Ohio Organizing Collaborative v. Husted (189 F. Supp. 3d 708, 2016)

United States District Court for the Southern District of Ohio 2016-05-24

The Public Health and Welfare

Citations

Full opinion text

FINDINGS OF FACT AND CONCLUSIONS OF LAW

MICHAEL H. WATSON, JUDGE, UNITED STATES DISTRICT COURT

On May 8, 2015, The Ohio Organizing Collaborative (“OOC”), Jordan Isern, Carol Biehle, and Bruce Butcher filed suit against Ohio Secretary of State Jon Hust-ed (“the Secretary”) and Ohio Attorney General Mike DeWine in their official capacities, challenging various Ohio election laws, directives, and policies. Compl., ECF No. 1. Thereafter, Plaintiffs amended their complaint to substitute OOC with the Ohio Democratic Party (“ODP”), the Democratic Party of Cuyahoga County (“DPCC”), and the Montgomery County Democratic Party (“MCDP”). Am. Compl., ECF No. 41.

The case proceeded directly to trial on an expedited schedule, including expedited discovery, and the Court held a ten-day bench trial. As explained in greater detail herein, the Court finds that Senate Bill 238’s (“S.B. 238”) amendments to Ohio Revised Code § 3509.01 reducing the early in-person (“EIP”) voting period violate the Fourteenth Amendment to the United States Constitution and Section 2 of the Voting Rights Act of 1965 (‘VRA”) and enjoins Defendants from enforcing or giving any effect to that provision. The Court finds in favor of Defendants on the remainder of Plaintiffs’ claims.

I. Introduction

Plaintiffs challenge the following election laws, directives, and policies:

• S.B. 238’s reduction of the number of days in the EIP voting period and elimination of same-day registration

• Ohio Revised Code § 3501.10(C)’s limitation of one EIP voting location per county

• Senate Bill 200’s (“S.B. 200”) change to the law regarding the minimum number of direct recording electronic voting machines (“DRE machines”) that counties are required to maintain if they use DREs as their primary voting device and Directive 2014-26’s policy regarding the minimum number of DRE machines counties are required to deploy on Election Day

• Senate Bill 205’s (“S.B. 205”) restrictions on unsolicited absentee ballot mailings (including the prohibition on boards of elections (“BOE”) conducting such mailings, the prohibition on including prepaid postage in those mailings, and the limitations on the Secretary’s mailings) and the Secretary’s policy of excluding certain voters from unsolicited absentee ballot application mailings as outlined in Directive 2014-15

• S.B. 205’s and Senate Bill 216’s (“S.B. 216”) addition of categories of information required to be provided on absentee ballot envelopes and provisional ballot affirmation forms

• S.B, 216’s reduction in the cure period for provisional ballots cast due to a lack of identification and its prohibition on elections officials completing on a voter’s behalf a provisional ballot affirmation form

• S.B. 216’s failure to require BOEs to consolidate multi-precinct poll books

Plaintiffs claim that these laws, directives, and policies, hereinafter referred to as “the challenged provisions,” disproportionately burden the right to vote of African Americans, Hispanics, and young people and are therefore unconstitutional and violate the YRA. They further allege that the Ohio General Assembly passed the challenged provisions at least in part with the intent to discriminate against those groups of voters, that S.B. 205 .and S.B. 216 violate the Civil Rights Act of 1964 (“CRA”), that portions of S.B. 216 violate procedural due process and equal protection, and that all of the challenged provisions unconstitutionally “fence out” Democratic voters. They seek declaratory and injunctive relief, as well as orders mandating Defendants take certain actions.

As a preliminary matter, while Plaintiffs’ claims are based on the alleged effects of the challenged provisions on African Americans, Hispanics, and young people, the evidence adduced relates almost entirely to African Americans. Plaintiffs point to some evidence of the impact of S.B, 238 on young people, but they did not develop an argument based on that evidence. Rather, Plaintiffs focused their arguments ■ on the impact of the challenged provisions on African Americans. The Court therefore finds that Plaintiffs’ claims fail with respect to Hispanics and young people and addresses their claims with respect to African Americans only. ■

The Court also notes that the State of Ohio does not collect, and therefore does not have, information on the racial identity of its voters. As explained in greater detail below, the inability to confirm voter race is a key deficiency in the experts’ analyses of the impact of the challenged provisions on different racial groups. Although the experts employed various methods to address this issue, the Court is nevertheless forced to evaluate the challenged provisions’ burdens on the fundamental right to vote based in part on somewhat speculative expert evidence.

With this in mind, the Court, pursuant to Federal Rule of Civil Procedure 52, makes the following findings of fact and conclusions of law. The Court will begin by briefly describing the parties. It will then identify the witnesses who testified at trial and address the weight afforded to the opinions of the expert witnesses. Next, the Court will briefly describe the relevant history of Ohio’s election administration and the voting opportunities currently available to Ohio voters. After addressing some preliminary legal issues, the Court will finally address the merits of Plaintiffs’ various claims, addressing each legal theory and challenged provision in turn.

II. Parties

A. Plaintiffs

The Plaintiffs in this case are ODP, DPCC,. MCDP (collectively “Democratic Party Plaintiffs”), Jordan Isern, Carol Biehle, and Bruce Butcher (“Reverend Butcher”).

The Democratic Party Plaintiffs claim African Americans as one of their key constituencies. Tr. Trans. 31-32, ECF No. 97 (Martin); Tr. Trans. 87, ECF No. 101 (Owens); Id. at 113-14 (Beswick). They engage in get-out-the-vote (“GOTV”) efforts, primarily with their constituencies. Tr. Trans. 19-20, 32-34, ECF No. 97 (Martin); Tr. Trans. 90-91, 94-95, ECF No. 101 (Owens); Id. at 117-18,127-28 (Beswick).

Reverend Butcher is a pastor in Summit County, Ohio, who has been and will continue to be involved in GOTV efforts. Tr, Trans. 102-17, ECF No. 96 (Butcher). Carol Biehle is a voter who votes in a multi-precinct voting location. Id. at 172 (Biehle). Jordan Isern did not testify at trial, nor did Plaintiffs adduce any evidence concerning his role as a plaintiff in this lawsuit.

B. Defendants

The Defendants in this case are Jon Husted and Mike DeWine, both sued in their official capacities. Jon Husted is the Secretary of State of Ohio and, as such, is Ohio’s chief election officer. Ohio Rev. Code § 3501.04. Mike DeWine is the Attorney General of Ohio and, as such, represents the State in all legal matters.

