in person or by fax or email. (Trial Tr. 945:14-46:15, Feb. 25, 2016 (Test, of Myron McClees).) Under the regulations implementing SB 1256, voters without valid identification can obtain free photographic voter identification at a local registrar’s office. The application process requires the voter to identify herself by date of birth and social security number. After confirming that the applicant is a registered voter, her picture is taken and her signature is recorded on a digital pad. A photograph-bearing identification card is then sent to the voter’s address of record free of charge. This form of voter identification can only be issued at registrar’s offices because it requires access to a secure computer system containing the voter’s personal identification. Consequently, such identification cannot be issued at polling stations. (Id. at 1449:9-50:7, 1465:16-66:11, Feb. 26, 2016 (Test, of Edgardo Cortés).) Plaintiffs urge the Court to issue a permanent injunction enjoining the Commonwealth of Virginia and its agents from enforcing the voter ID law. In addition, they ask the Court to find that the photo ID requirement for voting adversely impacts minority voters in violation of Section 2 of the Voting Rights Act, as well as the First, Fourteenth and Fifteenth Amendments of the Constitution of the United States. Plaintiffs also ask this Court to find that the voter ID law intentionally discriminates against young voters in contravention of the Twenty-Sixth Amendment. Following resolution of pretrial motions addressing Plaintiffs’ standing under Federal Rule of Civil Procedure 12(b)(1) and the adequacy of the underlying allegations under Rule 12(b)(6), this Court conducted a seven day trial without a jury. At the close of the evidence, in lieu of oral argument, the Court afforded each party an opportunity to file post-trial memoranda supporting their respective positions with specific references to pertinent portions of the voluminous documents placed into evidence in this case. This opinion followed. The core contention in this case is that the voter identification law was enacted by the Virginia General Assembly with the intention of gaining partisan advantage by placing an undue burden on certain classes of opposition voters. Count I alleges a violation of Section 2 of the Voting Rights Act. In support, Plaintiffs contend that the voter ID law has an adverse disparate impact on African American and Latino voters. Plaintiffs maintain that the law imposes a discriminatory burden on a protected class, fostered in part by social and historical conditions in the Commonwealth of Virginia. In Count II, Plaintiffs maintain that the Virginia voter ID law violates the First Amendment and the Equal Protection Clause of the Fourteenth Amendment in that it imposes an undue burden on the right to vote and results in disparate treatment of protected classes without a rational basis. Count III, styled “Partisan Fencing,” alleges that the Virginia voter ID law subjects a group of voters to disfavored treatment by reason of 'their political views. Lastly, Counts IV and V allege intentional discrimination by race and age, respectively. Plaintiffs contend that the Virginia General Assembly enacted the Virginia voter ID law with the specific intent to suppress African American, Latino, and young voters. In part, Plaintiffs’ evidence consisted of testimony from a dozen Virginia voters who alleged, that they were burdened by the Virginia voter ID law in casting their ballots during the 2014 and 2015 election cycles. These individuals cited a variety of impediments that allegedly made the voting process unduly cumbersome. But in most cases,, complying with the law proved to be a surmountable hurdle. Plaintiffs offered a variety of expert witnesses describing the history of racial discrimination in Virginia politics and a demographic breakdown and analysis of segments of the Virginia population who may not possess valid identification. Virginia election officials and members of the General Assembly provided some legislative history on the enactment on the. Virginia voter ID law and its implementation by the Virginia State Board of Elections (“SBOE”). The centerpiece of Plaintiffs’ evidence was the expert testimony of several professors with extensive experience testifying in election law related cases. One expert concluded that in person voter identification fraud was rare. Another, after providing an overview of election laws adopted by approximately thirty other states, concluded that there was no rational basis for the adoption of the Virginia voter ID law, and given the history of discrimination in Virginia, must have been adopted for the purpose of suppressing minority votes. The Defendants countered with a number of expert witnesses who pointed out that the statistical analysis employed by Plaintiffs arguably omitted a large segment of Virginia voters who likely would have valid identification. Defendants’ experts also testified that based on their investigation and analysis, the implementation of the Virginia voter ID law resulted in very few individuals being unable to cast a vote during the 2014 election cycle. They described the burden imposed by the Virginia voter ID law as having a fairly even effect on individuals of all ages, races, and nationalities. Furthermore, under the statutory scheme adopted under SB 1256, no voter was actually disenfranchised; .each had a means of casting a ballot if he or she chose to exercise alternative voting options. Lastly, the Defendants’ experts pointed out that while the number of actual convictions for voter fraud may be minimal, that statistic may not accurately reflect the number of such eases reported to law. enforcement authorities. Irrespective of statistics, one defense expert .testified that in her opinion, several legitimate reasons existed warranting passage of the voter ID law, including that a large segment of the Virginia population had a perception that in person voter fraud could potentially occur and supported the legislation challenged in this case. To provide some insight into the deliberative process underlying the enactment and the implantation of SB 1256, the Defendants, a former Secretary of the SBOE, and a number of SBOE and Virginia Department of Elections (“VDOE”) employees, along with other local election officials, outlined the extensive public information campaign launched in 2014 to educate .voters on the necessity for proper identification when voting.. Edgardo Cortés (“Cortés”), the current Commissioner of the VDOE, who opposed SB 1256, testified that he and his staff attempted to implement the law in the least burdensome way possible. (Trial Tr. 1500:11-18, Feb. 26, 2016.) While this outreach was not.flawless, it included a large swath of voters. The evidence - in this case clearly demonstrated, as both parties will concede, that Virginia has an unfortunate history of racial discrimination and statutory artifice to hinder black voting. The evidence is equally clear that prior to the adoption of the Voting Rights Act in 1965 (“the.Act”), legislation was enacted by the Virginia General Assembly that