Effie Stewart v. J. Kenneth Blackwell

The plaintiffs are African-American and Caucasian voters residing in Hamilton, Montgomery, Sandusky, and Summit Counties in Ohio. They filed their complaint on October 11, 2002 alleging that: (1) the use of unreliable, deficient voting equipment, including the punch card ballot, in some Ohio counties but not other counties violates the Equal Protection Clause of the Fourteenth Amendment; (2) the use of error prone voting equipment deprives voters of their due process right to have their votes counted accurately; and (3) the use of punch card voting systems in Hamilton, Montgomery, and Summit Counties has a disparate impact on African-American voters in violation of Section 2 of the Voting Rights Act of 1965. The plaintiffs sought declaratory and injunctive relief prohibiting the defendants from: (1) continuing to allow the use of "non-notice" and deficient punch card and optical scan voting equipment in some Ohio counties while using more reliable voting equipment in other counties; (2) using non-notice punch card voting equipment in Hamilton, Montgomery, and Summit Counties; and (3) using non-notice optical scan voting systems in Sandusky County.

On December 14, 2004, the district court rejected the plaintiffs' claims and granted summary judgment in favor of the defendants. Some commentators have suggested that these types of voting rights challenges are taking us into a brave new world. Others suggest that they are simply variations of old challenges. Regardless of the proper characterization, we find ourselves bound by Supreme Court precedent, and therefore, with regard to the plaintiffs' claim under the Equal Protection Clause, we REVERSE the district court's judgment. With regard to the plaintiffs' claim under the Voting Rights Act, we VACATE the district court's judgment and REMAND for proceedings consistent with this opinion.

A. Background Information on Voting Technology

Ohio law empowers the Secretary of State to certify voting equipment. Ohio Rev.Code § 3506.15.1 The Secretary has certified two general types of equipment: (1) "Notice" equipment such as Digital Recording Electronic (DRE) and precinct-count optical scan equipment that prevent overvotes (when a voter votes for more than the permissible number of candidates for a given office) and warn voters when they are casting undervotes (when a voter does not vote in a particular race or votes for fewer candidates than is permissible for a given office) — together, overvotes and undervotes are referred to as "residual votes"; and (2) "Non-notice" equipment such as punch card and central-count optical scan equipment that do not provide notice of and the opportunity to correct residual votes. In the 2000 general election, approximately 72.5% of Ohio voters used non-notice equipment and 27.5% used notice equipment.

In the 2000 general election, the most frequently used equipment in Ohio was the Votomatic punch card, a non-notice system that relies on a ballot card with pre-scored, square perforations or "chad" that correspond to the names of the candidates listed in an accompanying booklet. Names of candidates or other identifying information for ballot measures do not appear on the actual ballot. The punch card system does not provide independent notice of an overvote or undervote. A vote is recorded by the machine when light passes through the detached holes. Problems with the machines can cause "hanging chad" that remain attached to the ballot by one, two, or three corners; "pierced chad" that are penetrated by the stylus but not dislodged from the ballot; and "dimpled chad" that are dented but not penetrated or dislodged. Because of these inherent chad problems, light often cannot pass through the holes and a vote is not recorded. Problems inherent in the punch card machines are sometimes caused by the build up of chads which may make it difficult or impossible to cleanly punch the card and record a vote.

Optical scan systems resemble answer sheets used in standardized testing. The voter is given a ballot listing the names of all candidates and ballot initiatives and either uses a pencil to darken the circle next to the preferred candidate or draws a straight line connecting two parts of an arrow. Optical scan systems can be either precinct-count systems, which enable voters to scan the ballot at the polling place thereby providing independent notice of and an opportunity to correct residual votes, or central-count systems, which do not provide independent notice or the opportunity to correct mistakes.

Electronic DRE machines come in several varieties, but most often resemble automated teller machines or ATMs used at banks. Voters either touch the name of the preferred candidate on the screen or press a button that corresponds to the preferred candidate. All forms of DRE technology currently used in Ohio make it impossible to overvote for the same office or ballot initiative. DRE systems can also be programmed to warn voters if their ballots contain undervotes. DRE systems (like precinct-count optical scan systems), therefore, provide independent notice of residual votes.