III. Plaintiffs’ Witnesses

A. Expert Witnesses

1. Dr. Jeffrey Timberlake

Dr. Jeffrey Timberlake is a tenured Associate Professor of Sociology at the University of Cincinnati whose research focuses on,- inter alia, racial and ethnic inequalities. PX 109 at 5 (Timberlake Rep.). At trial, the Court admitted Dr. Timberlake as an expert in sociology. Tr. Trans. 197, ECF No,' 97. He submitted an initial report evaluating the Senate Factors relevant- to establishing a violation of Section 2 of the VRA and analyzing the likely impacts of the challenged provisions on the enfranchisement of minority voters. PX 109 at 1-2 (Timberlake Rep.). Using public data sources and various statistical methods, Dr. Timberlake concluded that African Americans in Ohio are subject to various types of discrimination and inequalities that negatively affect their ability to participate in the political process and that the challenged provisions will disproportionately and negatively impact minorities. PX 109 at 61-62 (Timberlake Rep.). He also submitted a rebuttal report evaluating the expert testimony of Defendants’ experts Dr. Trey Hood and Sean Trende. PX 110 (Timber-lake Reb.).

Much of Dr. Timberlake’s reports examine the impact of the challenged provisions on African American versus white voters. In doing so, Dr. Timberlake employed two different methods to address the lack of information regarding the racial identity of Ohio’s voters. See Tr. Trans. 106, ECF No. 97 (Timberlake).

In his initial report, Dr. Timberlake employed a “binning” method to compare, inter alia, the usage rates of various voting methods among minority and non-minority voters. PX 109 at 51-60 (Timberlake Rep.). He classified Ohio’s counties by minority and poverty level, placing each of the eighty-eight counties into one of three county types: high minority, low minority/high poverty, and low minority/low poverty. Id. at 7. Using these groupings, Dr. Timberlake presented data comparing voting behaviors among the county types. Id. at 51-56.

This binning analysis is subject to the ecological inference problem, or making false inferences about individuals using aggregate-level data. DX 18 at 10 (Hood Reb.); DX 20 at 15 (McCarty Reb.); PX 110 at 2 (Timberlake Reb.). The problem is best illustrated with respect to Dr. Tim-berlake’s evaluation of Golden Week usage:

Although [high minority counties] have a high percentage of minorities relative to other counties in Ohio, non-Hispanic whites still comprise more than 70% of the population even in the high minority county grouping. While one may observe a higher incidence of votes cast during Golden Week compared to the two other county groups, there is absolutely no way in which a researcher can confidently infer that minorities are. the voters utilizing early in-person voting at higher rates than whites. In racial terms, we simply do not know who it is that is voting early in-person.

DX 18 at 10 (Hood Reb.); see also Tr. Trans. 100-01, ECF No. 99 (Hood); DX 20 at 15 (McCarty Reb.) (“[W]e cannot assume that because there is heavy usage of Golden Week in counties with high black populations that it must be that blacks use Golden Week more often. It is possible that whites in counties with large black populations use Golden Week more often than whites in other counties.”); Tr. Trans. 36, ECF No. 98 (McCarty).

The Court finds that the ecological inference problem significantly diminishes the weight of Dr. Timberlake’s binning analysis and that such analysis, standing alone, provides little support for the conclusions drawn therefrom. Accordingly, Dr. Tim-berlake’s conclusions with respect to restrictions on absentee ballot mailings and provisional balloting, for which this binning analysis is the primary support, see PX 109 at 55-58 (Timberlake Rep.), are entitled to little weight.

In his rebuttal report, however, Dr. Timberlake addressed this ecological inference problem by employing a different methodology to assess the likely racially disparate impact of the challenged provisions. PX 110 at 2 (Timberlake Reb.). First, by looking to information regarding a voter’s address, the date he or she voted, and the method by which he or she voted, Dr. Timberlake determined whether a voter voted during Golden Week and whether it was in-person or by mail. Tr. Trans. 125, EOF No. 97 (Timberlake). He then matched the voter’s address to a census block, coded the block, and merged it with census data to get a sense of the racial composition of the block. Id. A census block is the smallest grouping of geography used by the census and tends to have the most homogenous racial and ethnic composition. Id. at 128. He then “divided the number of voters [in the voter files] by the total population in each block to derive the population-adjusted rate of use of Golden Week and [early-in-person] voting for each block.” PX 110 at 2 (Timberlake Reb.). Finally, he “generated variables to measure the percent African American in each block, and whether each block was ‘homogenous black’ or ‘homogeneous white’ (100% black or white population, respectively), or ‘nearly homogeneous black’ or ‘nearly homogenous white’ (at least 90% black or white, respectively).” Id. The inference drawn from this method is that if a voter lives in a block that is 100% African American, then that voter must be African American. Id.; Tr. Trans. 128, EOF No. 97 (Timberlake).

He applied this method to evaluate Golden Week EIP usage in Cuyahoga, Hamilton, and Mahoning Counties in the 2008, 2010, and 2012 elections. PX 110 at 5-6 (Timberlake Reb.). He first examined the linear relationship between the percentage of African Americans in a census block to the percentage of EIP and Golden Week votes cast in that block, finding that in 2008, 2010, and 2012, the voting rate increases as the percentage of African Americans in the block increases. Id. at 5-6, 9-10. Next, he compared Golden Week voting rates in 100% homogenous black and white blocks, finding that the Golden Week voting rate in 100% homogenous black blocks in 2008 and 2012 was greater than in 100% homogenous white blocks. Id. at 5-6. He found the same when comparing nearly homogenous black and white blocks. Id. He also concluded that EIP voting in general in those blocks was higher among blacks than among whites. Id. at 9-10. These findings, he opines, strongly suggest that African Americans voted EIP, and specifically during Golden Week, at a much higher rate than did whites. Id. at 7, 10.

The Court finds this census block analysis credible. Although the analysis relied on data from only three counties, the Court finds it probative, as those counties are three of the largest counties in Ohio and contain nearly two-fifths of Ohio’s minority population. See PX 109 at 8 (Timberlake Rep.); PX 110 at 1 (Timberlake Reb.); see also N.A.A.C.P. v. Husted, 768 F.3d 524, 535 (6th Cir.2014), vacated as moot by 2014 WL 10384647 (district court did not clearly err in relying on findings based on an analysis of only five counties because those counties made up one-third of Ohio’s population and nearly seventy-three percent of all African Americans living in Ohio).

The Court further finds that the census block analysis with respect to Golden Week and EIP usage coupled with the binning analysis of the same provide sufficient support for Dr. Timberlake’s conclusions regarding the disproportionate use of Golden Week and EIP voting by African Americans in Ohio. See N.A.A.C.P. v. Husted, 768 F.3d at 534-37 (finding that the district court did not err in relying on a similar census block analysis conducted by Dr. Daniel Smith).

