Before: GARLAND, Circuit Judge, and KOLLAR-KOTELLY and HUVELLE, District Judges.
Opinion for the Court filed PER CURIAM.
The State of Florida brings this action for declaratory relief under section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c. Section 5 prohibits the enforcement of any change in voting practices or procedures in certain states and other covered jurisdictions, including five of Florida's counties, unless and until the change is approved by the Attorney General of the United States or by a three-judge panel of the United States District Court for the District of Columbia. In this three-judge district court proceeding, Florida seeks a declaratory judgment that certain recent changes to its election laws "neither ha[ve] the purpose nor will have the effect of denying or abridging the right to vote on account of race or color" or membership in a language minority group. 42 U.S.C. § 1973c(a).
Florida amended its voting laws in 2011, making some 80 sets of changes from prior provisions. The State submitted the changes to the Attorney General for administrative approval, and the Attorney General precleared 76 of them. Florida then withdrew the remaining four sets of changes from its request for administrative preclearance, and instead filed a complaint seeking judicial preclearance of those changes. After the complaint was filed, Florida resubmitted one of the four changes (regarding the procedures for constitutional amendments proposed by initiative) to the Attorney General for administrative approval. Thereafter, the Attorney General precleared that change, and Florida voluntarily dismissed that count of its complaint. One week ago, Florida filed a motion to voluntarily withdraw another set of changes (regarding requirements for third-party voter registration organizations (TPROs)), and to inform the court that it had amended several of the TPRO changes for which it still seeks preclearance. Because this development requires a new round of briefing and review, we will address the remaining TPRO changes at a later date.
Two categories of voting changes will be addressed in this opinion. In brief, those changes would: (1) amend the available days and hours that Florida counties may use for early in-person voting, see Fla. Stat. § 101.657(d) (2011); and (2) amend the voting procedures for registered voters who move between Florida counties and seek to vote in their new county of residence ("inter-county movers"), see id. § 101.045. The parties have filed extensive submissions regarding the law applicable to our task of reviewing the voting changes for purposes of preclearance. As we discuss below, Florida's submission urges an unconventional reading of section 5, which we largely reject. The Attorney General, supported by more than two dozen individuals and organizations who were permitted to intervene as defendants in this action, proffers a more traditional reading, which we largely adopt.
The parties have also developed a voluminous evidentiary record, comprised of over 11,000 pages of legislative hearings, deposition transcripts, expert reports, and other exhibits.*fn1 The parties then filed proposed findings of fact and conclusions of law on the basis of that written record. The parties agreed that the record was sufficient for the court to reach a decision, and that live trial testimony was unnecessary. The court did, however, hear five hours of oral argument on all aspects of the statutory preclearance question. Thereafter, the court received supplemental briefing and submissions from the parties on several discrete questions of law and fact.
Upon consideration of the entire record, our conclusions may be summarized as follows. First, we conclude that we cannot, at this time, preclear Florida's early voting changes because the State has failed to satisfy its burden of proving that those changes will not have a retrogressive effect on minority voters. Specifically, the State has not proven that the changes will be nonretrogressive if the covered counties offer only the minimum number of early voting hours that they are required to offer under the new statute, which would constitute only half the hours required under the prior law. Following an approach approved by the Supreme Court, however, we also conclude that if Florida and the covered counties were to submit a preclearance plan that offered early voting for the maximum number of hours authorized by the new statute, which would be exactly the same number as under the prior law, and did so on a standard 7 a.m. to 7 p.m. schedule, it is likely that Florida would be able to satisfy its burden of proving that the overall effect of its early voting changes would be nonretrogressive. Second, we conclude that Florida has satisfied its burden of proving that the changes to the procedures for inter-county movers neither were enacted with a discriminatory purpose nor will have a retrogressive effect on minority voters, and that those changes are therefore entitled to preclearance.
The opinion that follows summarizes our findings of fact and sets forth our conclusions of law on the question of statutory preclearance.*fn2 The appendix to this opinion separately sets forth our findings of fact. See FED. R. CIV. P. 52.