In the 2000 general election, sixty-nine of eighty-eight Ohio counties used punch card ballots. Eleven counties used optical scan equipment, six used electronic equipment, and two used automatic or "lever" voting machines. These systems utilize different methods of reading and counting votes. Some of the systems allow voters to check their ballots for residual votes. For example, one county and part of another county utilized precinct-count optical scan equipment, and six others use electronic voting equipment that allows a voter to verify their ballot on a screen before the final ballot is cast. Most systems, however, including the ones operated by the four county defendants, scan and count ballots at a central location after the polls have closed. Thus, in total, eighty-one of eighty-eight Ohio counties used non-independent-notice equipment — voting technology that does not provide a voter with notice from the voting device that a problem might exist before the ballot is finally cast — in the 2000 general election.

Only three counties collected statistics on overvotes — Hamilton County, which had 2,916 overvotes, Summit County, which had 1,470 overvotes, and Montgomery County, which had 2,469 overvotes. This is a total of 6,855 overvotes in those three counties, which represents approximately 34% of the total residual votes cast in those counties. Franklin County used notice technology and there were zero overvotes.

The plaintiffs' expert, Dr. Martha Kropf, testified regarding estimates of intentional and unintentional undervoting based on data collected by National Elections Studies and the Voters News Survey in exit polls and surveys in presidential elections between 1980 and 1996. Kropf testified that intentional undervoting in presidential elections is a relatively rare event that is estimated to involve between .23% and.75% of all residual votes. Dr. Kropf concluded that when levels of undervoting exceed this threshold and vary by equipment it is probable that they resulted from unintentional undervoting that is associated with problems of the punch card ballot. She also found no difference between African-American and non African-American voters in levels of intentional undervotes. Kropf measured the performance of voting equipment by examining presidential and U.S. Senate races at the top of the ballot because these are statewide elections where all voters face the same candidates, and media coverage, levels of candidate competition, and voter mobilization are relatively uniform. Kropf reported an overall statewide residual vote rate of 2.29% for punch card systems and 2.14% for central-count optical scans. That is, voters in punch card counties are approximately four times as likely not to have their votes counted as a voter using reliable electronic voting equipment. In some counties specific precincts encountered more severe problems with residual voting. In Akron City Precinct 3-F the residual vote rate was 15% and in Dayton City's 14th Ward Precinct C the residual vote rate was 17%.2 In addition, the counties in Ohio experiencing the highest percentage of residual votes in the 2000 presidential election were those in which voters used punch card technology while the counties experiencing the lowest percentage of residual votes used other technology. The twenty-nine counties in Ohio with the highest residual vote percentages were all counties that used punch card machines; the seven counties with the lowest residual vote percentages were all counties that did not use punch card machines as their primary voting system.

Roy Saltman, formerly of the National Bureau of Standards and the author of two federal studies on the use of computers in vote tallying testified that his studies "demonstrate that punch cards are inherently fragile, and they become less stable when ballots are handled or manipulated or sent through a reader, resulting in overvotes, undervotes, and inconsistent vote tabulations." Saltman explained that lost votes are not attributable solely to voters' failure to follow instructions. According to Saltman, "[w]hen the ballot is then handled or manipulated or sent through a reader, it is more likely that additional chads will be dislodged and fall out. And if that happens, the votes indicated on the ballot are changed because the presence of holes indicates votes." Dana Walch, Director of Election Reform for the Ohio Secretary of State's Office, confirmed the plaintiffs' evidence that there is "a higher residual vote rate in punch card counties than in ... counties with other types of voting technology." Walch further testified that problems with the punch card ballots "were the result of some physical failure of the ballot or voter error." The record also includes letters from Tim Burke, the Chairman of the Board of Elections in Hamilton County, which state that:

While I continue to believe that the punch card system functions reasonably well for the price, it does have faults that the electronic machines do not have. I believe that the chad problem is a very small part of our problem here in Hamilton County. It does exist though. In fact, it is an inherent part of the punch card system. On the other hand, chads are totally eliminated with electronic systems.

Another letter authored by Burke to U.S. Senator Mike DeWine stated that:

Having looked closely at the punch card system of voting we use here in Hamilton County, I am convinced that this outdated technology is having a disparate impact in depriving a significant number of voters of having their electoral choices given.... Newer technology, particularly the touch screen voting systems, provide both a more accurate count and prevent a voter from [overvoting].

Finally, a third letter from Burke stated that:

I am not as confident that our punch card voting system tells us with precise accuracy the number of votes any particular individual received or should have received if the intent of the voter had been properly accounted for.... In the punch card system you can and it is objectively provable that hundreds and hundreds of people lose their vote each year.

In response to this evidence, the district court acknowledged that "running the punch card ballots repeated times through the counting machinery will result in different results."