In so finding, the Court notes three things. First, the Court disregards Dr. Timberlake’s discussion of Dr. Daniel Smith’s expert report in N.A.A.C.P. v. Husted, 43 F.Supp.3d 808 (S.D.Ohio 2014). While Federal Rule of Evidence 703 sometimes permits experts to rely on inadmissible evidence when forming their opinions, it does not permit an expert to bolster his own opinion by testifying that another, non-testifying expert’s conclusions are the same as his own. Mike’s Train House, Inc. v. Lionel, L.L.C., 472 F.3d 398, 409 (6th Cir.2006). Nevertheless, the Court independently notes that another judge of this Court and the Sixth' Circuit credited Dr. Smith’s similar analysis in N.A.A.C.P. v. Husted. See 43 F.Supp.3d at 829-30; 768 F.3d at 534-37 (district court did not clearly err in crediting Dr. Smith’s analysis). Second, Dr. Timberlake’s use of Dr. Ros-cigno’s report does not impact the weight afforded to Dr. Timberlake’s- opinions. See Tr. Trans. 132,134-36, ECF No. 100 (Timberlake); Tr. Trans. 182-84, ECF No. 97 (Timberlake). Third, Dr. Timberlake’s decision to evaluate the 2008 and 2012 elections as opposed to the 2010 and 2014 elections does not diminish the weight afforded to his opinions. Cf. N.A.A.C.P. v. Husted, 768 F.3d at 535-36 (it is incorrect to assume that future elections in Ohio will not contain the same campaign effects as did the 2008 and 2012 elections).

The Court also accepts Dr. Timberlake’s findings regarding the socioeconomic disparities between African Americans and whites, racially polarized voting, and statistics regarding the race of elected officials in Ohio. See PX 109 at 12-42, 45-50 (Timberlake Rep.). However, the Court considers his opinions based on these findings in light of the related evidence offered by Dr. Hood. See DX 16 at 2-9 (Hood Reb.).

2. Dr. Muer Yang

Dr. Muer Yang is an assistant professor in the Department of Operations and Supply Chain Management at the Opus College of Business, University of St. Thomas and has been studying voting lines since 2007. PX 113 at 3 (Yang Rep.); Tr. Trans. 162-63, ECF No. 98 (Yang). At trial, the Court admitted Dr. Yang as an expert in operations management. Id. at 165.

Dr. Yang authored an initial report in which he used discrete event simulation models to demonstrate the likely effect of S.B. 200, S.B. 205, and Directive 2014-26 on wait times at voting locations. PX 113. He also authored a rebuttal report criticizing Dr. Allen’s use of queuing theory. PX 114.

Dr. Yang concluded that S.B. 200 and Directive 2014-26 will reduce the number of DRE machines available for use, which will, in turn, increase voter wait times on Election Day. PX 113 at 20 (Yang Rep.). The Court credits Dr. Yang’s analysis but considers his findings in light of his assumption that counties will adhere to the minimum number of DRE machines required by statute and his failure to account for back-up paper ballot and optical scanning methods in DRE counties. See, e.g., Tr. Trans. 199, 203, 209, ECF No. 98 (Yang); DX 19 at 12 (Allen Reb.).

3. Dr. Lorraine Minnite

Dr. Lorraine Minnite is an Associate Professor in the Department of Public Policy and Administration at the University of Rutgers, Camden, and her area of expertise includes the incidence and effect of voter fraud in American elections. PX 107 at 1-2 (Minnite Rep.); Tr. Trans. 16-17, ECF No. 102 (Minnite). The Court admitted Dr. Minnite as an expert at trial, but the parties disputed whether she should be admitted as an expert on the incidence and effect of voter fraud in American politics or American elections. Tr. Trans. 18-19, ECF No. 102. Having heard Dr, Minnite’s testimony, the Court admits her as an expert on the incidence and effect of voter fraud in American elections.

Dr. Minnite concluded that voter fraud is extremely rare. PX 107 at 1 (Minnite Rep.). The Court finds Dr. Minnite credible and affords her opinions significant weight. In so doing, the Court finds that Defendants’ concerns with her report and testimony, specifically her definition of voter fraud, her reliance on only reported cases of voter fraud, and her admission that a state has a rational reason to guard against fraud, do not diminish the credibility of her opinions.

4. Dr. David Canon

Dr. David Canon is a professor and chair of the political science department at the University of Wisconsin, Madison. PX 106 at 2 (Canon Rep.); Tr. Trans. 4-5, ECF No. 101 (Canon). At trial, the Court admitted Dr. Canon as an expert in political science and the impact of election laws on turnout. Tr. Trans. 8, EOF No. 101. Most of Dr. Canon’s report is a critique of Defendants’ experts’ citations to an article that Dr. Canon coauthored.

B. Lay Witnesses

In addition to individual Plaintiffs Reverend Butcher and Carol Biehle, Plaintiffs called a number of Democratic political employees and volunteers: Gregory Beswick, Executive Director of the ODP; Nick Martin, Executive Director of the CCDP; Mark Owens, Chair of the MCDP; Joseph Longley, a former Democratic campaign worker; Terri Taylor, a volunteer for the Democratic Party; Rachel Bowman, a field organizer for President Barack Obama’s reelection campaign; Matthew Caffrey, 2009-2011 President of the College Democrats of The Ohio State University and paid worker for President Obama’s campaign in 2012; and Andrew Kohn, a paid worker for the Obama for America 2008 campaign. Tr. Trans. 85, 108, ECF No. 101 (Owens and Beswick); Tr. Trans. 5, 69-70, 200, ECF No. 97 (Martin, Longley, Taylor); Tr. Trans. 125, 150, 157-58,166, ECF No. 96 (Caffrey and Kohn); Tr. Trans. 10, ECF No. 98 (Bowman).

Plaintiffs ’ called two Democratic politicians: former Ohio Senator Nina Turner and Cleveland City Council member Phyllis Cleveland. Tr. Trans. 43, ECF No. 96 (Turner); Tr. Trans. 76, ECF No. 102 (Cleveland).

Plaintiffs also, called five Democratic board officials: Brad Cromes, former Deputy Director of the Portage County BOE; Timothy Burke, Chair of the Hamilton County BOE and Democratic Party; William Anthony, Director of the Franklin County BOE; Eben McNair, who is a member of the Cuyahoga County BOE and holds various positions in the CCDP; and Anthony Perlatti, Deputy Director of the Cuyahoga County BOE. Tr. Trans. 4-5, ECF No. 103 (Cromes); Tr. Trans. Í52, ECF No. 100 (Burke); Tr. Trans. 196, ECF No. 96 (Anthony); Tr. Trans. 4-5, ECF No. 100 (McNair); Tr. Trans. 217, ECF No. 97 (Perlatti).

IV. Defendants’ Witnesses

A. Expert Witnesses

1. Dr. M.V. (Trey) Hood

Dr. Hood is a tenured professor of Political Science and the Director of Graduate Studies of Political Science at the University of Georgia. Tr. Trans. 5, ECF' No: 99 (Hood). His research is concentrated in American politics and policy, specifically election administration, southern politics, voting behavior, and racial and ethnic politics. Id. In the past four years, Dr. Hood has offered expert testimony in nine cases, at least eight of which were on behalf of state defendants. DX 15 at 1; Tr. Trans. 170-71, ECF No. 99 (Hood).

At trial, the Court admitted Dr. Hood as an expert in political science, public policy related to election laws, election administration, voter fraud, and voter behavior. Tr. Trans. 12, ECF No. 99. He authored an initial report in which he discusses changes to Ohio’s EIP voting procedures, the provision of DRE machines, the administration of multi-precinct voting locations, and the changes to administrative procedures regarding provisional and absentee ballots. See DX 15 at 2. He also authored a rebuttal report in response to Dr. Timberlake’s initial report. DX 18.