I. Background and Procedural History
This court has been convened as a three-judge district court with jurisdiction to hear and determine this declaratory judgment action under section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c. See 28 U.S.C. § 1346(a)(2); id. §§ 2201, 2284. The Act was enacted to protect the fundamental rights guaranteed by the Fifteenth Amendment, and to "banish the blight of racial discrimination in voting." South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966). Section 5 requires covered states and political subdivisions to seek advance approval, or "preclearance," from the Attorney General or a three-judge district court before administering any new "voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting." 42 U.S.C. § 1973c(a). To obtain preclearance, a covered jurisdiction must show that its proposed voting change "neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title [proscribing voting restrictions based on membership in a language minority group]." Id.*fn3
Five of Florida's sixty-seven counties are subject to the preclearance requirements of section 5. They, along with a number of states and other local jurisdictions, were subjected to section 5 coverage by the 1975 amendments to the coverage formula set forth in section 4(b) of the Act. Section 4(b)'s coverage formula subjects jurisdictions to section 5 preclearance obligations based on a combination of the maintenance of a prohibited "test or device" and low voter turnout in certain elections.*fn4 The 1975 amendments expanded the definition of "test or device" to include "any practice or requirement by which any State or political subdivision provided," as of November 1, 1972, "any registration or voting notices, forms, instructions, assistance, or other materials or information relating to the electoral process, including ballots, only in the English language, where the Director of the Census determines that more than five per centum of the citizens of voting age residing in such State or political subdivision [we]re members of a single language minority." 42 U.S.C. § 1973b(f)(3). The statute defines "language minorities" to include "persons who are American Indian, Asian American, Alaskan Native or of Spanish heritage." Id. § 1973l(c)(3). As a result of these language minority amendments, five Florida counties -- Hillsborough, Monroe, Collier, Hendry, and Hardee -- became subject to coverage under section 5. See 28 C.F.R. Pt. 51, App.; see also 41 Fed. Reg. 34329 (Aug. 13, 1976); 40 Fed. Reg. 43746 (Sept. 23, 1975).
Although Florida itself is not a covered jurisdiction under section 5, it is well settled that "the Act's preclearance requirements apply to measures mandated by a non-covered State to the extent that these measures will effect a voting change in a covered county." Lopez v. Monterey Cnty., 525 U.S. 266, 269 (1999). Accordingly, to the extent that Florida seeks to administer any of its statewide voting changes in its five covered counties, those changes must be submitted for preclearance. Id. at 278; see 28 C.F.R. § 51.23(a). Moreover, for reasons explained in more detail below, see infra Part
II.A, it is clear that both of the electoral changes for which Florida seeks approval come within the purview of the Act, because they both involve changes to voting qualifications or prerequisites to voting, or "standard[s], practice[s], or procedure[s] with respect to voting." 42 U.S.C. § 1973c(a).*fn5 Indeed, although Florida has argued that certain formulations of the section 5 "effect" test do not apply to these changes and that the requirement that its statewide changes be submitted for preclearance is unconstitutional, the State does not dispute its statutory obligation under section 5 to submit the changes at issue here for either administrative or judicial preclearance. See  Fla.'s Proposed Findings of Fact & Conclusions of Law ("Fla. Br.");  Third Am. Compl. ("Fla. Compl.").
The voting changes that Florida has submitted for our preclearance review were included in an omnibus bill, Committee Substitute for Committee Substitute for House Bill 1355 ("HB 1355"), which made approximately 80 sets of changes to Florida's election procedures.*fn6 That bill moved through the Florida House and Senate over a period of several months in the spring of 2011, and was signed into law on May 19, 2011 by the Governor. See Fla. Laws, ch. 2011-40; see also Fla. Stat. §§ 101.045, 101.657(d) (2011) (codifying the particular voting changes at issue in this case). As we have indicated, Florida originally submitted HB 1355 in its entirety for administrative preclearance by the Department of Justice, and the vast majority of the changes in that law -- most of which were minor or ministerial in nature -- were precleared by the Attorney General on August 8, 2011. See A118 (Revised Jointly Stip. Facts ¶ 8).