The Caltech MIT Voting Technology Project report — a joint venture between the two institutions to study, in part, the reliability of existing voting equipment — which is referenced throughout the record, is also informative. As the report notes, that "[i]f voting equipment has no effect on the ability of voters to express their preferences, then the residual vote should be unrelated to machine types." See Caltech-MIT Voting Technology Project, Residual Votes Attributable to Technology: An Assessment of the Reliability of Existing Voting Equipment (Version 2: March 30, 2001), available at http://www.vote.caltech.edu (last accessed April 1, 2006). The report concluded that the error rate from punch cards is 50 percent higher than other technologies and that the pattern holds up when "holding constant turnout, income, racial composition of counties, age distribution of counties, literacy rates, the year of a shift in technology, the number of offices and candidates on the ballot, and other factors that operate in a county or in a particular year." Report at 22. In conclusion, the report stated that "[t]he incidence of such residual votes with punch card methods ... is forty to seventy percent higher than the incidence of residual votes with the other technologies," Report at 17, and cautioned that "[i]f election administrators wish to avoid catastrophic failures, they may heed th[is] warning ... Stop using punch cards," Report at 11.

Defendants' expert Dr. John Lott examined the performance of voting technology across three election cycles, 1992, 1996, and 2000, in the presidential, Congressional, Ohio Senate, and Ohio House elections. His findings for the presidential and U.S. Senate elections mirror Kropf's in the 2000 election. Lott reported an overall statewide residual vote rate of 2.4% for punch card systems.

Dr. Lott's report stresses findings from the down-ballot contests — contests listed below the presidential candidates farther down the ballot — that were not uniform across the state and included non-competitive and uncontested elections. The experts on both sides appear to agree that the most likely explanations for the fall-off in down-ballot voting are that voters deliberately choose not to vote or that elections were not competitive. Lott's report does not include specific findings on overvotes. Further, the defendants' experts made no effort to distinguish intentional from unintentional undervoting in the down-ballot elections. Lott also admitted that a review of the literature revealed that no other major scholars have agreed with his findings regarding the relevance of analyzing non-uniform down-ballot races.

The State's Help America Vote Act report also provides evidence of the problem of deficient electoral technology. At the outset, the report notes that "[p]ublic confidence in the accuracy of punch card voting systems has been seriously undermined." Thus, "Boards of election should upgrade their voting systems to new, more trustworthy technology." Additionally, "[t]hese goals demand immediate attention, or our state runs the risk of repeating the problems of our nation's most recent presidential election — and suffering irreparable damage to the most important and basic concepts of democracy." Regarding the deficient technology currently in use throughout the State, the report stated that:

"While the Secretary of State notes that punch-card voting is not explicitly prohibited under the Help America Vote Act, other requirements of the Act make it impractical to use punch card voting as a primary voting device in the state. In a study of `over' and `under' voting in Ohio, it was clearly demonstrated that punch-card voting was unreliable to the extent [that] votes cast by thousands of Ohioans were not being counted in the final election tabulation."

(Emphasis added). Additionally, the report stated that:

As election officials, if we know voters are disenfranchised and that legitimately cast ballots are being discounted, we have not only a moral obligation to immediately embrace a solution, but a legal obligation to find a remedy and enact measures to prevent that from happening. If even one voter is denied the right to vote, we are obligated, by law, to determine the cause and forge a solution. The evidence is overwhelming that thousands of Ohio voters have been disenfranchised by antiquated voting equipment and that many thousands have lost confidence in the reliability and accuracy of voting devices currently in use in most of Ohio's 88 counties.

(Emphasis added).

Finally, in response to the legislature's slow response to the electoral problems, the Secretary of State wrote a letter stating that "the possibility of a close election with punch cards as the state's primary voting device invites a Florida-like calamity."

On their Voting Rights Act claim, the plaintiffs alleged that the punch card system used in Hamilton, Montgomery, and Summit Counties produces a higher residual vote rate for African-American voters than for white voters. The plaintiffs presented regression analysis that the correlation between overvoting and the percentage of African-American voters in a given precinct in Hamilton County was .517 and in Summit County it was .682.3 The plaintiffs' experts characterized these correlations as "strong." In Montgomery County, where only data of overvotes mixed with undervotes was available at the precinct level, there was a smaller, but nevertheless "strong" .440 correlation.