Dr. Hood concluded that the challenged provisions would not deny African Americans equal opportunity to participate in the political process and/or were supported by legitimate administrative concerns. DX 15 at 40-42 (Hood Rep.); DX 18 at 17 (Hood Reb.). Much of Dr. Hood’s report is a summary or restatement of the declarations of elections officials and his opinions based on those declarations. The Court affords those opinions little weight for the following reasons: the declarants were selected by defense counsel; Dr. Hood never personally questioned the declarants or developed the questions asked of them; he did not conduct any follow-up interviews with the declarants or confirm the declarations with hard data; and while the declarations are sworn statements, they were prepared for purposes of litigation. See Tr. Trans. 118-22, ECF No. 99 (Hood).

2. Dr. Nolan McCarty

Dr. Nolan McCarty is a professor of politics and public affairs at Princeton University, and his focus area is “American politics doing quantitative work on legislative and electoral behavior.” Tr. Trans. 27-28, ECF No. 98 (McCarty). He was an expert witness on behalf of defendants in N.A.A.C.P. v. Husted, where he examined whether there was a change in voting behavior that could be attributed to the 2012 change in Ohio election laws. Id. at 32. At trial in this case, the Court admitted Dr. McCarty as an expert. Id. at 31.

Dr. McCarty authored a rebuttal report primarily criticizing Dr. Timberlake’s binning methodology and evaluation of the 2008 and 2012 elections and offering his own analysis of the effect of the elimination of Golden Week. DX 20.

To evaluate the actual impact of the elimination of Golden Week, Dr. McCarty compared the 2010 midterm election when the challenged provisions were not in place to the 2014 midterm general election when they were in place. DX 20 at 3 (McCarty Reb.); Tr. Trans. 113-17, ECF No. 98 (McCarty). He concluded that the challenged provisions did not impact participation overall between 2010 and 2014, opining that African American EIP voters are highly engaged voters that would not be adversely affected by the elimination of Golden Week. Tr. Trans. 60, 65, 71-73, ECF No. 98 (McCarty); DX 20 at 9-14 (McCarty Reb.).

To address the lack of data on the race of Ohio’s voters, Dr. McCarty surmised each voter’s race based on his or her surname and the racial composition of the census tract in which he or she resides. DX 20 at 6-8 (McCarty Reb). He used 2000 census data on the distribution of surnames by race to compute the probability that an individual with a particular surname identified as African American in the census, used the 2010 census tract files to estimate the probability of living in each of Ohio’s census tracts conditional on identifying as African American, and then computed the probability that a respondent with a particular surname who lives in a particular tract would identify as African American. Id. at 6. Dr. McCarty was provided with a geocoded voter file that had already matched the voter’s location to a census tract, and he engaged in the racial-imputation methodology. Tr. Trans. 56, ECF No. 98 (McCarty), According to Dr. McCarty, this methodology is generally accepted in the field of political science and has been used substantially over the past ten years. Tr. Trans. 57, ECF No. 98 (McCarty); see also id. at 93-94 (McCarty re-ran the analysis using different probability thresholds and found no significant change in the results).

Dr. McCarty chose to use census tracts in part because of his concerns about the accuracy of the census block assignments, as they were five years old, and, given that they are so small, the populations of census blocks can change fairly dramatically over that period of time. Tr. Trans. 104-08, ECF No, 97 (McCarty). He felt “very confident” that had he conducted the analysis using census blocks, the thrust of his conclusions would not change. Tr. Trans. 157-58, ECF No. 98 (McCarty). Dr, McCarty’s use of census tracts instead of census blocks as part of this method nevertheless calls into question the degree of certainty in determining a voter’s race, as census blocks are smaller and much more racially homogenous than census tracts. See id. at 102-12 (McCarty). Additionally, Dr. McCarty conceded that the number of African Americans that he coded was smaller than the percentage of African Americans in the VAP because he was intentionally conservative in his assessment of who is an African American. Id. at 97.

The Court finds that Dr. McCarty’s surname methodology and use of census tracts rather than census blocks diminishes somewhat the weight of his analysis of 2010 and 2014 voter turnout. The import of his individual level analyses is further diminished by the fact that they examine midterm elections, which generally produce significantly lower turn out than presidential elections. Furthermore, his comparisons of aggregate rates of early voting across 2010 and 2014 are affected by his failure to account for individuals who registered between 2010 and 2014. See id. at 88, 151 (in his analysis of 2010, unregistered voters were treated as registered voters who did not vote, thereby driving down the 2010 turnout rate). Additionally, Dr. McCarty’s failure to compare the ratios of usage of Golden Week between African Americans and whites limits the import of his opinions in determining whether African Americans will be disproportionately affected by the elimination of Golden Week.

3. Sean Trende

Sean Trende holds a B.A. in history and political science, an M.A. in political science, and a J.D., and he has been studying and following United States elections for almost twenty years. Trende Deck ¶¶ 6-9, ECF No. 76-3. He has been a Senior Elections analyst at RealClearPolitics, a political website, since 2009 and a Senior Columnist for Crystal Ball since January 2014. Id. ¶¶ 10, 13; Tr. Trans. 42, ECF No. 103 (Trende). After hearing Trende’s qualifications at trial, the Court orally admitted him as an expert, over Plaintiffs’ objection, in the fields of campaigns and elections, voter behavior, voter turnout, demographic trends, and political history. Tr. Trans. 49, ECF No. 103 (Trende).

Trende authored an initial report in which he places the challenged provisions in a national context and examines the existence of a causal link between the challenged provisions and any anticipated changes in African American, as compared to white, voter participation. DX 14; Tr. Trans. 49-50, ECF No. 103 (Trende). He also authored a rebuttal report responding to Dr. Timberlake’s initial report. DX 17. As explained in greater detail in the Court’s Order on Plaintiffs’ motion to exclude Trende as an expert, ECF No. 115, much of Trende’s report is irrelevant to the Court’s analysis.

4. Dr. Theodore Allen

Dr. Theodore Allen is a tenured associate professor at The Ohio State University, teaching in the area of integrated systems engineering. Tr. Trans. 114-15, ECF No. 102 (Allen). At trial, the Court admitted Dr. Allen as an expert in the field of integrated systems engineering and waiting-line analysis, specifically in elections. Id. at 118. Dr. Allen authored an initial report in which he used queuing theory to evaluate the impact of opening multiple EIP voting locations per county and the merits of S.B. 200’s new DRE machine formula. DX 16 (Allen Rep.). He also authored a rebuttal report responding to Dr. Yang’s initial report. DX 19.