In the meantime, however, Florida withdrew four sets of its voting changes from the administrative preclearance process. See A219 (Letter from Daniel Nordby, Gen. Counsel, Fla. Dep't of State (July 29, 2011)). Those four changes included the early voting and inter-county mover changes at issue before us in this opinion, along with changes imposing additional requirements on third-party voter registration organizations (TPROs) and amendments to the provisions governing the time frame during which signatures on citizen initiative petitions are valid (the "citizen initiative changes"). Id. After withdrawing those changes from administrative review, Florida then filed a complaint in this court seeking judicial preclearance of those four changes. See  Compl. Early in the litigation, Florida amended that complaint twice: once to assert claims -- which we will address in future proceedings -- challenging the constitutionality of the Voting Rights Act, see  First Am. Compl. ¶¶ 107-116; and once to include a request for judicial preclearance of amended state regulations implementing the TPRO changes, see  Second Am. Compl. ¶¶ 85-86 & Ex. B.
Over the following months, the parties conducted extensive discovery, and, after the discovery period closed on February 29, 2012, continued to take de bene esse depositions and submit declarations by their respective experts. By late May, the parties had submitted proposed conclusions of law and findings of fact. They then requested that we forego a live trial and decide the case on the basis of the written record alone. The court held five hours of oral argument on June 21, followed by multiple rounds of supplemental briefing on issues raised during the argument.
Since the filing of Florida's Second Amended Complaint,the scope of our required review has narrowed considerably. First, in March 2012 the United States informed this court that, after conducting discovery and reviewing the record, it had concluded that Florida had met its burden of demonstrating that the citizen initiative changes were neither enacted with a discriminatory purpose nor will have a retrogressive effect on minority voters. See  March 8, 2012 Mem. Order at 2-3. Accordingly, Florida re-submitted those changes for administrative preclearance, and on March 21, 2012, the Attorney General informed the State that no objection would be interposed. See  United States' Notice to the Court. The parties then filed a stipulation of dismissal as to Count Two of Florida's Second Amended Complaint, which dealt with those citizen initiative changes. See  Stip. of Dismissal.
Florida's stipulation of dismissal left us with only three statutory preclearance counts to review, dealing respectively with the TPRO, inter-county mover, and early voting amendments. But recent developments have again narrowed the issues before us. In particular, a federal district court in Florida issued a preliminary injunction on May 31, 2012 against many of the TPRO changes in HB 1355 and its implementing rule, finding that the plaintiffs in that case were likely to prevail on their First Amendment and National Voter Registration Act challenges to those changes. See League of Women Voters of Fla. v. Browning, -- F. Supp. 2d --, 2012 WL 1957793, at *10 (N.D. Fla. May 31, 2012). On June 12, Florida informed us that it would "no longer seek in this action to preclear the [TPRO] changes that the [district court in Florida] preliminarily enjoined."  Statement Regarding the Effect of the Recent Order in the N.D. Fla. at 2. Florida stated in that filing that it would "voluntarily withdraw the enjoined [TPRO] Changes from this judicial preclearance action," id. at 5, indicating that it was waiting for a clarification from the Florida district court before doing so, see id. at 3 n.2.
Several weeks passed without further word from the State. We convened a status conference on July 16 to determine whether Florida had made a decision regarding which TPRO provisions it intended to withdraw from this action, and which it would still seek to preclear. Florida advised that it had not yet made a final decision. Then, approximately one week ago, the State informed us that it had settled the TPRO litigation in Florida. See  Mem. of Points and Authorities in Support of Pl.'s Mot. for Leave to Amend the Compl. at 1. It filed a motion to amend its complaint in this case, seeking to remove from its request for preclearance those TPRO changes that the district court in Florida had enjoined, while keeping the remaining changes, some in a modified form. See id. at 4 n.1, 5. On August 13, Florida also advised the court that it would promptly submit the remaining, non-enjoined TPRO changes to the Department of Justice for administrative preclearance. On August 15, the court granted Florida's unopposed motion to amend its complaint to reflect that it no longer seeks preclearance for the enjoined changes.
