Ohio Democratic Party v. Jon Husted

McKEAGUE, J.; delivered the opinion of the court in which GRIFFIN, J., joined. STRANCH, J. (pp. 640-51), delivered a separate dissenting opinion.

OPINION

This case presents yet another appeal (there are several pending in the Sixth Circuit alone) asking the federal-courts to become entangled, as overseers and micro-managers, in the minutiae of state election processes. No one denies that our Consti*623tution, in defining the relationship between the people and the government, establishes certain fundamental rights — including the right to vote — that warrant vigilant enforcement. But our Constitution also defines the relationship between spheres of government, state and federal, and their responsibilities for protecting the rights of the people. The genius of this balance of power is no less deserving of vigilant respect.

Ohio is a national leader when it comes to early voting opportunities. The state election regulation at issue allows early in-person voting for 29 days before Election Day. This is really quite generous. The law is facially neutral; it offers early voting to everyone. The Constitution does not require any opportunities for early voting and as many as thirteen states offer just one day for voting: Election Day. Moreover, the subject regulation is the product of a bipartisan recommendation, as amended pursuant to a subsequent litigation settlement. It is the product of collaborative processes, not unilateral overreaching by the political party that happened to be in power. Yet, plaintiffs complain that allowance of 29 days of early voting does not suffice under federal law. They insist that Ohio’s prior accommodation — 35 days of early voting, which also created a six-day “Golden Week” opportunity for same-day registration and voting — established a federal floor that Ohio may add to but never subtract from. This is an astonishing proposition.

Nearly a third of the states offer no early voting. Adopting plaintiffs’ theory of disenfranchisement would create a “one-way ratchet” that would discourage states from ever increasing early voting opportunities, lest they be prohibited by federal courts from later modifying their election procedures in response to changing circumstances. Further, while the challenged regulation may slightly diminish the convenience of registration and voting, it applies even-handedly to all voters, and, despite the change, Ohio continues to provide generous, reasonable, and accessible voting options to all Ohioans. The issue is not whether some voter somewhere would benefit from six additional days of early voting or from the opportunity to register and vote at the same time. Rather, the issue is whether the challenged law results in a cognizable injury under the Constitution or the Voting Rights Act. We conclude that it does not.

Federal judicial remedies, of course, are necessary where a state law impermissibly infringes the fundamental right to vote. No such infringement having been shown in this case, judicial restraint is in order. Proper deference to state legislative authority requires that Ohio’s election process be allowed to proceed unhindered by the federal courts. Accordingly, and for the reasons more fully set forth below, we REVERSE the decision of the district court insofar as it declared the subject regulation invalid and enjoined its implementation.

I. BACKGROUND

A. Procedural History

This is an appeal by State of Ohio officials from a district court judgment declaring a state election- regulation invalid as violative of equal protection and Section 2 of the Voting Rights Act of 1965.. The law, known as Senate Bill 238, amends Ohio Revised Code § 3509.01 to allow early in-person voting for a period of 29 days before Election Day. Though the law is facially neutral, the district court held that it results in an impermissible disparate burden on some African-American voters. Following a ten-day bench trial in November and December 2015, the district court issued its 120-page ruling on May 24, 2016, in the form of findings of fact and conclu*624sions of law. The court enjoined enforcement of S.B. 238, thereby effectively restoring Ohio’s preexisting 35-day early in-person voting period. Ohio officials promptly moved for a stay, arguing that implementing the district court’s order ahead of a special election on August 2, 2016, and the general election on November 8, 2016, would cause irreparable harm to its boards of elections and voting public. The court granted Ohio’s motion in part, staying its order only with respect to the special election that has since taken place on August 2. Ohio officials did not appeal the court’s ruling on the motion to stay, but asked us to expedite the merits appeal so the matter may be resolved prior to the November general election, a motion we granted.