materially affected the rights of African Americans to vote. The Voting Rights Act was intended as a safeguard against policies and practices undermining an equal opportunity by black and white voters alike to elect their preferred representatives. Thornburg v. Gingles, 478 U.S. 30, 47, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). While the Act undoubtedly ushered in significant reform measures, underlying issues continued to spark partisan debate. The evidence also revealed that the Virginia voter ID law has created a layer of inconvenience for some voters. But the question squarely presented in this case is whether Virginia Code § 24.2-643(B) is unconstitutional either in its adoption, implementation, or enforcement. Does it, by design or otherwise, adversely affect the opportunity of minorities to vote or is the burden evenly spread? Is a legislative body’s authority to adopt protective legislation dependent on objective criteria or their delegated judgment? I. A Second Look at Standing Before turning to the,merits of Plaintiffs’ claims, the Defendants urge the Court to revisit its earlier finding that the Democratic Party of Virginia (“DPVA”) has Article III standing. In a Memorandum Opinion issued December 18, 2015, this Court concluded, based upon a facial review of the Amended Complaint, that “[i]n the immediate case, the DPVA claims direct injury to its raison d’étre—electing candidates who. support the Democratic platform, as opposed to individualized interests of its members.” (Mem. Op. 8, ECF No. 110). The testimony at trial appears to support this conclusion. While it has no formal membership roster, the DPVA is an umbrella organization encompassing committees of supporters in every city and county in Virginia. Rebecca Slutzky (“Slutzky”), Executive Director of the DPVA, testified that under the party plan, it includes anyone who leans Democratic, votes Democratic, or supports the Party. As the United States Supreme Court explained in Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 843 (1975), associations can allege standing based upon two distinct theories. First, the association “may have standing in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy.” Warth, 422 U.S. at 511, 95 S.Ct. 2197. Second, the association may have standing as the representative of its members who have been harmed. Id.; see also Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 342-43, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). The DPVA serves as an umbrella organization overseeing local committees composed of Democratic supporters, coordinating statewide campaign strategies, and promoting voter turnout. The party expended time and resources to educate voters and party members on the requirements of SB 1256. The party obtained lists of individuals who may not possess proper identification for information targeting. It also hired a voter protection director whose responsibilities included the identification and education of voters potentially burdened by identification requirements. Slutzky also testified that the voter education program necessitated by SB 1256 detracted time and resources that would have otherwise been expended increasing voter turnout. Both the chair and vice chair of the Henrico County Democratic Committee described similar experiences. Both were active in voter identification education. Cheryl Zando (“Zando”), Chair of the Henrico County Democratic Committee, also chaired a task force which organized phone banks promoting free identification available at the registrar’s office. Cathy Woodson (“Woodson”), Vice Chair of the Henrico County Democratic Committee, organized outreach projects at community events to familiarize voters with identification requirements and access to free forms of valid identification. Both Zando and Woodson testified that but for the need to educate voters on the requirements of SB 1256, they would have engaged in other campaign-related activity. Near identical experiences were recounted by Susan B. Kellom, Chair of the Alexandria City Democratic Committee, and Jeff Allen (“Allen”), a Democratic Party field organizer. Collectively viewed, the DPVA has shown sufficient injury primarily in' the form of diversion of time, talent, and resources to educate their voters and implement the requirements of the Virginia voter identification law. See Crawford v. Marion Cnty. Elec. Bd., 472 F.3d 949, 951 (7th Cir.2007) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Sevrs. Inc., 528 U.S. 167, 180-84, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)), affirmed 553 U.S. 181, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008)). In the Court’s opinion, Plaintiffs have satisfied their burden of demonstrating a realistic danger of sustaining direct injury as a result of SB 1256, if in fact it suppresses minority voters likely to support Democratic candidatés. Fla. State Conf. of NAACP v. Browning, 522 F.3d 1153, 1161 (11th Cir.2008). Both individual Plaintiffs in this case are registered voters in Virginia who affiliate themselves with the Democratic Party. They express an intention to vote for Democratic candidates in the future and have been involved in voter registration, education, and voter turnout projects. Both Barbara H. Lee (“Lee”) and Gonzalo Aida Brescia (“Aida”) are members of their local Democratic committee and intend to participate in get-out-the-vote activities during the next election cycle. Aida also testified that as a result of the enactment of SB 1256, he had the additional burden of preparing educational materials on valid forms of voter identification, including emails, graphics, and Face-book postings. These tasks consumed time that he would have otherwise devoted to issue and candidate advocacy. II. Overview of Legal Standards by Which Evidence is Measured Section 2 of the Voting Rights Act, codified at 52 U.S.C. § 10301(a), prohibits any “standard, practice, or procedure ... which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” The statute further explains that “ ‘[a] violation of subsection (a) 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’ citizens of protected races ⅛ that [they] have less opportunity than other members of the electorate to participate" in the political process and to elect representatives of their choice.’ ” League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 238 (4th Cir.2014) (second alteration in original) (quoting 52 U.S.C. § 10301(b)). The central inquiry under Section 2 “is whether as a result of the challenged practice or structure plaintiffs do not have an equal opportunity to participate in the political processes and to elect candidates of their choice.” Gingles, 478 U.S. at 44, 106 S.Ct. 2752 (internal quotation marks and citation omitted). Proof of intentional discrimination is unnecessary to prevail on a Section 2 claim. Proof of discriminatory results is sufficient. Chisom v. Roemer, 501 U.S. 380, 404, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991). “The essence of a [Section] 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.” Gingles, 478 U.S. at 47,106 S.Ct. 2752. Based on a thorough analysis of Section 2 vote-denial jurisprudence, the Court of Appeals for the Fourth Circuit in League of Women Voters of North Carolina isolated the, two critical elements of proving such a claim: First, the' challenged standard, practice, or procedure must impose a discriminatory burden on members of a protected class,'meaning that members of the protected class have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. Second, that burden must in part be caused by or linked to social and historical conditions that have or currently produce discrimination against members of the protected class. 