The plaintiffs' expert, Dr. Richard Engstrom, analyzed the data based on methods of statistical analysis approved by the Supreme Court and other federal courts in voting rights cases. See e.g., Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986); Mallory v. Ohio, 173 F.3d 377 (6th Cir.1999). The three methods are homogeneous precinct analysis, ecological regression, and ecological inference. Dr. Engstrom used all three methods and triangulated among them to verify that his findings moved consistently in the same direction; the defendants' expert did not use any of these methods. Dr. Engstrom concluded that: (1) African-Americans in Hamilton County overvoted at a rate seven times higher than non African-Americans; (2) in Summit County, African-Americans overvoted at a rate nine times higher than non African-Americans; and (3) in Montgomery County (where only combined over and undervote statistics are available on a precinct basis), African-Americans had a residual voting rate 2.5 times that of non African-Americans. In contrast to the three punch card counties, Franklin County had no overvotes because it used DRE machines that prevent overvoting.

Based on this information, Dr. Engstrom testified that punch card equipment interacts with socioeconomic conditions, resulting in statistically significant disparities between the levels of residual voting among African-American and non African-American voters.

The defendants contend that the plaintiffs did not provide factual evidence to prove a violation of the Constitution or Voting Rights Act. With heavy emphasis on the plaintiffs' stipulation that they were not denied physical access to the polls, the defendants seem to allege that the plaintiffs were not denied the right to vote. State Defendant's Br. at 8. The defendants attack the plaintiffs' expert, Martha Kropf, who testified that intentional undervoting is rare, based on the fact that she relied exclusively on exit polls commissioned by the National Election Survey and the Voters News Service. They further point out that in the 1988 election, the National Election Survey determined that between 3-5% of those who claimed to have voted had no record of actually voting in the election. Thus, according to the defendants, the data the plaintiffs relied on consistently over-reports voter turnout — thereby inflating the residual vote statistics. The defendants also criticize the plaintiffs for not examining the voting results of the entire state and instead focusing on Hamilton, Sandusky, Summit, and Montgomery Counties. The defendants further claim to poke holes in the plaintiffs' theory by pointing out that the plaintiffs' own study shows that African-Americans using punch card technology in Hamilton County had a lower residual vote rate than non African-Americans using the punch card technology in Summit County.

The defendants also point to their expert, Dr. John Lott, who examined the 1992, 1996, and 2000 presidential elections and down-ballot races such as U.S. Senate, U.S. Congress, state legislature races, and local races. Dr. Lott found that punch cards outperformed electronic machines in congressional races, that punch cards reliability improved for down-ballot races relative to other technologies, and that punch cards produced fewer non-voted ballots for 1992, 1996, and 2000 races than either electronic machines or lever machines and produced virtually the same results as optical scan machines.

The defendants also rely on Dr. Herb Asher's findings that precincts with a higher concentration of poverty had a residual vote rate higher than average in Ohio. Thus, Dr. Asher pointed to race, education, and poverty as the cause. Dr. Asher also pointed to Appalachian counties where the population is less than one percent African-American and concluded that because there is a residual vote rate in those counties, education and income levels are contributing factors and one factor alone — race — cannot explain everything.

Prior to the trial, the district court denied the plaintiffs' motion for class certification. They appeal this decision. The district court then conducted a four-day bench trial and found in favor of the defendants. At the outset, the district court laid out the parties' arguments — it noted that according to the plaintiffs' expert, Dr. Kropf, the residual vote rate was 2.29% for punch cards, 1.15% for precinct-count optical scan, 1.04% for lever technology, and 0.94% for DRE technology. The defendants' expert produced similar results: 2.4% for punch cards, 2.0% for optical scan, 1.4% for level technology, and 1.0% for DRE technology. Based on these figures, the plaintiffs' alleged that punch cards and central-count optical scan technology (but not lever, precinct-count optical scan, or DRE technology) violate the Equal Protection and Due Process clauses.

Citing this Court's decision in Mixon v. State of Ohio, 193 F.3d 389 (6th Cir.1999), the district court determined, in a footnote, that rational basis is the appropriate standard for evaluating the voting systems. The footnote concluded by stating: "However, if the Court were to apply strict scrutiny, the Court's ruling would be the same." The court then stated that "[t]he primary thrust of this litigation is an attempt to federalize elections by judicial rule or fiat via the invitation to this Court to declare a certain voting technology unconstitutional and then fashion a remedy. This Court declines the invitation." According to the district court, determination of the voting process has always been left to the legislative branch, and "subject to constitutional amendment, that is where the determination should remain."