B. Voting in Ohio

A brief review of recent voting regulation history in Ohio provides context. In 2004, Ohio permitted absentee ballots only if registered voters asserted one of several “excuses.” See Ohio Rev. Code § 3509.02(A)(1) — (8) (2004). The timeline for voting by absentee ballot was generous: a voter could pick up a ballot 35 days before Election Day, the first five of which extended 'into Ohio’s voter registration period (which ended 30 days before an election). Thus, Ohio maintained a five-day overlap of its registration period and its absentee voting period, allowing residents armed with a proper excuse to both register and vote (absentee) on the same day. This “same-day registration” window became known in Ohio as “Golden Week.” R. 117, Opinion at 34, Page ID 6156.

The 2004 presidential election brought special challenges to Ohio’s general voting apparatus. Among other problems, Ohio voters “faced long lines and wait-times that, at some polling places, stretched into the early morning of the following day.” Obama for America v. Husted, 697 F.3d 423, 426 (6th Cir. 2012). Largely in response to this experience, Ohio refined its absentee voting system in 2005 to permit early voting without need of an excuse. Id. Ohio residents enjoying the freedom of this “no-fault” or “no-excuse” system could vote absentee by mail or in person (“early in-person” or “EIP” voting) at their convenience. Ohio retained its preexisting absentee voting time frame. .

Until 2012, each of Ohio’s 88 county boards of elections retained the discretion to implement its own schedule for early in-person absentee voting. Varying schedules resulted. To remedy the inconsistencies, a task force from the Ohio Association of Election Officials (OAEO), a bipartisan association of election officials, proposed adoption of a uniform 21-day early in-person voting schedule, under which the period for “early” or “absentee” voting would start nine days after the end of the voter registration period.

In 2012, Ohio passed a law based on the OAEO recommendation, but repealed it after the law became subject to a referendum. In 2013, another bipartisan task force recommended that absentee voting not be allowed until the day after the registration period closed, establishing an early voting time frame of 29 days instead of the previously recommended 21 days. On February 19, 2014, Ohio passed S.B. 238, amending Ohio Rev. Code § 3509.01 to make the first day of early absentee voting — whether early in-person or by mail — the day after the close of voter registration. This amendment effectively eliminated Golden Week and the possibility of same-day registration.

Shortly before the 2014 election, the NAACP and other groups challenged S.B. 238, alleging that it disproportionally affected African Americans, thereby (1) violating the Equal Protection Clause of the Fourteenth Amendment by burdening African Americans’ fundamental right to *625vote; and (2) violating Section 2 of the Voting Rights Act of 1965 by burdening African-American voters’ ability to participate effectively in Ohio’s political process. Though a panel of this court upheld a preliminary injunction preventing implementation of the law, see Ohio State Conference of NAACP v. Husted, 768 F.3d 524, 529 (6th Cir. 2014) (hereinafter “NAACP”), the Supreme Court stayed the injunction, Husted v. Ohio State Conference of NAACP, — U.S.-, 135 S.Ct. 42, 189 L.Ed.2d 894 (2014), and the panel subsequently vacated its decision for mootness. Ohio State Conference of NAACP v. Husted, 2014 WL 10384647, at *1 (6th Cir. Oct. 1, 2014). Thus, the 2014 election took place with S.B. 238 in full effect. After the election, the parties to NAACP reached a settlement under which Ohio added another Sunday of early in-person voting as well as additional evening hours, and the plaintiffs voluntarily dismissed their claim challenging the 29-day voting period.1

This brings us to the present action. After NAACP settled, plaintiffs in this action, the Ohio Democratic Party, the Democratic Party of Cuyahoga County, the Montgomery County Democratic Party, and three individuals (collectively referred to as “plaintiffs” or the “Democratic Parties”), evidently finding the settlement negotiated by the NAACP to be unsatisfactory, challenged S.B. 238 (as modified per settlement) and other Ohio laws as violating the Equal Protection Clause and Section 2 of the Voting Rights Act, 52 U.S.C. § 10301.2 Despite subsequently acknowledging that “Ohio’s national leadership in voting opportunities is to be commended,” R. 125, Stay Order, Page ID 6302, the district court held that S.B. 238 violated the Equal Protection Clause and the Voting Rights Act based largely on what it called the “highly persuasive” reasoning of this court’s since-vacated ruling upholding a preliminary injunction in NAACP. See R. 117, Opinion at 35-36, Page ID 6156-57.