769 F.3d at 240 (internal quotation marks and citations omitted). The Supreme Court has continually counseled that vote-denial cases brought under Section 2 should not be viewed in isolation, but should be evaluated in light of the totality of circumstances. The court in Gingles suggested a number of potentially relevant factors. These include: (1) any history of voting-related discrimination in the pertinent state; (2) the extent to which voting is racially polarized; (3) the history of use of voting practices or procedures that tend to enhance the opportunity for discrimination against minority groups; (4) the exclusion of members of the minority group from candidate slating processes; (5) the extent to which minority group members bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process; (6) the use of even subtle racial appeals in political campaigns; (7) the extent to which the members of the minority group have been elected to public office in the jurisdiction; (8) evidence that elected officials are unresponsive to the particularized needs of members of the minority group; and (9) the. extent to which the policy underlying the state’s use of the practice or structure at issue is tenuous. Cingles, 478 U.S. at 44-45, 106 S.Ct. 2752. In applying the analytical framework articulated in Gingles, “ ‘there is no requirement that any particular number of factors be proved, or [even] that a majority of them point one way or the other,’ ,.. Instead, courts must undertake ‘a searching practical evaluation of the past and present reality,’ [with] a ‘functional’ view of the political process.” League of Women Voters of N.C., 769 F.3d at 240-41 (alterations in original) (quoting Gingles, 478 U.S. at 45, 106 S.Ct. 2752). Turning to the First Amendment and Equal Protection claims raised in Count II of the Amended Complaint, this Court’s review is guided by the balancing framework articulated in Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983), and amplified by Burdick v. Takushi, 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992). The Court succinctly framed the Anderson-Burdick controlling standard in Crawford v. Marion County Election Board: “a court evaluating a constitutional challenge to an election regulation [must] weigh the asserted injury to the right to vote against the precise interests put forward by the State as justifications for the burden imposed by its rule.” 553 U.S. 181, 190, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008) (quoting Burdick, 504 U.S. at 434, 112 S.Ct. 2059) (internal quotation marks omitted). Finally, the teachings of the Supreme Court in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), are instructive in analyzing the intentional discrimination claims in Counts IV and V. The court in Arlington Heights restated the well-established tenet that “[p]roof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.” Id. at 265, 97 S.Ct. 555. Arlington Heights identified a number of factors to be employed by reviewing courts in evaluating facially neutral laws allegedly passed with a discriminatory purpose. This evaluation requires courts to perform “a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Id. at 266, 97 S.Ct. 555. The court further stressed that the impact of the official action may provide an important starting point under discriminatory purpose analysis. Id. In assessing whether racial discrimination has been demonstrated to be a substantial or motivating factor behind the enactment of legislation, Arlington Heights also delineated a number of non-exhausting factors to guide the court: (1) the historical background of the decision-making process, particularly if it indicates a series of official actions taken for invidious purposes; (2) the specific sequence of events leading up to the challenged legislative action; (3) departures from normal procedural sequence; (4) substantive departures, particularly if the factors usually considered important by the decision-maker strongly favor a decision contrary to the one reached; (5) the legislative or administrative history especially where they are contemporary statements by members of the decision-making body, minutes of its meetings or reports. Id. at 267-68, 97 S.Ct. 555. “Once racial discrimination is shown to have been a substantial or motivating factor behind the enactment of the law, the burden shifts to the law’s defenders to demonstrate that the law would have been enacted without this factor,” Hunter v. Underwood, 471 U.S. 222, 228, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985) (internal quotation marks and citation omitted). III. Legislative History of Virginia Voter Identification Bills To provide historical context for the present litigation, some explanation of'the evolution of SB 1256 may serve as an enlightening preface. The stage is set with the adoption of the Help America Voté Act (“HAVA”) of 2002 by the United States Congress. With the objective of protecting the integrity of the electoral process, HAVA imposed a number of requirements on the individual states. Congress required every state to create and maintain a computerized statewide list of all registered voters. 52 U.S.C. § 21083(a)(1)(A). In addition, HAVA required states to verify voter information contained on a voter registration application by using the applicant’s driver’s license number or the last four digits of the applicant’s social security number. Id. § 21083(a)(5)(A)(i). Most pertinent to the ease at hand, HAVA also impose[d] new identification requirements for individuals registering to vote for the first time who submit their applications by mail. If the voter is casting his ballot in person, he must present local election officials with written identification, which may be either “a current and valid photo identification” or another form of documentation such as a bank statement or pay check. If the voter is voting by mail, he must include a copy of the identification with his ballot. A voter must also include a copy- of the documentation with his application or provide his driver’s license number or Social Security number for verification. Finally, in a provision entitled “Fail-safe voting,” HAVA authorizes the casting of provisional ballots by challenged-.voters. Crawford, 553 U.S. at 193, 128 S.Ct. 1610 (citations’ omitted). The photograph identification requirements established by HAVA applied only to federal elections. However, as the Court pointed out in ’ Crawford, the safeguard measures adopted in HAVA did “indicate that Congress believes that photo identification is one effective-method of establishing a voter’s qualification to vote and that the integrity of elections • is enhanced through improved technology. That conclusion is also supported by ... the Commission on Federal Election Reform, chaired by former President Jimmy Carter and former Secretary of State James A. Baker III.” I'd. The requirement that voters present a non-photo form of identification at the polls has been in effect since 1996 in the Commonwealth of Virginia. A registered voter without any form of identification could cast his or her ballot by simply executing an affirmation of identity. .