The effect of this development has been to remove from our consideration the most controversial provisions of the TPRO amendments -- including a stringent 48-hour deadline for submission of completed voter registration applications, a requirement that registration agents sign a "sworn statement" listing the penalties for fraudulent voter registration, and a mandate that TPROs track and account for all registration forms provided to and received from their employees and volunteers, and then file monthly reports with the State reflecting those tallies. But Florida's recent filing also means that we must hold a new round of briefing on the TPRO changes that remain. We also must give the Department of Justice an opportunity to consider whether to preclear the remaining changes administratively. This process could take several more weeks, even as the covered counties seek to finalize their plans for the November election.
Accordingly, having previously bifurcated this case into a preclearance part and a constitutional part in order to expedite the decision on preclearance, see supra note 2, we now trifurcate it. This opinion will address only those matters fully before us -- the early voting and inter-county mover changes -- for which there is no reason for further delay, and for which the interests of judicial efficiency and finality counsel an expeditious resolution. Once the parties have had an opportunity to brief the TPRO changes for which Florida still seeks preclearance, and the Attorney General has made a determination regarding whether to preclear those changes administratively, we will address the remaining TPRO provisions if there are any. Thereafter, if our dispositions have not rendered a decision on Florida's constitutional challenge moot or otherwise unnecessary, we will hold oral argument on those issues.
C. Voting Changes at Issue
In their final form, the two sets of voting amendments at issue in this opinion make a number of changes to Florida's practices and procedures governing early voting and inter-county movers. We examine those changes in greater detail in the course of our analysis and discussion below. In brief, however, the amendments make the following changes from Florida's previous voting laws.
Before the passage of HB 1355, Florida's early voting law provided early in-person voting for a potential 14-day period, beginning on "the 15th day before an election and end[ing] on the 2nd day before the election." Fla. Stat. § 101.657(d) (2010). That prior law required each county to offer early voting for exactly 8 hours per day on weekdays and exactly 8 hours in the aggregate each weekend, yielding a total of 96 hours of early voting. Early voting sites were to "open no sooner than 7 a.m. and close no later than 7 p.m. on each applicable day," but within this constraint local supervisors of elections in each Florida county had the discretion to select the specific voting hours for each early voting day. Id. In Florida's five covered counties, local supervisors of elections chose a range of voting hours between 7 a.m. and 7 p.m. depending on whether it was a primary or general election and what voting site was involved. In addition, the prior law gave election supervisors discretion in choosing whether their 8 aggregate weekend early voting hours would fall on a Saturday, a Sunday, or both. See id. In each of Florida's five covered counties, local election supervisors exercised that discretion to offer 8 hours of early voting on each Saturday and none on either Sunday. This meant that in each of the five covered counties, only 12 of the available 14 days of early voting were actually used (Monday through Saturday of each of the two weeks before the election).
HB 1355 amends the number of days, the number of hours, the specific hours, and the weekend times that early voting may be offered in Florida. First, under the new law, the early voting period begins "on the 10th day before an election . . . and end[s] on the 3rd day before the election," for a total of only 8 days instead of the previous 12. Fla. Stat. § 101.657(d) (2011).
Second, the law now gives local election supervisors the discretion to determine the number of daily hours of early voting in their counties, subject to the constraint that "no less than 6 hours and no more than 12 hours" be offered on each of the 8 early voting days. Id. As a result, Florida's covered counties might still offer the same total hours of early voting (96 hours) that were required under the pre-2011 law, but only if their local election supervisors decide to offer the maximum 12 hours of early voting on each of the 8 days. If, on the other hand, a local supervisor chooses to offer the minimum number of hours (i.e., 6 hours per day), then the early voting period would last only 48 hours in total -- exactly half of the hours that were offered under the prior law.