Regarding plaintiffs’ equal protection challenge, the district court concluded that S.B. 238 imposed a “modest” (i.e., “more than minimal but less than significant”) disparate burden on African Americans. The “numerous opportunities to cast a ballot in Ohio, including vot[ing] by mail, in person on Election Day, and on other EIP voting days” were deemed insufficient to mitigate the burden. See R. 117, Opinion at 34-36, 42-43, Page ID 6156-58, 6164-65. Although Ohio allows numerous and convenient registration options (including registration by mail), more than four weeks of absentee voting, and more than three weeks of early in-person voting, the district court acknowledged that there are minimal postage costs associated with voting by mail and accepted what it characterized as “anecdotal evidence” that “African Americans are distrustful of voting by *626mail” to conclude that voting by mail may not be a suitable alternative to early in-person voting for many African-Americans. Id. at 43-44, Page ID 6165-66. The court concluded that, despite Ohio’s generous voting options, S.B. 238’s modification of Ohio’s early voting schedule resulted in a disparate burden on some African-American voters. And despite accepting the legitimacy of Ohio’s asserted interests (preventing fraud, decreasing costs, reducing administrative burdens, and enhancing voter confidence, id. at 49-57, Page ID 6171-79), the court held they did not justify the modest burdens imposed by the law.

The court then turned to the Democratic Parties’ Voting Rights Act claim and held that S.B. 238 violated Section 2 of the Voting Rights Act as it “interacts with the historical and social conditions facing African Americans in Ohio to reduce their opportunity to participate in Ohio’s political process relative to other groups of voters[.]” Id. at 107, Page ID 6229.

II. Equal Peotection

A. Framework

Election cases rest at the intersection of two competing interests. Though not a delineated right per se, the Supreme Court has readily acknowledged the general right to vote as “ ‘implicit in our constitutional system.’ ” Mixon v. State of Ohio, 193 F.3d 389, 402 (6th Cir. 1999) (quoting San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 35 n.78, 93 S.Ct. 1278, 36 L.Ed.2d 16, (1973)). As such, this “precious” and “fundamental” right is afforded special protection by the courts, Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 670, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966), as “voting is of the most fundamental significance under our constitutional structure.” Burdick v. Takushi, 504 U.S. 428, 433, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) (citation omitted). Against this backdrop, however, we also acknowledge the obvious: the “right to vote in any manner ... [is not] absolute,” id. as the Constitution recognizes the states’ clear prerogative to prescribe the “Times, Places and Manner of holding Elections for Senators and Representatives.” U.S. Const. Art. I, § 4, cl. 1. “Common sense, as well as constitutional law, compels the conclusion that [there] ... must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” Burdick, 504 U.S. at 433, 112 S.Ct. 2059 (quoting Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974)). Federal law thus generally defers to the states’ authority to regulate the right to vote. See Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 203-04, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008) (Stevens, J., op.) (recognizing that neutral, nondiscriminatory regulation will not be lightly struck down, despite partisan motivations in some lawmakers, so as to avoid frustrating the intent of the people’s elected representatives).

When a constitutional challenge to an election regulation calls us- to resolve a dispute concerning these competing interests, we apply the so-called AndersonBurdick framework, an analysis arising from the Supreme Court’s holdings in Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983), and Burdick v. Takushi, 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992). The Anderson-Burdick framework involves the following considerations:

[T]he court must first consider the character and magnitude of the asserted injury to the rights protected by the [Constitution] that the plaintiff seeks to vindicate. Second, it must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. Finally, *627it must determine the legitimacy and strength of each of those interests and consider the extent to which those interests make it necessary to burden the plaintiffs rights.