(Trial Tr. 956:20-24, Feb. 25, 2016 (Test, of Myron McClees).) In 2012, it became apparent to the SBOE that the mere signing of an affirmation of identity for first time voters in federal elections who registered by mail was inadequate to comply with HAVA standards. (Id. at 1611:15-Í2:4, Mar. 1, 2016 (Test, of Donald Palmer).) The differing identification procedures for state and federal elections created considerable confusion among poll workers. (Id. at 1611:18-12:11.) In 2012, the Virginia General Assembly rescinded the, self-affirmation procedure and substituted a limited field of non-photograph bearing identification. To promote uniformity, voters in Virginia were required to produce one of the specified forms .of identification in all elections, both state and federal. Va. Code § 24.2-643 (version effective until July 1, 2014). Voters could register by mail without submitting any form of identification and receive a non-photo registration card. While largely supported by Republicans, this legislation was adopted with bipartisan support. It was subsequently reviewed and pre-cleared by the United States Department of Justice as required by the Voting Rights Act. In 2013, just one year after a voter identification bill had been adopted, the General Assembly passed SB 1256. While this legislation expanded the list of permissible forms of identification, it required that the identification include a photograph of the voter. The bill, introduced by Senator Mark Obenshain (“Senator Oben-shain”), sparked spirited partisan debate on the floor of the Virginia General Assembly. SB 1256 was ultimately adopted with unanimous Republican support, coupled with one Democrat and one Independent supporter. (Trial Tr. 1615:8-14, Mar. 1, 2016 (Test, of Donald Palmer).) The law as enacted also provided for the issuance of a free photograph-bearing voter identification card by local registrars’ offices. If the applicant is a registered voter, no further identification is required to obtain a free photo ID. Va. Code § 24.2-643 (version effective from July 1, 2014). Approximately 4,500 free photo IDs have been issued. The language of SB 1256 also required that the photo ID be valid. Donald L. Palmer (“Palmer”), Secretary of the SBOE in 2013, testified that the definition of the term “valid” kindled considerable debate between the SBOE and Senator Oben-shain, patron of SB 1256. In reviewing SBOE’s regulations, Palmer discovered that in either 2000 or 2001, the SBOE had issued guidance to registrars that any form of identification expired in excess of thirty days should be considered invalid. In the ensuing discussions regarding SB 1256’s implementation, the SBOE was not in favor of adopting any specific expiration period. Senator Obenshain sent a letter to the SBOE challenging its authority to permit any form of expired identification to be honored by election officials as valid. The SBOE, over the Senator’s objection, voted to define a valid identification as one not expired over one year. (Trial Tr. 1621:4-17, Mar. 1, 2016 (Test, of Donald Palmer).) After inviting public comment, the regulation was adopted. Palmer also testified that in his opinion, SB 1256 deterred voter fraud and served as a valuable safeguard. (Id. at 1634:5-7.) In fact, he recalled that a computerized interstate crosscheck of persons voting in Virginia against votes cast in other states revealed several cases of possible multiple voting. These cases were referred to the Virginia State Police but did not result in prosecution. (Id. at 1682:3-23.) According to Palmer, many of the provisions of SB 1256 were modeled after voter ID laws adopted in other states such as Georgia and South Carolina, which had been precleared by the Department of Justice pursuant' to the Voting Rights Act. (Id. at 1650:16-23,1680:10-14.) J. Justin Riemer (“Riemer”), Deputy Secretary of the SBOE from October 2011 through January 2014, testified to several initiatives the SBOE undertook to improve the electoral process in Virginia. For example, the SBOE promoted legislation allowing for the Department of Motor Vehicles (“DMV”) to transmit completed voter registration forms electronically to the appropriate registrar’s office so that those voters may be registered and added to the voter rolls. (Id. at 1554:3-55:11.) Additionally, the SBOE attempted to imprdve the process for absentee voting by allowing voters to apply for an absentee ballot online. (Id. at 1555:17-56:3.) Although this initiative ultimately launched after his tenure with the SBOE, he helped to lay the policy groundwork for its implementation. (Id. at 1556:4-6.) In the debate preceding the adoption of SB 1256, Riemer recalled commentary in the General Assembly concerning the existence of voter fraud. He specifically remembered a comment by Senator Thomas A. Garrett (“Senator Garrett”), in his former capacity as a Commonwealth’s Attorney, that Garrett had prosecuted such a case. He also remembered an article in the Richmond Times-Dispatch indicating that voter related fraud may be a “bigger problem in Virginia than [the Times-Dispatch] had realized and ... had acknowledged.” (Id. at 1563:11-64:2.) While Riemer recalled reports of voter registration fraud, he admitted no knowledge of any prosecution for in person voter fraud. He noted that the SBOE conducted no formal study of voter fraud before SB 1256 was adopted. (Id. at 1573:6-9.) Riemer did testify that an analysis was conducted to determine how many voters were in the DMV’s system as either having operator’s licenses or other forms of DMV identification. The results indicated that 93.22 percent of active voters in Virginia had some form of DMV-issued identification. (Pis.’ Trial Exs. 168, 185.) Riemer conceded though that this statistic did not reflect the number of individuals residing in rural areas without access to a motor vehicle or were too disabled to get to polling locations. The 2012 legislation, in its original form, included a provision requiring voters to present photo identification. Delegate Jennifer McClellan (“Delegate McClellan”), a Democrat representing the Richmond area, testified that she was so concerned about its effect on her minority constituents that she approached Governor Robert McDonnell, a Republican, for assistance. Delegate McClellan described her district as an economically diverse majority-minority district with a total black population approaching seventy percent. She also believed that a number of her constituents born as late as 1940s may not have birth certificates enabling them to acquire the necessary identification. Furthermore, in her opinion, the photo identification issued by the DMV was the equivalent of a poll tax because of the $10 cost. She testified that she found the Républican rationale for the photograph bearing identification to be unpersuasive. She was unaware of any reported incidents of voter fraud that would be deterred by such legislation. (Trial Tr. 376:14-77:8, Feb. 23, 2016.) Delegate McClellan convinced Governor McDonnell that the photograph requirement would place an undue burden on her less-affluent constituents. At Delegate McClellan’s urging, and after conferring with other groups representing minority interests, Governor McDonnell amended the 2012 legislation by adding non-photo ID options to the list of acceptable forms of identification. Governor McDonnell also pressed the General Assembly to include a budget item underwriting the cost of educating voters on the new identification requirements. Despite these modifications to the legislation, Delegate McClellan still opposed the 2012 voter identification bill. She testified that she had many constituents who were unemployed, had no driver’s license, or any form of student identification. (Id. at 377:9-18.) Moreover, she stridently opposed the 2013 bill which revived the photo identification requirement. She added that no African-American member of the General Assembly supported the 2013 bill which, in her view, burdened her constituency. Voters in her district were opposed to the 2013 voter identification law because there was no compelling reason to amend the 2012 law by adding a photo identification requirement. (Id. at 380:18-82:7.) In their view, nothing occurred between 2012 and 2013 to justify such action. Prior to being elected to the Virginia Senate in 2015, Scott A. Surovell (“Senator Surovell”) represented the Mount Vernon area of Fairfax County in the House of Delegates. He described his House district as predominately upper class with the exception of Gum Springs, an historic area with a lower income mix of African American and Latino population. The Senator described himself as a life-long political activist aggressively involved in voter recruitment and working the polls. Senator Surovell testified that he dedicated a considerable amount of time as a House member interacting personally with Gum Springs constituents. In his campaign for the state Senate in 2015, Senator Surovell testified that he knocked on approximately 25,000 doors in the area he represents. Although Senator Surovell had only anecdotal evidence, and minimal hard numbers, he suspected that many Gum Springs residents had neither the resources nor the transportation to obtain any form of valid photo identification. Many residents of that area had no Virginia driver’s license and relied on public transportation. The Fairfax County Registrar’s Office, according to Senator Surovell, is located in the government center, which is approximately a two-hour bus ride from his district, and a forty-five minute commute by car. He believed this distance made a free form of voter identification beyond the reach of some lower income voters. Despite an unscientific poll of residents of his House district narrowly favoring a photo identification requirement to vote, Senator Surovell led the opposition to such legislation on the House floor. He too was unconvinced that there were any reported incidents of voter impersonation in Virginia warranting such legislative action. He remembered asking his Republican colleagues to offer examples of voter fraud. He recalls none. In his view, the 2013 legislation was a “solution in search of a problem.” (Id. at 312:23-24.) Although Senator Surovell argued forcefully on the floor of the Virginia General Assembly that such legislation limited the constitutional right of his constituents to vote, he admitted that he was unaware of any incidents where someone was actually denied the right to vote as a result of the photo identification law. While Senator Surovell suspected partisan motives for the adoption of the 2013 legislation, he conceded that popular support for photo identification was probably a factor in its adoption. Algie Howell, Jr., a former member of the Virginia House of Delegates, currently serving on the Virginia Parole Board, opposed voter identification laws. His opposition was based in part on his personal experience attending racially-segregated schools in Virginia, and what he described in his testimony as Virginia’s fifty-year history of discrimination. He recalled that many members of his African-American family had no education. (Id. at 471:2-72:12.) Following the adoption of SB 1256, the VDOE launched a statewide pre-election campaign informing voters of the photo identification requirement. This included sending 86,000 postcards to persons on'the active voter list who DMV records reflected possessed no DMV-issued ID and would likely need a photo ID to vote under the new law. (Id. at 1474:20-75:6, Feb. 26, 2016 (Test, of Edgardo Cortés).) This excluded certain regular absentee voters who would not need photo ID to cast an absentee ballot. To educate local electoral board members, general registrars, and poll workers, the VDOE instituted training programs and issued handbooks and procedural guides. (Id. at 1471:5-14; id. at 940:5-24, Feb. 25, 2016 (Test, of Myron McClees).) Matthew J. Davis (“Davis”), the Chief Information Officer for the VDOE, also testified that his .agency employed billboard ads, radio, and Facebook, to acquaint voters with, the recently enacted identification requirements. (Id. at 1006:15-07:24.) The VDOE contracted with a marketing agency to assist in developing an outreach strategy. With the agency’s assistance, the VDOE distributed over 500,000 fliers and posters to registrars’ offices. (Pis.’ Trial Ex. 155.) There are 133 local registrar’s offices in Virginia. In addition, Davis indicated that VDOE records reflected that 773 provisional ballots were cast by voters without valid identification in 2014, as reported by 129 Virginia jurisdictions. The following year in 2015, 408 provisional ballots were cast by voters with no acceptable form of identification. In 2015, however, twenty-seven jurisdictions failed to report the number of provisional ballots issued to voters without identification. Statistically, this translates to .04 percent of the total ballots cast in 2014 and .03 percent in 2015. (Defs.’ Trial Ex. 301.) IV. Plaintiffs’ Evidence To provide a historical overview of racial discrimination in Virginia, particularly as it relates to voting rights, the Plaintiffs' began their presentation of evidence with the testimony of Dr. John Douglas Smith (“Dr. Smith”). Dr. Smith, who holds a Ph.D. in American history from the University of Virginia and currently serves as the Director of Humanities at Colburn Music Conservatory, was offered as an expert in Virginia history, with an emphasis on racial discrimination. He is the author of a book entitled Managing White Supremacy. Although he proyided his impressions of the effects of contemporary voting policies and practices, the bulk of his writings and research appears to focus on the pre-Voting Rights Act era. Dr. Smith recounted in some detail overt measures adopted in Virginia to inhibit minority voting from the post-Civil War era through Massive Resistance. In his view, following the adoption of the Voting Rights Act in 1965, the strategy employed to suppress minority voting took a more subtle form. According to Dr. Smith, during the post-Civil War era, African Americans initially enjoyed some success in electing African Americans to the General' Assembly, as well as one to the United States House of Representatives. Following the adoption of the revised Virginia Constitution in 1902, African Americans experienced a decline in political power and influence. In Dr. Smith’s opinion, with the imposition of literacy tests and enactment of a poll tax, Virginia’s African Americans were essentially disenfranchised—and remained second class citizens until the mid-twentieth century. Turning to the Civfl Rights Era, following the decision of the Supreme Court in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), firmly resolved Virginia political leaders led the Massive Resistance movement to keep public, schools segregated. One un.yielding county took the extraordinary step of closing its public schools for five years to avoid integration. Laws passed in Virginia to hinder desegregation were repeatedly struck down by federal courts, along with Virginia’s poll tax for state elections. In the interim, the Twenty-Fourth Amendment was adopted to abolish the poll tax for federal elections. In discussing more.contemporary times, Dr. Smith highlighted the election of L. Douglas Wilder as the first popularly elected African-American governor in American history. But as examples of con-timing racial overtones in modem Virginia politics, he pointed out that Governor Wilder was elected by a smaller than expected margin of victory in 1989. He also noted the Declaration of April as Confederate History and Heritage Month by Republican governors and Senator George Allen’s use of the term “macaca” when referring to a man of South Asian descent as further evidence that race continues to play a role in Virginia’s politics. As further examples of residual evidence of racial discrimination in Virginia, Dr. Smith discussed the ongoing litigation over claims of racial gerrymandering, coupled with approximately twenty objections by the Department of Justice to changes in Virginia’s voting laws under Section 5 of the Voting Rights Act. In support of his conclusion that subtle remnants of discrimination remain in Virginia politics, Dr. Smith points to the fact that Virginia has failed to elect an African American to a statewide office since Governor Wilder’s election in 1989, which was preceded by his election as Lieutenant Governor in 1985. Dr. Smith does acknowledge that Republicans have twice nominated African-American candidates for statewide office in recent years, while Democrats have failed to do so. In his final analysis, Dr. Smith concludes that Virginia’s voter identification law is consistent with the long line of actions taken over Virginia’s history to suppress minority vote. Dr. Smith appears to assume that the viewpoint of current legislators must be infected by this inherited legacy. While Dr. Smith’s testimony is informative, his broad conclusions appear to be leavened largely by anecdotal evidence and historical inference with scant eviden-tiary support. Dr. Smith neither interviewed any member of the General Assembly nor reviewed the legislative record. To demonstrate the burden to voters occasioned by SB 1256, Plaintiffs introduced evidence from a series of individuals and local election officials who recounted experiences prior to and during the 2014 election cycle. These witnésses uniformly describe themselves as favoring Democratic candidátes. Two of the twelve burdened voter witnesses were African American and the other ten were Caucasian. Of the twelve, four people actually cast votes in the 2014 or 2015 election: two timely cured their provisional ballots, one voted absentee, and one returned to the polls with valid identification. Eight other voter witnesses made a conscious choice not to pursue other voting options or cure their provisional ballots, either because the winner had been declared, they lost interest, forgot, or were angry. One of these witnesses, who testified that she left the polls in frustration, indicated that no one offered her a provisional ballot. Two other non-voting witnesses testified that they were unaware that they could cure their provisional ballots by fax or email. In almost every case, the testifying voter was unable to produce a valid identification at the polls. Six of these individuals, despite being bona fide Virginia residents, had either an out-of-state or expired driver’s license. One had lost his voter identi-fícation; one had no Virginia operator’s license, but had a valid passport, which he omitted to bring to the polls. One had an expired passport and another voter reasoned that because the poll workers knew him, no photo ID should be necessary. Finally, two of the voter witnesses failed to timely receive their free voter, identification. Each of these voters was eligible to cast absentee ballots but some chose not to do so and others were unaware that it was available. All twelve of the allegedly burdened voters who testified expressed frustration with their initial inability to vote without photo identification. Most testified that they were unaware of the requirement. Each also expressed their disagreement with the need for such unexpired identification. Some were disgruntled by the necessity to travel to the registrar’s office to cure their vote, particularly those who were disabled or elderly. Plaintiffs also designated depositions of two affected voters as evidence. Charles Benagh, a white male, chose not to vote in-person in 2015 even though Fairfax County had informed him that he possessed an appropriate form of identification. (Benagh Dep. 43:1-11, 48:20—50:3, Pis.’ Trial Ex. 220.) Instead, he applied for and received an absentee ballot, which he chose not to return because he did not believe that he could mail it and have it delivered in time to be counted. (Id.) Mary Joanna Jones (“Jones”), an eighty-one year-old African American, attempted to vote in-person during the 2014 general election, but she did not have an acceptable form of identification. (Jones Dep. 11:1-14, 13:3-23, Pis.’ Trial Ex. 224.) She cast a provisional ballot, which she cured the following Thursday. (Id. at 16:12-25, 29:5-14.) She attempted to obtain her free photographic identification from the registrar’s office when curing her ballot, but because of a mix-up in Richmond, she did not receive her free identification in a timely manner. (Id. at 18:4-22:20.) To accommodate her, an individual from the registrar’s office came to Jones’s home in September 2015 to take her picture for the free identification. (Id. at 22:21-23:25.) She received her identification before the general election and successfully cast her ballot that fall. (Id. at 22:21-25.) In the final analysis, none of the voter witnesses was actually denied his or her right to vote. Admittedly, for some, the process was cumbersome. Many voters, including a number who testified in this case, were not informed they could cast an absentee ballot, that they could cure the provisional ballot, or obtain a free photo ID. Others had valid identification but failed to bring it to the polls. To further illustrate the impact of SB 1256, Plaintiffs offered the testimony of a number of Democratic Party activists and election officials. These witnesses recounted the difficulty in educating low income and minority voters on the requirement of photo identification. Most of these witnesses indicated that voters in their community did not understand the need for photograph bearing identification. The chair and vice chair of the Henrico County Democratic Committee described their voter outreach campaign, which was conducted in league with the SBOE. It included phone banks, palm cards, fliers, and Facebook postings. Their efforts specifically targeted minority and elderly voters. The vice chair described the outreach program as successful. The secretary of the Prince William County Electoral Board described his community as a “battle ground” district with a fairly even minority-majority population. (Trial Tr. 657:19-58:2, Feb. 24, 2016.) He intimated that because the local police frequently check on members of the Latino community to ensure that they have proper immigration identification, there may be a mistrust of government. In his view, the photo identification requirement was unnecessary and was not well-received by voters in his county. He found the requirement particularly problematic in high turnout election years because it contributed to longer lines. The chair of the Alexandria Democratic Committee, who served on the Electoral Board as well, also described her education outreach as focusing on young and elderly voters. Particularly challenging for her was maintaining a list of colleges that have some presence in Virginia. Since this is a prerequisite to the validity of a college identification, she found herself frequently having to check a schedule of approved colleges, She also questioned the need for a photo ID to vote. Three other Democratic operatives added their perspective. Plaintiff Barbara Lee, from Stanton, Virginia, believed that the voter identification requirement lowered voter turnout. She also believed that the requirement adversely impacted low income areas in which people had neither the time nor transportation required to obtain valid identification. Lee, however, was only able to identify one person who, she believed, could not vote as a result of the voter identification requirements. She also admitted on cross-examination that she never advised this individual of her right to cast an absentee ballot. Jeff Allen, from Alexandria, Virginia, a campaign manager, political consultant, and Democratic field organizer, described the challenge he encountered in educating what he described as lower turnout voters. He revealed that in explaining the requirements of the voter identification law, he only mentioned the alternative of casting an absentee ballot if specifically asked. He recalled encountering one bedridden voter who, he believed, had no photo identification. Allen added on cross-examination that the bedridden voter indicated no interest in casting an absentee ballot. Plaintiff Gonzalo Aida, a member of the Richmond Democratic Committee, found the voter ID law to be an obstacle during the 2014 elections. Aida focused his get-out-the-vote activities on Latino communities and university campuses. He found university students, by and large, to be unwilling to devote the necessary time to acquire photo identification. As a poll worker, he encountered a number of people without valid photo identification. Only a few people, however, declined to accept provisional ballots. He did encounter some African Americans who were frustrated and refused to accept provisional ballots. Aida admitted on cross-examination that he was unaware of any person who was unable to vote because of the Virginia voter identification law. V. Defense Witnesses The defense called a number of Virginia election officials, most of whose testimony is recounted in other sections of this opinion. These witnesses include Edgardo Cortés, Commissioner of the VDOE; J. Justin Riemer, former Deputy Secretary of the SBOE; Matthew J. Davis, Chief Information Officer, VDOE; and Donald Palmer, former Secretary of the SBOE. The defense also introduced the testimony of Myron McClees, Policy Advisor, VDOE. McClees attended a number of the committee hearings on SB 1256. He encountered considerable partisan sparring but remembered arguments in favor of the bill as a vehicle to reduce voter fraud. McClees characterized the decision of the SBOE to adopt a one-year expiration date for voter identification as a compromise. McClees’s responsibilities also included educating voters on the identification requirements prescribed by SB 1256. His personal voter outreach focused on low income and minority voters. For example, he sent letters to members of the NAACP and to members of the clergy explaining the regulations and offering further assistance. McClees was concerned that the provisional ballot used in 2014 did not mention the availability of free voter ID. The present provisional ballot includes such information. The Defendants also called Cameron Quinn (“Quinn”), former Fairfax County general registrar, as a witness. Quinn described her extensive outreach efforts to educate the 700,000 voters in her county on post-2013 voter identification requirements. To enhance its implementation, she employed both mobile and satellite offices to register voters and issue free forms of identification. Quinn readily admitted that she encountered a number of complications in implementing the newly-enacted photo identification requirement. She recalled in July of 2014 sending, a letter to Commissioner Cortés explaining problems with the mobile system for issuing free voter identification. It required several, weeks to bring the system back online. Quinn testified that during the 2014 election cycle, just under 500 provisional ballots were cast in Fairfax County. Fifty of those were cast because the voter could not present valid identification. Of that number, approximately one half were cured within the statutorily-allotted time frame. (Trial Tr. 1718:19-19:1, Mar. 1, 2016.) VI. The Experts’ Interpretation of the Impact of SB 1256 on Minority and Young Voters To add an interpretative gloss to the factual evidence, each side presented an array of expert witnesses, most drawn from the academic community. Their widely differing opinions were based on statistical models shaped from surveys, public data, and academic studies. Several experts employed analytical constructs crafted specifically for this type of litigation, purporting to identify burdened segments of the population likely to have no valid identification enabling them to vote. And, each expert, in varying degrees, acknowledged Virginia’s undeniable pré-Voting Rights Act history of discriminatory