Dr. Allen opined, inter alia, that splitting early voting resources among multiple EIP voting locations would have caused waiting lines to significantly increase in 2012, and therefore, using multiple EIP voting locations would not, in practice, provide a better voting experience to Ohioans. DX 16 at ¶ 29 (Allen Rep.). The Court finds that Dr. Allen’s opinions regarding waiting lines resulting from opening multiple voting locations are entitled to little to moderate weight because his use of queuing analysis, specifically the “M/M/c” formula , is questionable. See DX 114 at 1-3 (Yang Reb.) (identifying three assumptions that the “M/M/c” formula relies on that do not apply , to voting queues); Tr. Trans. 168-69, ECF No. 102 (Allen).. (confirming that discrete event simulation can accommodate a much broader set of assumptions than the queuing model he used and conceding that if he had a lot of time and someone to check his work, discrete event simulation would be preferable to queuing theory in conducting the type of analysis in his report); see also id. at 172, 174, 178.

B. Lay Witnesses

Defendants called four lay witnesses: Matthew Daraschroder, Assistant Secretary of State and Chief of Staff to the Secretary; Sherry Poland, Director of the Hamilton County BOE; Timothy Ward, Director of the Madison County BOE; and Mark Munroe, Chair of the Mahoning County BOE. Tr. Trans. 48, ECF No. 104 (Damschroder); Id. at 9 (Poland); Tr. Trans. 223, ECF No. 103 (Ward); Tr. Trans. 94, ECF No. 102 (Munroe).

V. Ohio’s Relevant History of Election Administration and Reform

The-2004 general election in Ohio saw several election administration problems, including extremely long lines at the polls. See, e.g., Tr. Trans. 199, ECF No. 96 (Anthony); N.A.A.C.P. v. Husted, 768 F.3d at 530-31. In response, Ohio created no-excuse absentee voting and provided an early-voting period during which voters could vote by mail or EIP. Ohio Rev. Code § 3509.02; DX 14E (Directive 2014-18); N.A.A.C.P. v. Rusted, 768 F.3d at 531 (discussing Substitute House Bill 234).

After the 2005 reforms, BOEs in Ohio’s three largest counties encouraged absentee voting by mail by mailing unsolicited absentee ballot applications and, in some cases, prepaying postage for return mailings. See Tr. Trans. 225-27, ECF No. 96 (Anthony); Tr. Trans. 233, ECF No. 97 (Perlatti); Tr. Trans. 172-73, ECF No. 100 (Burke). Thereafter, a large number of voters took advantage of early voting. PX 109 at 56, Table 6 (Timberlake Rep.).

Nevertheless, voters in Ohio’s largest counties still waited in significantly long lines to vote early and on Election Day in 2008 and 2012. Tr. Trans. 205-09, 227-28, ECF No. 96 (Anthony); id. at 57-59 (Turner); Tr. Trans. 143-44, ECF No. 101 (Beswick); Tr. Trans. 229-30, ECF No. 97 (Perlatti); id. at 45-46 (Martin); id. at 207-09 (Taylor); id. at 79 (Longley); Tr. Trans. 16-17, 20, ECF No. 100 (McNair); id. at 100 (Burke); Tr. Trans. 83, ECF No. 102 (Cleveland); Tr. Trans. 23-24, ECF No. 98 (Bowman).

Following the 2012 election, t]ie General Assembly enacted S.B. 238, S.B. 200, S.B. 205, and S.B. 216, all of which are challenged in the instant suit.

In 2014, Ohio organizations challenged S.B. 238’s elimination of Goldep Week, as well as certain early voting directives, in Ohio State Conference of N.A.A.C.P. v. Husted, 43 F.Supp.3d 808 (S.D.Ohio 2014). The parties ultimately reached a settlement in which the State agreed, inter alia, to provide EIP voting on the final two Saturdays and Sundays before presidential general elections and evening EIP voting hours until 7 p.m. during the final week before those elections. DX 14K at 4. Golden Week was not reinstated, however.

VI. Voting Opportunities Currently Available to Ohio Voters

Ohio voters have several methods by which to vote. Voters may vote in person on Election Day between 6:30 a.m. and 7:30 p.m. Ohio Rev. Code § 3501.32(A). Ohio also allows no-excuse absentee in-person voting before Election Day. For the 2016 general election, Ohio currently will have twenty-three days of EIP voting spread out over four weeks, which includes two Saturdays, two Sundays, and ten days where voting is permitted until either 6:00 p.m. or 7:00 p.m. DX 14J (2016 voting calendar). The period totals 207 hours of EIP voting. DX 14 at ¶ 92 (Trende Rep.). Additionally, Ohio allows no-excuse absentee voting by mail. Voters may request an absentee ballot application and mail it to the BOE, return it in person to the BOE, or have a family member return it to the BOE. Ohio Rev. Code § 3509.05(A).

VII. Preliminary Legal Issues

Before turning to the merits of Plaintiffs’ claims, the Court first addresses several legal issues raised by the parties.

A. Standing

“Article III of the Constitution limits federal courts’ jurisdiction to certain ‘Cases’ and ‘Controversies.’” Clapper v. Amnesty Int’l USA, — U.S. -, 133 S.Ct. 1138, 1146, 185 L.Ed.2d 264 (2013). “One element of the case-or-controversy requirement is that plaintiffs must establish that they have standing to sue.” Id. (internal quotation marks and citations omitted).

Article III standing requires: (1) an injury in fact, (2) fairly traceable to the defendant’s conduct, (3) that is likely re-dressable by a favorable ruling. Sandusky Cnty. Democratic Party v. Blackwell, 387 F.3d 565, 573 (6th Cir.2004) (citations omitted). Each element must be proven with the requisite “degree of evidence required at the successive stage of the litigation.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). “The party invoking federal jurisdiction bears the burden of establishing these [standing] elements.” Id.

Under certain circumstances, an organization may have standing to sue on behalf of its members (representational standing). Sandusky Cnty. Democratic Party, 387 F.3d at 574. An organization may also have standing to assert an injury to itself where it satisfies the Article III standing requirements (organizational standing). See Am. Canoe Ass’n, Inc. v. City of Louisa Water & Sewer Comm’n, 389 F.3d 536, 544 (6th Cir.2004).

Here, ODP has, established representational standing to bring suit on behalf of its members.

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, the- interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. The individual participation of an organization’s members is hot normally necessary when an association seeks prospective or injunctive relief for its members.

Sandusky Cnty. Democratic Party, 387 F.3d at 574 (internal quotation marks and citations omitted).

ODP’s claimed key constituencies include African Americans. See Tr. Trans. 31-32, ECF No. 97 (Martin); Tr. Trans. 87, ECF No. 101 (Owens); Id. at 113-14 (Be-swick); see also PX 109 at 39-41 (Timber-lake Rep.) (opining African Americans in Ohio consistently vote overwhelmingly for Democrats). Although ODP did not adduce evidence of the racial breakdown of its membership, the Court cannot ignore the likelihood- that at least some of, ODP’s members are African American. These members would ’ have standing to sue in their own right. First, Plaintiffs have presented evidence of an injury in fact (a real and imminent burden on the right to vote) traceable to the challenged laws that would be redressable by a finding that the laws violate the United States Constitution and/or the VRA and the granting of associated injunctive relief. See Sandusky Cnty. Democratic Party, 387 F.3d at 574. Second, the interest in the right to vote is germane to the purpose of the ODP, who engages in GOTV efforts targeted towards its members and constituents in an effort to successfully elect Democratic candidates. See Tr. Trans. 117-18, 127-28, ECF No. 101 (Beswick); id. at 136 (In 2016, ODP intends to engage in GOTV voter-education efforts with respect to the election law changes that occurred in 2014.). Last, neither the, claims asserted nor the injunctive relief requested requires the participation of individual members in the lawsuit.