Green Party of Tennessee v. Hargett, 791 F.3d 684, 693 (6th Cir. 2015) (internal quotation marks and citations omitted). Though the touchstone of Anderson-Bur-dick is its flexibility in weighing competing interests, the “rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights.” Burdick, 504 U.S. at 434, 112 S.Ct. 2059. This flexible balancing approach is not totally devoid of guidelines. If a state imposes “severe restrictions” on a plaintiffs constitutional rights (here, the right to vote), its regulations survive only if “narrowly drawn to advance a state interest of compelling importance.” Id. On the other hand, “minimally burdensome and nondiscriminatory” regulations are subject to a “less-searching examination closer to rational basis” and “ ‘the State’s important regulatory interests are generally sufficient to justify the restrictions.’ ” Ohio Council 8 Am. Fed’n of State v. Husted, 814 F.3d 329, 335 (6th Cir. 2016) (citing Hargett, 767 F.3d at 546, and quoting Burdick, 504 U.S. at 434, 112 S.Ct. 2059). Regulations falling somewhere in between — i.e., regulations that impose a more-than-minimal but less-than-severe burden — require a “flexible” analysis, “weighing the burden on the plaintiffs against the state’s asserted interest and chosen means of pursuing it.” Hargett, 767 F.3d at 546.

Because plaintiffs have advanced a broad attack on the constitutionality of S.B. 238, “seeking relief that would invalidate the statute in all its applications, they bear a heavy burden of persuasion.” Crawford, 553 U.S. at 200, 128 S.Ct. 1610 (Stevens, J., op.). Because we conclude that S.B. 238 results, at most, in a minimal disparate burden on some African Americans’ right to vote, and because the State’s legitimate interests are “sufficiently weighty” to justify this minimal burden, S.B. 238 easily survives plaintiffs’ equal protection challenge. See id. at 190, 128 S.Ct. 1610.

B. Disparate Burden on African-American Voters

1. District Court’s Characterization

The first step in evaluating the plaintiffs’ equal protection challenge requires us to identify the “character and magnitude” of the burden on African-American voters as a result of the challenged law. The district court identified the burden imposed on some African Americans’ right to vote by considering the changes effected by S.B. 238, rather than by examining Ohio’s election regime as a whole. The court found that operation of S.B. 238 resulted in a disparate burden on some African Americans as a function of two changes: “(1) by reducing the overall [early in-person] voting period, and (2) by eliminating the opportunity for [same-day registration].” R. 117, Opinion at 35, Page ID 6157.

Regarding the reduction of the early in-person voting period, the district court discerned a burden after accepting three simple premises: (1) that tens of thousands of people voted during Golden Week in both 2008 and 2012 and are likely to do so in the upcoming 2016 election; (2) that S.B. 238’s elimination of Golden Week requires that “[i]ndividuals 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;” and (3) because African Americans have shown a preference for voting early in person (and during Golden Week) at a rate higher than other voters, the “elimination of the extra days for EIP voting provided *628by Golden Week will disproportionately burden African Americans.” Id. at 36, Page ID 6158. The district court further noted that beginning early in-person voting after the registration period eliminated “same-day registration,” meaning that “voters must now register and vote at separate times, which increases the ‘cost of voting,’ especially for socioeconomically disadvantaged groups.” Id. at 40, Page ID 6162. That is, the court recognized that “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.” Id. The district court concluded that, because “African Americans in particular are more likely to be subject to economic, transportation, time, and childcare constraints,” id. at 40, Page ID 6162, they “disproportionately make up the group that benefits the most from [same-day registration], and the elimination of that opportunity burdens their right to vote.” Id. at 42, Page ID 6164. Taking the reduction in early in-person voting days and the elimination of same-day registration together, the district court characterized the changes effected by S.B. 238 as imposing a “modest” burden on African Americans’ right to vote. Id.