Third, the new law also removes the requirement that voting take place between 7 a.m. and 7 p.m. each day. Instead, local supervisors of elections have the discretion to determine the specific hours of early voting in their counties, as long as they offer "no less than 6 hours and no more than 12 hours" each day. Id. In the event that local election supervisors offer the maximum 12 hours of early voting on a given day, then the early voting hours for that day would necessarily include hours that fall outside the standard 8-hour workday extending from 9 a.m. to 5 p.m. However, in the event election supervisors offer the minimum 6 hours of early voting on a given day, the 6-hour early voting day may be entirely within, entirely outside, or straddle the standard workday.
Fourth, the new early voting statute also mandates some additional weekend hours of early voting. In particular, the new early voting period runs from the Saturday two weekends before the election to the Saturday immediately before Election Day, see id., meaning that the early voting period under HB 1355 now requires three weekend days of early voting: two Saturdays and one Sunday. And as already explained, the new statute mandates anywhere from 6 to 12 early voting hours on each day. Id. Accordingly, if HB 1355 were implemented in the covered counties, it would result in at least 6 (and up to
12) hours of Sunday early voting that were never before offered in those counties. Moreover, election officials would also have the discretion to offer up to 36 total hours of weekend early voting (12 hours per day on each of 3 weekend days) -- for a net gain of 20 weekend early voting hours over the prior law, which offered exactly 16 weekend hours (8 hours in the aggregate on each of two weekends).
Under the pre-2011 statute governing inter-county movers, registered Florida voters who moved to a new county of residence without informing the relevant supervisor of elections could still update their addresses at the polls and then vote a regular ballot. Specifically, before the enactment of HB 1355, inter-county movers were simply required to complete an affidavit of change of address (or a new voter registration application), listing their new address of residence and affirming that they had not already voted in the precinct of their former residence. See Fla. Stat. § 101.045(2)(a), (c) (2010). After their eligibility to vote was verified, such voters were then permitted to cast a regular ballot, which would be canvassed and counted like all other ballots. Id. § 101.045(2)(d).
After the 2011 amendments, however, "an elector whose change of address is from outside the county may not change his or her legal residence at the polling place and vote a regular ballot." Fla. Stat. § 101.045(2)(b) (2011). Instead, such inter-county movers are now only "entitled to vote a provisional ballot." Id. The only exception is for active uniformed services voters and members of their families, who are still permitted to cast a regular ballot after affirming their inter-county change of address and having their eligibility verified. Id.
Once completed, provisional ballots cast by inter-county movers "shall be placed in a secrecy envelope and thereafter sealed in a provisional ballot envelope." Id. § 101.048(1). The provisional ballots will then be deposited in a ballot box and returned to election officials, whereupon the county canvassing board will examine the ballots to determine if the voters were eligible to vote at that precinct and had not already cast a ballot in the election. Id. § 101.048(2)(a). Florida law specifically provides that a provisional ballot "shall be counted unless the canvassing board determines by a preponderance of the evidence that the person was not entitled to vote." Id. (emphasis added); see also id. § 101.048(2)(b)(1).
Finally, as relevant here, the 2011 amendments to Florida's Election Code also make pre-election address changes easier for registered Florida voters. Under the pre-2011 law, inter-county address changes had to be completed "using a voter registration application signed by the elector." Fla. Stat. § 97.1031(2) (2010). Now, however, registered voters can notify the supervisor of elections of their change of address by "[s]ubmitting the change on a voter registration application or other signed, written notice," or by "[c]ontacting the supervisor of elections via telephone or electronic means." Fla. Stat. § 97.1031(1)(b) (2011).
Florida seeks judicial preclearance of each set of voting changes outlined above. To obtain preclearance under section 5, a covered jurisdiction must demonstrate that its proposed voting changes "neither ha[ve] the purpose nor will have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title [proscribing voting restrictions based on membership in a language minority group]." 42 U.S.C. § 1973c(a). The burden of proving by a preponderance of the evidence that the voting changes at issue neither have an impermissible purpose nor will have an impermissible effect rests on the plaintiff -- in this case, the State of Florida. Reno v. Bossier Parish Sch. Bd. ("Bossier Parish I"), 520 U.S. 471, 478 (1997); City of Rome v. United States, 446 U.S. 156, 184 n.18 (1980); Beer v. United States, 425 U.S. 130, 140-41 (1976); Georgia v. United States, 411 U.S. 526, 538 (1973); City of Port Arthur v. United States, 517 F. Supp. 987, 1011 (D.D.C. 1981), aff'd, 459 U.S. 159 (1982); City of Petersburg v. United States, 354 F. Supp. 1021, 1027 (D.D.C. 1972), summarily aff'd, 410 U.S. 962 (1973); see also Reno v. Bossier Parish Sch. Bd. ("Bossier Parish II"), 528 U.S. 320, 328 (2000), superseded by statute on other grounds, 42 U.S.C. § 1973c(c).