To the extent that ODP cannot establish representational standing for failure to either identify at least one specific member who will be injured by each of the challenged provisions or provide evidence .that all of its members would be injured, see Summers v. Earth Island Inst., 55 U.S. (14 How.) 488, 497-98, 14 L.Ed. 510 (2009), the Court finds that ODP nevertheless has organizational standing.

ODP has established an injury in fact, as the record reflects that: (1) the challenged provisions will make it more difficult for its members and constituents to vote, which hinders ODP’s mission of electing its candidates, and (2) the challenged provisions will force ODP to divert resources from ensuring their members and constituents vote to counteracting the negative effects of the challenged provisions. See, e.g., Havens Realty Corp. v. Coleman, 455 U.S. 363, 378, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) (a drain on an organization’s resources constitutes a concrete and demonstrable injury); Miami Valley Fair Hous. Ctr., Inc. v. Connor Grp., 725 F.3d 571, 576-77 (6th Cir.2013) (same); Common Cause/Georgia v. Billups, 554 F.3d 1340, 1350-51 (11th Cir.2009) (N.A.A.C.P. established injury where evidence showed it would divert resources from its regular activities to educate and assist voters in complying with a new photo identification voting requirement); Florida State Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1160-66 (11th Cir.2008) (organization established actual and imminent injury); Crawford v. Marion Cnty. Election Bd., 472 F.3d 949, 951 (7th Cir.2007) (same), aff'd, Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 189 n. 7, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008); Tr. Trans. 117-18, 127-30, 136-37, 142, 145-48, ECF No. 101 (Beswick). This injury is caused by the challenged provisions and would be re-dressable by an injunction enjoining the provisions’ enforcement.

Having found that ODP has representational and, alternatively, organizational standing, the Court need not address whether the remaining plaintiffs have standing. See Am. Civil Liberties Union of Kentucky v. Grayson Cnty., Ky., 591 F.3d 837, 845 (6th Cir.2010) (citing cases) (“The presence of one party with standing is sufficient.”); Crawford, 472 F.3d at 951 (only one plaintiff with standing is required when only injunctive relief is sought), aff'd, Crawford, 553 U.S. at 189 n. 7, 128 S.Ct. 1610. The Court also need not determine whether Plaintiff Carole Biehle has standing to assert her claim regarding the consolidation of poll books because, as explained in greater detail herein, that claim is moot.

B. Federalism, Anti-Commandeering, Constitutional Avoidance, Judicial Restraint, and Laches

Having reviewed the briefing and relevant authority, the Court rejects Defendants’ argument that Plaintiffs’ claims are precluded by the doctrines of federalism, anti-commandeering, constitutional avoidance, judicial restraint, and/or laches.

C. Effect of N.A.A.C.P. v. Husted

As mentioned above, this is not the first time that S.B. 238 has been challenged. S.B. 238’s elimination of Golden Week, as well as certain early voting directives, were litigated in 2014 as part of Ohio State Conference of N.A.A.C.P. v. Husted, 43 F.Supp.3d 808 (S.D.Ohio 2014) (“N.A.A.C.P. v. Husted I”). In that case, another judge of this Court declared S.B. 238 unconstitutional and in violation of § 2 of the VRA and granted a preliminary injunction enjoining its enforcement.

The United States Court of Appeals for the Sixth Circuit affirmed the district court’s decision in Ohio State Conference of N.A.A.C.P. v. Husted, 768 F.3d 524 (6th Cir.2014) (“N.A.A.C.P. v. Husted II”) The Sixth Circuit later vacated its decision, however, after the United States Supreme Court stayed the decision pending a petition for writ of certiorari. N.A.A.C.P. v. Husted, No. 14-3877, 2014 WL 10384647, at *1 (6th Cir. Oct. 1, 2014). In so doing, the Sixth Circuit noted that the preliminary injunction that was the subject of the appeal was limited to the 2014 election, which no longer had any effect due to the Supreme Court’s stay. Id. The parties settled.

Plaintiffs argue the Court should give persuasive, if not preclusive, effect to the district court’s decision and the Sixth Circuit’s affirmance thereof. Defendants argue that, because the Sixth Circuit’s opinion was later vacated, it is not entitled to preclusive effect.

Although the Court finds that the Sixth Circuit’s vacated opinion in N.A.A.C.P. v. Husted II is not binding, see, e.g., Dodrill v. Ludt, 764 F.2d 442 (6th Cir.1985), Fleet Aerospace Corp. v. Holderman, 848 F.2d 720, 722 (6th Cir.1988), the Court is free to find the reasoning therein persuasive. See Mattei v. Mattei, 126 F.3d 794, 801 n. 6 (6th Cir.1997) (finding the reasoning in a vacated and unpublished decision nonetheless persuasive); Barrett v. Harrington, 130 F.3d 246, 258 n. 18 (6th Cir.1997) (“Because this Court only looks to the case as persuasive authority, it is irrelevant that the case has been vacated _”). Accordingly, the Court will give persuasive effect to the Sixth Circuit’s vacated opinion as it sees fit, keeping in mind that the Sixth Circuit’s opinion was vacated for reasons unrelated to the merits.

Merits

The Court now turns to the merits of Plaintiffs’ claims. Plaintiffs argue that the challenged provisions violate: (1) their rights under the First and Fourteenth Amendments to the United States Constitution pursuant to Anderson/Burdick, (2) Section 2 of the VRA, (3) the Fourth and Fifteenth Amendments to the United States Constitution under an intentional discrimination theory, (4) their rights under the First and Fourteenth Amendments to the United States Constitution under a partisan fencing theory; (5) Section 1971 of the Civil Rights Act of 1964, (6) their procedural due process rights under the Fourteenth Amendment to the United States Constitution, and (7) their equal protection rights under the Fourteenth Amendment to the United States Constitution pursuant to Bush v. Gore. Plaintiffs seek, inter alia, a declaration that the challenged provisions violate the First, Fourteenth, and Fifteenth Amendments to the United States Constitution, the VRA, and the CRA and an injunction enjoining Defendants from enforcing or giving any effect to the challenged provisions.

VIII. Equal Protection (Anderson/Bur-dick)

Plaintiffs claim the challenged provisions violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by imposing burdens on the voting rights of African Americans that outweigh the interests furthered by the provisions. They bring their claim under 42 U.S.C. § 1983.