2. Defining the Burden

As a threshold matter, we note that the district court’s characterization of the resultant burden as “modest” is not a factual finding, but a legal determination subject to de novo review. See Bright v. Gallia Cnty., 753 F.3d 639, 652 (6th Cir. 2014) (explaining that “legal conclusions masquerading as factual allegations” do not convert legal questions into factual ones); Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 587 (6th Cir. 2006) (evaluating factual and evidentiary factors to reach a legal conclusion on the “magnitude” of burden); Hargett, 767 F.3d at 547 (“Whether a voting regulation imposes a severe burden is a question with both legal and factual dimensions.”); Williams v. Mehra, 186 F.3d 685, 689 (6th Cir. 1999) (en banc) (applying de novo review to mixed questions of law and fact, observing that “findings of ultimate fact based on the application of legal principles to subsidiary facts are subject to de novo review.”). Inasmuch as the State does not challenge the district court’s findings of fact, we evaluate de novo the district court’s application of legal principles to those subsidiary facts in characterizing the burden made out by those facts.

The undisputed factual record shows that it’s easy to vote in Ohio. Very easy, actually. Viewing S.B. 238 as one component of Ohio’s progressive voting system, and considering the many options that remain available to Ohio voters, even accepting the district court’s focus on the changes wrought by S.B. 238, the removal of Golden Week can hardly be deemed to impose a true “burden” on any person’s right to vote. At worst, it represents a withdrawal or contraction of just one of many conveniences that have generously facilitated voting participation in Ohio. This is especially apparent when Ohio’s voting practices are compared to those of other states.

Ohio’s early voting system, as amended by S.B. 238, is one of the more generous in the nation. The State’s 29-day early voting period is currently the tenth-longest among all the states. R. 127-14, Trende Rep. at 10, Page ID 6610. When compared to the thirteen states (including two other states in our circuit, Kentucky and Michigan) that do not permit any early in-person voting days, an Ohioan’s path to voting is open and easy, not burdensome. And S.B. 238’s withdrawal of the convenience of same-day registration is hardly obstructive; it merely brings Ohio into line with thirty-eight other states that require *629registration before an individual may vote.3 Ironically, if Ohio had never expanded access to absentee ballots in the first place and maintained early voting systems similar to Michigan’s or Kentucky’s (permitting no early in-person voting), it would have avoided this challenge altogether, as well as those addressed in Obama for America, 697 F.3d 423, and our since-vacated preliminary injunction decision in NAACP, 768 F.3d 524. Instead, “it is [Ohio’s] willingness to go further than many States in extending the absentee voting privileges ... that has provided [plaintiffs] with a basis for arguing that the provisions operate in an invidiously discriminatory fashion to deny them a more convenient method of exercising the franchise.” McDonald, 394 U.S. at 810-11, 89 S.Ct. 1404 (emphasis added). It’s as if plaintiffs disregard the Constitution’s clear mandate that the states (and not the courts) establish election protocols, instead reading the document to require all states to maximize voting convenience. Under this conception of the federal courts’ role, little stretch of imagination is needed to fast-forward and envision a regime of judicially-mandated voting by text message or Tweet (assuming of course, that cell phones and Twitter handles are not disparately possessed by identifiable segments of the voting population).

The district court ignored Ohio’s national leadership in affording privileged voting opportunities, believing that comparison of Ohio’s early-voting system to that of other states was irrelevant under Anderson-Bur-dick. We fail to see the merit in wearing blinders. While comparisons with the laws and experience of other states may not be determinative of a challenged law’s constitutionality, to ignore such information as irrelevant is to needlessly forfeit a potentially valuable tool in construing and applying “equal protection of the laws,” a constitutional standard applicable to all the states. Forfeiting such a tool would artificially constrict the court’s vision and deny reality: courts routinely examine the burden resulting from a state’s regulation with the experience of its neighboring states. See Blackwell, 462 F.3d at 589 (comparing Ohio’s process for permitting minor political parties to gain access to the general election ballot with numerous other states); Hargett, 791 F.3d at 694-95 (comparing Tennessee’s “access-retention” system bro.adly to other states); Frank v. Walker, 768 F.3d 744, 745 (7th Cir. 2014) (comparing Wisconsin’s voter-ID statute to Indiana’s).