We consider each of Florida's proposed voting changes to determine whether the State has met that burden. Because any evidence relating to the retrogressive effects (or lack thereof) of the changes may inform our analysis of possible discriminatory purpose, see Vill. of Arlington Heights v. Metro. Housing Dev. Co., 429 U.S. 252, 266 (1977), we address the effect issue first. See City of Port Arthur, 517 F. Supp. at 1011.
We begin by setting forth the legal standards applicable to the effect prong of section 5. Thereafter, we will apply those standards to Florida's two proposed voting changes.
The test for assessing whether a given voting change will have "the effect of denying or abridging the right to vote on account of race[,] color," or membership in a language minority group, 42 U.S.C. § 1973c(a), has been stated in a relatively straightforward manner. In Beer, the Supreme Court held that, to be entitled to preclearance under the effect prong of section 5, a proposed change must not "lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise." 425 U.S. at 141; accord Bossier Parish I, 520 U.S. at 478. In other words, a voting change "has a prohibited 'effect' only if it is retrogressive," meaning that it "worsen[s] the position of minority voters" in comparison to the pre-existing voting standard, practice, or procedure. Bossier Parish II, 528 U.S. at 324.
By definition, this "so-called 'retrogression' analysis" requires us to "compar[e] the existing voting scheme" -- often known as the "benchmark" practice -- with the "scheme that would result from the proposed change." State of New York v. United States, 874 F. Supp. 394, 397 (D.D.C. 1994). "If the position of minority voters is no worse under the new scheme than it was under the old scheme," then the proposed change does not have an impermissibly retrogressive effect. Id. (citing City of Lockhart v. United States, 460 U.S. 125, 132-35 (1983)). If, on the other hand, the change would lead to a retrogression in the position of minority voters in the covered jurisdiction, then preclearance must be denied. Beer, 425 U.S. at 141.
Lurking in the background of this seemingly simple formulation, however, are a number of potential complications. The central problem for our purposes is that "[t]he Supreme Court has never comprehensively defined 'retrogression,' nor has it engaged in any detailed discussion of what constitutes the 'effective exercise of the electoral franchise' by minority voters." Georgia v. Ashcroft, 195 F. Supp. 2d 25, 74 (2002), vacated on other grounds, 539 U.S. 461 (2003). In particular, the Court has not specifically addressed how the retrogression test applies to "ballot access" laws (e.g., laws governing the procedures for voting and voter registration) such as the ones before us. Indeed, the case law interpreting the section 5 effect test deals primarily with so-called "second generation barriers . . . to prevent[ing] minority voters from fully participating in the electoral process," H.R. Rep. No. 109-478, at 2 (2006): for example, changes involving annexations, redistricting, or the creation or expansion of at-large electoral systems.*fn7 Despite -- or perhaps because of -- the Voting Rights Act's central concern with prohibiting practices and procedures that impede minority voters from casting a ballot, see, e.g., 42 U.S.C. § 1973b(a) (suspending all "test[s] or device[s]" in covered jurisdictions), there are no cases squarely addressing how the retrogression analysis should function in a ballot access case like this one.