Voting is a fundamental right, and “[o]ther rights, even the most basic, are illusory if the right to vote is undermined.” Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964). “The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise.’ ” League of Women Voters v. Brunner, 548 F.3d 463, 477 (6th Cir.2008) (quoting Bush v. Gore, 531 U.S. 98, 104, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000)). “ ‘[Hjaving once granted the right to vote on equal terms’ — such as expanding early voting opportunities — ‘the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another’ — for example, by making it substantially harder for certain groups to vote than others.” N.A.A.C.P. v. Husted II, 768 F.3d at 542 n. 4 (quoting Bush v. Gore, 531 U.S. at 104-05, 121 S.Ct. 525).

“The Equal Protection Clause applies when a state either classifies voters in disparate ways, or places restrictions on the right to vote.” Obama for Am. v. Husted, 697 F.3d 423, 428 (6th Cir.2012) (internal citations omitted). “At the same time, the Constitution vests states with the authority to prescribe “ ‘[t]he Times, Places and Manner of holding Elections for Senators and Representatives.’ ” NE OH Coalition for• the Homeless v. Husted, 696 F.3d 580, 592 (6th Cir.2012) (quoting U.S. Const. Art. I, § 4, cl. 1). In the face of an equal protection challenge, the Court balances these competing interests, considering the character of the state action and the nature of the burden it places on voters in setting the standard of review to apply. “While a rational basis standard applies to state regulations that do not burden the fundaméntal right to vote, strict scrutiny applies when a state’s restriction imposes ‘severe’ burdens.” Id. (citing Obama for Am., 697 F.3d at 428). The Court applies the flexible Anderson/Burdick balancing test to most eases falling in-between. Id. (citations omitted). “Although Anderson and Burdick were both ballot-access cases, the Supreme Court has confirmed their vitality in a much broader range of voting rights contexts.” Obama for Am., 697 F.3d at 429 (internal citation omitted).

Under the Anderson/Burdick test, A court considering a challenge to a state election law must weigh “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate” against “the precise interests put forward by the State as justifications' for the burden imposed by its rule,” taking into consideration “the extent to which those interests make it necessary to burden the plaintiffs’ rights.”

Burdick v. Takushi, 504 U.S. 428, 434, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) (quoting Anderson v. Calebrezze, 460 U.S. 780, 789, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983)). “There is no ‘litmus test’ to separate valid from invalid voting regulations; courts must weigh the burden on voters against the state’s asserted justifications and ‘make the ‘hard judgment’ that our adversary system demands.’” Obama for Am., 697 F.3d at 429 (quoting Crawford, 553 U.S. at 190, 128 S.Ct. 1610 (Stevens, J., announcing the judgment of the Court)). “However slight that burden may appear. ... it must be justified by relevant and legitimate state interests.‘sufficiently weighty to justify the limitation.’ ” Crawford, 553 U.S. at 191, 128 S.Ct. 1610 (citation omitted); Obama for Am., 697 F.3d at 433.

Notably, “how Ohio’s early-voting system compares to that of other states is not relevant under the Andersow-Burdick balancing test.” N.A.A.C.P. v. Husted II, 768 F.3d at 546.

In addressing Plaintiffs’ equal protection claim with respect to each challenged provision, the Court will describe, the relevant provision, evaluate the extent of the burden it imposes, if any, and apply the appropriate standard to determine whether the provision satisfies equal protection despite any imposed burden.

A. S.B. 238: Elimination of Golden Week

Plaintiffs first challenge S.B. 238’s elimination of Golden Week.

In 2005, the Ohio General Assembly passed Substitute House Bill 234- (“H.B. 234”) in an effort to remedy the manifold problems experienced during the 2004 election. H.B. 234 instituted “no fault” early voting, and BOEs were required to make absentee ballots available no later than thirty-five days before the election. Ohio Rev. Code § 3509.01(B)(2) (2014) (as amended Feb. 25, 2014). As Ohio law requires voters to be registered at least thirty days prior to an election, voters in Ohio had a period during which they could both register and vote on the same day. See Ohio Rev. Code § 3503.01(A); DX 15 at 3, 15 (Hood Rep.). The opportunity to register and vote simultaneously is referred to as “same-day registration” (“SDR”), and the period during which voters were allowed to do so is referred to as “Golden Week.”

S.B. 238, effective in 2014, amended Ohio Revised Code § 3509.01(B) to make the first day of early voting, by mail and EIP, the day after the close of voter registration. Ohio Rev. Code § 3509.01(B)(2)-(3). In doing so, S.B. 238 eliminated Golden Week and reduced the number of available EIP voting days. See DX 15 at 3 (Hood Rep.). There will currently be three fewer days for EIP voting in the 2016 general election than there were in the 2012 general election, which included the Golden Week period. Compare DX 14H (2012 voting calendar: twenty-six days) with DX 14J (2016 voting calendar: twenty-three days).

For the following reasons, the Court finds that the elimination of Golden Week imposes a modest burden — which the Court defines as a more than minimal but less than significant burden — on the right to vote of African Americans and that the State’s justifications for enacting S.B. 238 fail to outweigh that burden. The Court’s analysis largely mirrors that of N.A.A.C.P. v. Husted I and N.A.A.C.P. v. Husted II. Recognizing that N.A.A.C.P. v. Husted II was decided in the context of a preliminary injunction, the Court specifically treats it as highly persuasive authority given that the decision was vacated for reasons unrelated to the merits.

1. Burden

The elimination of Golden Week imposes a modest burden on the right to vote of African Americans in two ways: (1) by reducing the overall EIP voting period, and (2) by eliminating the opportunity for SDR.

a. Reduction in the EIP Voting Period

The elimination of Golden Week burdens voters by reducing the overall period for EIP voting. The record reflects that over 60,000 people voted during Golden Week in 2008, and over 80,000 people voted during Golden Week in 2012. PX 109 at 51 (Tim-berlake Rep.); Tr. Trans. 108, ECF No. 97 (Timberlake). Individuals who would have voted during Golden Week in future elections must now vote on other days during the early voting period, vote absentee by mail, vote on Election Day, or not vote at all. See Tr. Trans. 180, ECF No. 98 (Yang); PX 113 at 12, 16 (Yang Rep.); Tr. Trans. 192, ECF No. 102 (Allen).

The elimination of the extra days for EIP voting provided by Golden Week will disproportionately burden African Americans, as expert and anecdotal evidence reflects that African Americans vote EIP, and specifically EIP during Golden Week, at a significantly higher rate than other voters. For example, individual level data for three of the largest counties in Ohio containing nearly two-fifths of Ohio’s minority population — Cuyahoga, Hamilton, and Mahoning — show that in 2008, 2010, 2012, and 2014, “the rate of EIP voting increases with respect to the percentage of African Americans in the census block.” PX 110 at 10 (Timberlake Reb.) (emphasis added). It also shows that in 2008 and 2012, “the voting rate [during Golden Week] gets bigger as the percentage of blacks in the block gets bigger, suggesting that blacks are more likely to use Golden Week EIP voting in those years.” Id. at 5-6 (emphasis added). To be sure, it is unknown whether the voters in those blocks are African American or white.