We certainly recognize that different states may offer different justifications for the existence or absence of early in-person voting or same-day registration, and do not suggest that Ohio may escape challenges to election regulations simply by pointing to the least accommodating state and saying, ‘We do it better.” Rather, we reject the notion that such comparisons are irrelevant, as they provide a contextual basis for determining whether the “burden” said to fall here disproportionately on some African-American voters is properly characterized as non-existent, or minimal, or slight, or limited, or modest, or significant, or enormous, or severe. And besides, Ohio is not simply arguing its practices are better. Instead, State officials are defending a liberal absentee voting practice that facilitates participation by all members of the voting public, including those in “socioeconomically disadvantaged groups,” see R. 117, Opinion at 40, Page ID 6162, of whatever race or ethnic background, in a manner more accommodating than the practices of most other states, by affording *630a “no-questions-asked” right to an absentee ballot and a litany of ways to use it.

Thus, in evaluating the magnitude of the “burden,” we find that elimination of Golden Week is a small part of what remains, objectively viewed, a generous early voting schedule. The notion that S.B. 238’s elimination of same day registration disparately imposes anything more than a “minimal” burden on some African Americans ignores the abundant and convenient alternatives that remain for all Ohioans who wish to vote.

Consider the numerous options available to all Ohio voters, including African Americans, to conveniently cast a ballot before Election Day. The State’s use of “no-excuse” absentee ballots provides any interested resident the chance to cast a ballot more than four weeks before Election Day by mail, and more than three weeks before Election Day if a voter prefers to do so in person. Ohio Rev. Code § 3509.01. Moreover, this early in-person voting schedule includes two Saturdays, two Sundays, and ten days when voting is permitted until either 6:00 p.m. or 7:00 p.m. — for voters who are “distrustful of voting by mail,” R. 117, Opinion at 43, Page ID 6165, who are assisted by “Souls to the Polls” initiatives, Page ID 6168, who struggle to find time away from “hourly wage jobs,” Page ID 6162, or who merely prefer to save on postage. And these accommodations are a direct result of the settlement reached in NAACP which was specifically designed to accommodate voters in Ohio’s African-American communities. See R. 127-14, Settlement, Page ID 6775-77.

The district court placed inordinate weight on its finding that some African-American voters may prefer voting on Sundays, or avoiding the mail, or saving oh postage, or voting after a nine-to-five work day. To the extent S.B. 238 may be viewed as impacting such preferences, its “burden” clearly results more from a “matter of choice rather than a state-created obstacle.” Frank, 768 F.3d at 749. The Equal Protection Clause, as applied under the Anderson-Burdick framework, simply cannot be reasonably understood as demanding recognition and accommodation of such variable personal preferences, even if the preferences are shown to be shared in higher numbers by members of certain identifiable segments of the voting public.

We also conclude that the elimination of same-day registration and the resulting need for Ohioans to register and vote on separate occasions is, at most, minimally burdensome. Like voting before 'Election Day, Ohio also makes registration easy. Registration forms are conveniently distributed throughout its communities at the 88 boards of elections offices as well as many other locations, including “local libraries, at many of the municipal city halls, high schools”- — and can even be printed from county websites. R. 97, Per-latti Tr., Page ID 4067.4 And if this isn’t enough, the Secretary of State mailed absentee ballot applications to almost every registered voter in the state in the past two elections and plans to do so in the 2016 election. Id. Thus, even without Golden Week, Ohio’s registration and voting processes afford abundant opportunity for all Ohio voters, of whatever racial or ethnic background, to register and exercise their right to vote.