Nonetheless, our examination of the statutory text and relevant lines of authority allows us to draw some conclusions about applying the section 5 effect test to this case. In brief, we conclude that a change that alters the procedures or circumstances governing voting and voter registration will result in retrogression if: (1) the individuals who will be affected by the change are disproportionately likely to be members of a protected minority group; and (2) the change imposes a burden material enough that it will likely cause some reasonable minority voters not to exercise the franchise. We emphasize that the two-part nature of this inquiry means that the retrogression test in ballot access cases is not solely one of "disparate impact," as Florida fears. See Fla. Br. 57. In other words, a change is not retrogressive simply because it deals with a method of voting or registration that minorities use more frequently, or even because it renders that method marginally more difficult or burdensome. Rather, to be retrogressive, a ballot access change must be sufficiently burdensome that it will likely cause some reasonable minority voters not to register to vote, not to go to the polls, or not to be able to cast an effective ballot once they get to the polls.
This inquiry is a "fact-intensive" one, and requires us to "carefully scrutinize the context in which the proposed voting changes will occur." Georgia v. Ashcroft, 195 F. Supp. 2d at 76. In so doing, we do not focus solely on the burdens imposed by a voting change, but rather must also take account of any off-setting, or "ameliorative," adjustments. See City of Richmond, 422 U.S. at 370-71; City of Petersburg, 354 F. Supp. at 1031. And in the context of this particular case, where only five of Florida's counties are subject to the requirements of section 5, we must look at the effects of the voting changes on minority voters in only those five covered counties. See Lopez, 525 U.S. at 284 ("Section 5, as we interpret it today, burdens state law only to the extent that that law affects voting in jurisdictions properly designated for coverage." (emphasis added)).
Finally, as we have said, Florida bears the burden of proving that the voting changes at issue are non-retrogressive. See, e.g., City of Rome, 446 U.S. at 184 n.18; Beer,425 U.S. at 140-41.
In settling upon the retrogression standard that we have outlined above, we reject Florida's novel arguments concerning section 5 -- arguments that question the traditional understanding of the section's effect test or that would read the test out of the statute altogether. We discuss those arguments in the following paragraphs.
1. Florida's most far-reaching contention is that the effect prong of section 5 does not apply to this case at all. This, the State says, is because the 2006 amendments to the Voting Rights Act made the Act inapplicable to changes in ballot access laws. As relevant here, the 2006 amendments added two sections to the Act. See Pub. L. No. 109-246, 120 Stat. 577 (2006). Section 5(b) clarified that a voting change "denies or abridges the right to vote within the meaning of section 5(a) if it "will have the effect of diminishing the ability of any citizens of the United States on account of race or color [or membership in a language minority group] . . . to elect their preferred candidates of choice." 42 U.S.C. § 1973c(b). And section 5(d) further explained that the purpose of section 5(b) "is to protect the ability of [minority] citizens to elect their preferred candidates of choice." Id. § 1973c(d).
Florida maintains that these amendments made "ability to elect" the only relevant consideration under the section 5 effect test. And it further argues that, when Congress used the phrase "ability to elect," it meant the ability of minorities as a group to elect candidates of the group's choice. In Florida's view, only voting changes that dilute a minority group's vote -- like redistricting or annexation -- can normally impact a minority group's ability to elect, whereas ballot access measures -- like those at issue here --normally cannot. Accordingly, Florida concludes, section 5's effect test can play no role in this case. See Fla. Br. 49, 51-53.
Contrary to Florida's view, however, the 2006 amendments did not inoculate covered jurisdictions from section 5 review when making changes in ballot access rules. Election law changes dealing with ballot access have long been regarded as the kinds of changes that are at the core of the section 5 preclearance requirement. See Nw. Austin Mun. Utility Dist. No. One v. Holder, 557 U.S. 193, 198 (2009) ("We have interpreted the requirements of § 5 to apply not only to the ballot-access rights guaranteed by § 4, but to drawing district lines as well." (emphasis added)).*fn8 Indeed, the Voting Rights Act itself defines "voting" to include "all action necessary to make a vote effective . . . , including, but not limited to, registration, . . . casting a ballot, and having such ballot counted properly." 42 U.S.C. § 1973l(c)(1).*fn9 The voting changes at issue in this opinion -- which impose additional restrictions on early voting and polling place procedures for inter-county movers -- fall squarely within that expansive definition of voting rights. Moreover, although most of section 5 case law involves challenges to redistricting, annexation, and other potential forms of vote dilution, it is plain that laws that make it difficult for minority voters to register to vote or cast a ballot can just as readily -- if not more readily -- lead to a "retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise." Beer, 425 U.S. at 141.