voting policies. The experts, however, presented divergent viewpoints on the justification for photo-bearing voter identification, as well as the motives of the Virginia General Assembly in enacting such legislation. a. Dr. Allan Lichtman To support their contention that SB 1256 was intended to discriminate against certain groups by placing disparate burdens on yoting rights, the Plaintiffs called Dr. Allan Lichtman (“Dr. Lichtman”), a distinguished professor of history at the American University. In formulating his opinions, Dr. Lichtman applied quantitative methodology to draw inferences from political history. His resources included scholarly books, articles, reports, newspapers, demographies, election returns, court opinions, and scientific surveys. The professor noted that he had testified many times previously as an expert in the field of legislative intent. Based upon his historical and- quantitative analysis, and relying on eight of the nine factors articulated in Gingles, supra, Dr. Lichtman concluded that the Virginia voter ID law in controversy in this case was enacted and implemented with discriminatory intent. He further qpined that the law was enacted not only to achieve political advantage but also to burden the Democratic minority base. In his view, race is a fundamental divide politically between the Democratic and Republican parties. He perceives the political base of the Republican Party as white voters and that of the Democrats to be African Americans. Despite significant progress in recent years, African Americans, according to Dr. Lichtman, have a much lower income, are less likely to have a college degree, and more likely to be unemployed than white voters. He describes the present economic status of African Americans as a lingering effect of historical discrimination. Dr. Lichtman conceded that much of the basis for his conclusions consists of a mosaic of circumstantial evidence. Normally, according to Dr. Lichtman, legislators do not openly state their intent when it is discriminatory. He highlighted the fact that votes cast in the General Assembly on SB 1256, both in committee and on the floor, were either party line or near party line. It was also noteworthy to the professor that Virginia amended the 2012 voter ID law the following year to add the photo requirement without what he believed to be any rational basis. The statistical risk of voter fraud cannot logically explain the addition of a photo requirement- in 2013. Dr. Lichtman was quick to add that a Republican National Lawyers Association study was unable to identify aqy cases of voter impersonation fraud in Virginia. Also significant to the professor in informing his opinion was Senator Obenshain’s opposition to the SBOE’s decision to allow expired identification. He also suggested that members of the General Assembly should have known about academic studies showing that voter identification laws have a disparate impact on African Americans. In commenting on the so-called “Senate factors” relied upon in Gingles, Dr. Licht-man drew particular attention to several factors which he contends are applicable in Virginia. With respect to subtle racial appeals in campaigns, Dr. Lichtman mentioned a disparaging racial comment made by Senator George Allen during his reelection campaign in 2006 and arguably racial cartoons attributed to Republican sources. Although he presented no information about the number of African Americans running for public office in Virginia, he considered the fact that L. Douglas Wilder was the only African American elected to statewide office and that African Americans are underrepresented in the General Assembly. He also cited the legislature’s rejection of a proposed constitutional amendment enabling the automatic restoration of voting rights to nonviolent former felons. Lastly, Dr. Lichtman was of the opinion that the failure of the General Assembly to expand Medicaid was an example of elected officials not being responsive to the needs of African Americans. He offered no explanation as to how Virginia would absorb the cost. While Dr. Lichtman conceded that evidence of actual suppression is difficult to unearth, he steadfastly disagreed that other states which passed a strict voter ID law did so without a latent motivation to suppress minority vote. To bolster his conclusion, he elaborated by saying that of the fourteen states which passed voter identification laws after 2008, most had Republican control of the legislature. In two of those states, according to Dr. Lichtman, the legislatures overrode the veto of a Democratic governor. Rhode Island was the one state that enacted voter ID with a Democratic state legislature and an Independent governor. b. Testimony of Dr. Lorraine Minnite To provide an assessment of the frequency of voter fraud in Virginia, the Plaintiffs called Dr. Lorraine Minnite (“Dr. Minnite”), an associate professor at Rutgers University, Department of Public Policy and Administration. Dr. Minnite was received as an expert in the field of American election law and voter fraud. She is the author of a book entitled The Myth, of Voter Fraud. After surveying all available information and statistics, Dr. Minnite concluded that voter fraud is rare in Virginia. Her investigation found no reported cases of voter impersonation fraud in Virginia in recent elections. For the purpose of her analysis, she adopted the definition of voter fraud as the intentional corruption of the voting process by voters. Under her interpretation, the deception by the voter has to be intentional. Dr. Minnite’s findings are based on a combination of national and Virginia state data. She obtained prosecution statistics from the United States Department of Justice, sent surveys to 2,700 district attorneys in the United States, and wrote letters to every state attorney general and secretary of state. She also requested similar information from all of Virginia’s Commonwealth’s Attorneys. However, she received responses from only nineteen of over 100 Virginia prosecutors. Some of the Commonwealth’s Attorneys responded that they had received complaints of fraud-related activities by voters, but none appeared to result in a formal prosecution. Similarly, she received information, from the Virginia State Police reporting convictions for election law violations. .On review, she concluded that most of these convictions were for illegal voting activities, but not fraudulent voter impersonation. In harvesting information concerning the incidences of voter fraud in Virginia, she read 647 relevant news articles. She gleaned from these articles that there were approximately sixty cases of illegal voting by felons, but none involved actual voter impersonation. Dr. Minnite confined her statistical analysis to actual convictions and not reports of -alleged violations to law enforcement. (Trial Tr. 770:16-71:08, Feb. 24, 2016.) She also assumed in her study that if there was credible evidence of voter fraud, the prosecutor would have formally brought charges. She had no way of determining what criteria prosecutors may have used to determine whether- it - was appropriate to pursue an indic