It’s no surprise then, that the Supreme Court in Crawford rejected an analogous challenge to an undeniably more burdensome law based on this sort of “burden of making a second trip to vote” argument. The Court held that first going to the *631Bureau of Motor Vehicles and then casting a ballot was ultimately no more “burdensome” than the usual challenges of voting. Crawford, 553 U.S. at 198-99, 128 S.Ct. 1610 (Stevens, J., op.) (the “inconvenience of making a trip to the .BMV, gathering the required documents, and posing for a ■photograph surely does not ... even represent a significant increase over the usual burdens of voting,” even though “a somewhat heavier burden may be placed on a limited number of persons” including the elderly, the economically disadvantaged, and the homeless). Scrounging up a birth certificate, making a trip to the BMV, and obtaining a photo ID surely cannot be considered less “burdensome” than submitting one of Ohio’s virtually ubiquitous registration cards (which can be mailed back, dropped off in person, or returned by another) and enjoying the convenience of a no-excuse early absentee voting on any one of Ohio’s twenty-nine voting days.

Therefore, viewing S.B. 238 objectively under the Anderson-Burdick framework in a manner consonant with the Court’s most recent application of the framework in Crawford, we see a regulation that can only be characterized as minimally burdensome on the right of some African-American voters. Beyond evidence that African Americans may use early in-person voting at higher rates than other voters and may therefore be theoretically disadvantaged by reduction of the early voting period, the record does not establish that S.B. 238 — as opposed to non-state-created circumstances — actually makes voting harder for African Americans. Plaintiffs do not point to any individual who, post-S.B. 238, will be precluded from voting. Without sufficient evidence to “quantify either the magnitude of the burden on this narrow class of voters or the portion of the burden that is fully justified,” the Crawford Court refused to accept bare assertions that “a small number of voters ... may experience a special burden” and instead looked to the statute’s “broad application” to all state voters in concluding that the law imposed “only a limited burden on voters’ rights.” Crawford, 553 U.S. at 200, 202-03, 128 S.Ct. 1610 (Stevens, J., op.).

The Crawford application of Anderson-Burdick is consistent with our precedent recognizing that broadly applicable and non-discriminatory laws are presumed to pass constitutional muster: “If the State had enacted a generally applicable, nondiscriminatory voting regulation that limited in-person early voting for all Ohio voters, its ‘important regulatory interests’ would likely be sufficient to justify the restriction.” Obama for America, 697 F.3d at 433-34 (quoting Burdick, 504 U.S. at 434, 112 S.Ct. 2059);5 see also Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 452, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) (“If a statute imposes only modest burdens, however, then the State’s important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions on election procedures.” (internal quotation marks omitted; emphasis added)). The Crawford Court also' recognized, in fact, that it had “applied Anderson's standard for reasonable, nondiscriminatory restrictions and upheld Hawaii’s prohibition on write-in voting even though it actually prevented a significant number of voters from participating in Hawaii elections in a meaningful manner.” Crawford, 553 U.S. at 190, 128 S.Ct. 1610 (Stevens, J., op.) (internal citation and quotation marks omitted; emphasis added).

Considering the generally applicable and non-discriminatory nature of S.B. 238 in light of Ohio’s generous absentee voting *632system, a system which provides extensive opportunities for all voters, including African Americans, to cast their ballots short of coming out on Election Day, we hold that S.B. 238 results only in a minimal burden on African Americans’ right to vote. See Burdick, 504 U.S. at 434-37, 112 S.Ct. 2059 (assessing Hawaii’s ban on “write-in” votes for candidates in light of the State’s otherwise “easy access to the ballot”); Ohio Council, 814 F.3d at 335 (holding that ballot restrictions on judicial candidates imposed only minimal burdens on political parties because Ohio law gave parties “many other opportunities to champion [their] nominee[s]”). We therefore reject the district court’s conclusion that S.B. 238 imposes a “modest” burden. We next look to the State’s interests in adopting the regulation. See Crawford,