The 2006 amendments to the Voting Rights Act did nothing to alter that basic framework. As relevant here, those amendments simply clarify that retrogressive effects include any diminution in minority voters' ability to elect their candidates of choice. The language added to section 5(b), for example, provides:
Any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting that has the purpose of or will have the effect of diminishing the ability of any citizens of the United States on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, to elect their preferred candidates of choice denies or abridges the right to vote within the meaning of subsection (a) of this section.
42 U.S.C. § 1973c(b) (emphasis added). That language merely supplements rather than supplants the broad requirement imposed on covered jurisdictions -- in the original and still extant section 5(a) -- to demonstrate that their voting changes will not "have the effect of denying or abridging the right to vote on account of race or color" or membership in a language minority group. Id. § 1973c(a). Likewise, the language added to section 5(d) states: "The purpose of subsection (b) of this section is to protect the ability of [minority] citizens to elect their preferred candidates of choice." Id. § 1973c(d). But that provision refers back only to subsection (b); it does not affect or construe subsection 5(a), nor does it purport to make "ability to elect" the only relevant test for section 5 purposes.*fn10
Furthermore, an examination of the legislative history of the 2006 reauthorization confirms that the purpose behind adding the "ability to elect" language in 42 U.S.C. § 1973c(b) and (d) was simply to legislatively overrule a particular interpretation of the effect prong offered by the Supreme Court in one case: Georgia v. Ashcroft, 539 U.S. 461 (2003). In that case, which involved allegations of vote dilution in the redistricting context, the Court adopted a multi-factor "totality of the circumstances" test, emphasizing that retrogression for vote dilution purposes should be evaluated by reference to "all the relevant circumstances, such as the ability of minority voters to elect their candidate of choice, the extent of the minority group's opportunity to participate in the political process [through 'influence districts' and other means], and the feasibility of creating a nonretrogressive plan." Id. at 479. During the 2006 reauthorization debates, Congress expressed concern that the open-ended Ashcroft framework would lead to "substantial uncertainty" and would hamstring the Attorney General's ability to make expeditious preclearance determinations. See H.R. Rep. No. 109-478, at 68. Accordingly, Congress added the language of 42 U.S.C. § 1973c(b) and (d) as part of the so-called "Georgia v. Ashcroft fix," in order to return the analysis to the comparatively simpler Beer framework. But nothing in the 2006 legislative record indicates that Congress meant to make the "ability to elect" standard the only relevant criterion under section 5's effect test. And there is certainly nothing to suggest that Congress meant to permit covered jurisdictions to adopt retrogressive restrictions on ballot access without an examination of the effects of those changes under section 5.
The argument that the 2006 Congress exempted ballot access changes from the scope of section 5's effect test is all the more implausible because reading the statute in the manner that Florida suggests would not only contradict the plain language of section 5(a), it would undermine the purpose of the Voting Rights Act. After all, section 5 was passed primarily because certain states and other covered jurisdictions were using "tests and devices," such as poll taxes, literacy tests, and other voting qualifications, to restrict minority voters' access to the ballot. See Katzenbach, 383 U.S. at 310-15. Yet under Florida's proposed interpretation, such tests and devices would escape scrutiny under the effect prong of section 5 precisely because they deal with ballot access measures, rather than "second-generation" discriminatory measures such as vote dilution. We do not believe -- nor do we find any evidence -- that this was the purpose of the Congress that extended the Voting Rights Act in 2006.
In any event, even if Florida's premise were correct and the "ability to elect" standard were now the sole criterion by which retrogressive effects may be judged, the State's conclusion would still not follow. It is axiomatic that in order for voters to be able to elect the candidates of their choice, they must first be able to register to vote, make it to a polling place, and cast a ballot that will count. Accordingly, election law changes that retrogressively burden such activities may well result ...