However, looking at homogenous and nearly homogenous black and white blocks, the same individual level data shows that usage rates of EIP voting were far higher among African Americans than among whites in 2008, 2010, 2012, and 2014. See PX 110 at 9-10 (Timberlake Reb.) (EIP voting rate in homogenous black blocks was 4.316 times higher than homogenous white blocks in 2008, 1.390 times higher in 2010, 4.4476 times higher in 2012, and 2.330 times higher in 2014, and similar rates were found for nearly homogenous black blocks versus nearly homogenous white blocks). Defendants’ expert admitted that the rate at which African Americans used EIP voting in 2010 and 2014 was slightly higher than the white rate. Tr. Trans. 76-77, ECF No. 98 (McCarty). The data also shows that the usage rates of Golden Week specifically were far higher among African Americans than among whites in both 2008 and 2012. PX 110 at 6 (Timberlake Reb.) (3.514 times higher in 2008 and 5,186 times higher in 2012 for homogenous black blocks; 4.100 times higher in 2008 and 5.584 times higher in 2012 for nearly homogenous black blocks). In other words, in 2008, for example, “the rate of voting early in person during golden week is three and a half times greater in homogeneous black blocks than homogeneous white blocks.” Tr. Trans. 128-29, ECF No. 97 (Timberlake).

Additionally, data from the Current Population Survey (“CPS”) indicates that “in 2008,19.9% of Ohio’s African American voters made use of EIP voting compared to only 6.2% of whitest,and that] [i]n 2012, 19.6% of blacks used EIP voting versus 8.9% of whites.” PX 109 at 54-55 (Timber-lake Rep.) (citing CPS Voting and Registration Supplement and Daniel A. Smith (2014), p. 31); Tr. Trans. 133, ECF No. 97 (Timberlake) (same).

These findings are corroborated by anecdotal evidence reflecting that African Americans are significantly more likely than whites in Ohio to utilize EIP voting, and specifically during Golden Week. See Tr. Trans. 5, 23-24, ECF No. 97 (Martin) (based on analysis conducted by either the ODP or CCDP, more than half of the ballots cast EIP in Cuyahoga county in 2008 were cast by African American or Hispanic voters; only one in five ballots were cast by African American or Hispanic voters by mail or on Election Day, and the numbers were very similar in 2012); Id. at 207-08, 210 (Taylor) (on three different occasions in 2012, Taylor observed that almost everybody in line at the Cuyahoga County early vote location was African American); Tr. Trans. 17, ECF No. 100 (McNair) (observed that EIP voting in Cuyahoga County was primarily used by African Americans); Tr. Trans. 222, 230, ECF No. 97 (Perlatti) (based on his observations, the majority of individuals in Cuy-ahoga County utilizing EIP voting, and Golden Week voting in 2012, are/were African American); Tr. Trans. 155-56, ECF No. 100 (Burke) (based on her observations, the racial makeup of voters using Golden Week in Hamilton County was overwhelmingly African American); Tr. Trans. 91-92, ECF No. 101 (Owens) (observed primarily African Americans using Golden Week in Montgomery County).

Moreover, to the extent the voters who would have voted during Golden Week choose to vote on other early voting days or on Election Day, that will likely result in longer lines at the polls, thereby increasing the burdens for those who must wait in- those lines and deterring voting. See PX 113 at 12-16 (Yang Rep.) (explaining simulation model indicating that if 5%, 16%, or 45% of the voters who would have voted early now vote on Election Day instead, wait times will increase even if BOEs do not reduce the number of DRE machines used); see also Tr. Trans. 192, ECF No. 102 (Allen) (“[I]n general, more people means expected longer lines.”). African Americans will disproportionately bear this burden, because, as explained infra, they have greater time and resource limitations that may prevent them from waiting in line on- Election Day and are less likely to vote absentee.

Based on this evidence, it is reasonable to conclude that the reduction in overall time to vote will burden the right to vote of African Americans, who use EIP voting significantly more than other voters. See N.A.A.C.P. I, 43 F.Supp.3d at 841 (making a similar finding); N.A.A.C.P. II, 768 F.3d at 539-42 (affirming the district court’s finding).

b. SDR

The elimination of Golden Week also eliminated the opportunity for SDR, a mechanism which the record reflects over 10,000 people used in each of the last two presidential elections. In the 2008 general election, .approximately 12,842 individuals used Golden Week to both register (including- both new and updated registrations) and vote on the same day. PX 109 at 51 (Timberlake Rep.); Tr. Trans. 108, ECF No. 97 (Timberlake). In the 2012 general election, approximately 14,253 individuals used Golden Week to both register and vote on the same day. PX 109 at 51 (Tim-berlake Rep.). Of these, 5,844 were new registrations, and 8,409 were updates to existing registrations. DX 15 at 7 (Hood Rep.). Of the 5,844 new registrations, 1,789 were in Ohio’s three largest urban counties. Id. at 8.

The opportunity for SDR during Golden Week alleviated the costs to voters of having to register and vote at separate times. Indeed, it may be more difficult for voters with time, resource, transportation, and childcare restraints to make two separate trips to register and vote, and Golden Week allowed individuals to do both at once. See PX 109 at 50 (Timberjake Rep.); Tr. Trans. 38-39, ECF No. 104 (Poland); Tr. Trans; 108-09, 112, ECF No. 96 (Butcher); Id. at 161-62 (Kohn); Tr. Trans. 33-36, ECF No. 97 (Martin); Tr. Trans. 120-21, ECF No. 101 (Beswick). The elimination of SDR means that voters must now register and vote at separate times, which increases the “cost of voting,” especially for socio-economically disadvantaged groups. See PX 109 at 50 (Timberlake Rep.); Tr. Trans. 195-96, ECF No. 97 (Timberlake).

Expert and anecdotal evidence in the record indicate that, unfortunately, African Americans in particular are more likely to be subject to economic, transportation, time, and childcare constraints that increase the cost of voting. Specifically, relative to whites, African Americans in Ohio are less likely to work in professional and managérial jobs; are more likely to work in service and sales jobs, including hourly wage jobs; have lower incomes; are nearly three times more likely to live in poverty; and are more than two and a half times more likely to live in a neighborhood in which more than 20% of the residents are in poverty. PX 109 at 19, 22-24, 31-32 (Timberlake Rep.); see also Tr. Trans. 46, ECF No. 96 (Turner) (describing the majority African-American Hough community as one of the poorest communities in Cleveland); Tr. Trans. 78, ECF No. 102 (Cleveland) (describing two neighborhoods in Cleveland with more than'95% African Americans as historically poor).

Further, African Americans in Ohio are generally more transient and rely more heavily on public transportation than whites. See PX 109 at 17-18 (Timberlake Rep.) (for the period between 2008 and 2012, white households are almost twice as likely as African American households to be homeowners, and African Americans are more likely than whites to have moved residences); Tr. Trans. 176-77, ECF No. 97 (same); PX 109 at 23 (Timberlake Rep.) (on average, African Americans have one fewer vehicle per household than whites in Ohio; over 20% of African Americans have no automobile available in the household compared