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In the United States District Court for the Southern District of Ohio Eastern Division Case: 2:06-cv-00896-ALM-TPK Doc #: 691 Filed: 06/07/16 Page: 1 of 115 PAGEID #: <pageID> IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION THE NORTHEAST OHIO COALITION : FOR THE HOMELESS, et al., : : Plaintiffs, : Case No. 2:06-CV-896 : v. : JUDGE ALGENON L. MARBLEY : JON HUSTED, in his official capacity as : Magistrate Judge Terence P. Kemp Secretary of the State of Ohio, : : Defendant. : FINAL JUDGMENT Case: 2:06-cv-00896-ALM-TPK Doc #: 691 Filed: 06/07/16 Page: 2 of 115 PAGEID #: <pageID> TABLE OF CONTENTS I. Introduction .................................................................................................................... 1 II. Procedural History......................................................................................................... 1 A. 2010 Consent Decree ................................................................................................. 4 B. Second Supplemental Complaint ............................................................................... 7 III. Findings of Fact ........................................................................................................... 9 A. Parties ........................................................................................................................ 9 1. Plaintiffs ............................................................................................................. 9 a. NEOCH ......................................................................................................... 9 b. CCH ............................................................................................................ 13 c. ODP ............................................................................................................. 14 2. Defendant ......................................................................................................... 15 B. Voting in Ohio ......................................................................................................... 15 1. Election-Day Voting ........................................................................................ 15 2. Absentee Voting............................................................................................... 16 a. In-Person Absentee Voting ......................................................................... 17 b. Mail-in Absentee Voting ............................................................................. 17 3. Provisional Voting ........................................................................................... 18 C. The Challenged Laws .............................................................................................. 19 1. SB 205 .............................................................................................................. 19 2. SB 216 .............................................................................................................. 20 D. The Lead-up to SB 205 and SB 216 ........................................................................ 22 E. The Implementation of SB 205 and SB 216 ............................................................ 27 1. Individual Voter Testimony ............................................................................. 27 2. Aggregate Data and Testimony from Board Officials ..................................... 30 3. Varied Board Practices .................................................................................... 31 F. Burden on Plaintiffs.................................................................................................. 33 1. Information Requirements ............................................................................... 33 2. Prohibition Against Poll-Worker Assistance ................................................... 34 3. Reduction of the Cure Period ........................................................................... 35 Case: 2:06-cv-00896-ALM-TPK Doc #: 691 Filed: 06/07/16 Page: 3 of 115 PAGEID #: <pageID> G. The State’s Justifications for Enacting the Challenged Laws ................................. 35 1. Information Requirements ............................................................................... 35 2. Prohibition Against Poll-Worker Assistance ................................................... 37 3. Reduction of the Cure Period ........................................................................... 37 H. Disparate Impact ...................................................................................................... 38 1. Dr. Jeffrey Timberlake ..................................................................................... 38 a. Background and Methodology .................................................................... 38 b. Conclusions Regarding Disparate Impact ................................................... 40 2. Dr. Nolan McCarty .......................................................................................... 42 3. Dr. M.V. “Trey” Hood ..................................................................................... 45 4. Conclusions from Expert Reports .................................................................... 47 I. Racial Discrimination ................................................................................................ 48 1. The Senate Factors ........................................................................................... 48 a. Fifth Factor: Extent of Discrimination Hindering Participation in Political Process ....................................................................................... 49 b. First and Third Factors: Voting-Related Discriminatory Processes ........... 53 c. Second Factor: Racially Polarized Voting in Ohio ..................................... 56 d. Sixth Factor: Racialized Appeals in Politics ............................................... 57 e. Seventh Factor: Minority Representation .................................................... 59 f. Eighth Factor: Lack of Responsiveness ....................................................... 60 g. Ninth Factor: Tenuousness .......................................................................... 60 2. The Calculus of Voting .................................................................................... 61 IV. Conclusions of Law ................................................................................................... 62 A. Standing ................................................................................................................... 62 1. Organizational Standing................................................................................... 63 2. Associational or Representational Standing .................................................... 66 3. Third-Party Standing ........................................................................................ 67 Case: 2:06-cv-00896-ALM-TPK Doc #: 691 Filed: 06/07/16 Page: 4 of 115 PAGEID #: <pageID> B. Constitutional Claims............................................................................................... 69 1. Equal Protection: Undue Burden ..................................................................... 69 a. Information Requirements ........................................................................... 72 b. Prohibition Against Poll-Worker Assistance .............................................. 76 c. Reduction of Cure Period ............................................................................ 77 2. Equal Protection: Disparate Treatment of Election-Day, Provisional, and Absentee Voters ............................................................................................ 79 3. Equal Protection: Lack of Uniform Standards ................................................. 82 4. Procedural Due Process ................................................................................... 83 5. Substantive Due Process .................................................................................. 85 6. Race Discrimination under the Fourteenth and Fifteenth Amendments .......... 86 7. Viewpoint Discrimination ................................................................................ 90 C. Voting Rights Act Claims ........................................................................................ 92 1. Section 2........................................................................................................... 92 a. SB 205 and SB 215 Have a Disparate Impact on African-Americans ........ 94 b. SB 205 and SB 216 Combine with the Effects of Past Discrimination to Interfere with the Voting Power of African-Americans ......................... 97 2. Materiality Provision ..................................................................................... 106 3. Literacy Test .................................................................................................. 107 V. Conclusion ................................................................................................................ 110 Case: 2:06-cv-00896-ALM-TPK Doc #: 691 Filed: 06/07/16 Page: 5 of 115 PAGEID #: <pageID> I. INTRODUCTION Because the right to exercise the franchise “is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.” Reynolds v. Sims, 377 U.S. 533, 562 (1964). Throughout this protracted litigation, the Court has endeavored to fulfill its duty to scrutinize various
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