The court went on to state that "[t]he use of the punch card voting technology is neither confusing nor difficult to operate."4 Then, taking estimates for intentional undervoting into account and multiplying it by the residual vote rate across the state, the district court concluded that:

Viewing the plaintiffs' case in a light most favorable to them, leads to the conclusion that seven to thirteen voters out of 1000 [i.e., 0.7% to 1.3%] using punch card technology accidentally failed to record a vote in the year 2000 in the presidential election. Such a de minimis conclusion, assuming arguendo that it is justified, fails to prove a constitutional violation, either on a Due Process or Equal Protection analysis.5

Regarding the African-American plaintiffs' Voting Rights Act claim, the district court found that it "fail[s] because their alleged injury does not amount to a vote denial under § 2 of the Voting Rights Act." The court noted that plaintiffs can bring vote denial or vote dilution claims under the Act, but found that the plaintiffs brought only a vote denial claim and that the plaintiffs admitted that they were not denied physical access to the polls. Because, according to the district court, "[a] vote denial arises when a state or municipality employs a `practice or procedure' that results in the `actual' denial of the right to vote on account of race," see 42 U.S.C. § 1973(a), the plaintiffs did not bring a cognizable Voting Rights Act claim.6 The court stated that: "When coupled with the previously referenced de minimis affects of the punch card ballots, these facts do not allow this Court to conclude that an `actual' denial of the right to vote on account of race occurs."

Finally, the court concluded that "the operation of different voting systems by different counties within the same state does not amount to a violation of the Equal Protection Clause." Relying heavily on Justice Souter's dissenting opinion in Bush v. Gore, 531 U.S. 98, 134, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000) (Souter, J., dissenting), the district court concluded that states may freely use a variety of different voting technologies without running afoul of the Equal Protection Clause. Further, the court concluded that the defendants have a rational basis for continuing to utilize punch card technology in that it is cost effective and there are security concerns with electronic technology.

Before turning to the merits of the case, we address the defendants' argument that the plaintiffs lack standing. The district court stated that it "is of the view that the defendants have the better argument on the issue of standing, but declines the invitation to dismiss the case on standing." The district court erred in not determining whether the plaintiffs had standing. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (courts have an obligation to satisfy jurisdiction, including standing, even though the parties are prepared to concede it). The defendants argue that: (1) because one of the four plaintiffs did not vote in the previous election, she suffered no injury in fact, and (2) no plaintiff has standing to bring suit against Hamilton County, because none of the four voters have ever lived or voted in Hamilton County.

We reject the defendants' arguments and conclude that the plaintiffs have standing to bring suit against the State of Ohio and each of the four counties. It has been stipulated that at least one of the plaintiffs, all of whom are registered voters, resides in each defendant-county. Furthermore, the plaintiffs' standing does not depend on any injury suffered in the previous election, but rather on the probability that their votes will be miscounted in upcoming elections.

In Bryant v. Yellen, 447 U.S. 352, 100 S.Ct. 2232, 65 L.Ed.2d 184 (1980), the Supreme Court held that a group of farm workers had suffered an injury sufficient to confer standing based on an increased likelihood that land would be available for sale if a section of the Boulder Canyon Project Act had been applied to 160 acres of land in Imperial Valley, California. The Supreme Court concluded that the circuit court was correct in finding standing on this basis, even though the plaintiffs could not establish that they would be able to purchase land if the section of the Act were applied. Id. at 366-67, 100 S.Ct. 2232. The farm workers did in fact have standing, because it was unlikely that any of the land would be available for sale without the applicability of the section of the Act, and likely that the land would be available at less than market prices after the application of the Act. Id. at 368, 100 S.Ct. 2232. Bryant indicates that the increased probability of a future injury is sufficient to confer Article III standing.

The Supreme Court restated the elements of standing in Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). There, the Court emphasized that in order to have standing, a plaintiff must have suffered an injury in fact, which must be concrete and particularized, and actual or imminent, as opposed to conjectural or hypothetical. Id. at 560. Lujan, however, does not overrule Bryant. In fact, after Lujan, courts have continued to recognize that the increased risk of harm constitutes an injury sufficient to support standing. For example, although ultimately denying him relief, the Supreme Court considered the merits of the claims brought by a plaintiff who had been exposed to asbestos, but had not yet manifested any symptoms of asbestos-related disease. Metro-North Commuter R. Co. v. Buckley, 521 U.S. 424, 117 S.Ct. 2113, 138 L.Ed.2d 560 (1997). This Court has also recognized in the medical context that a risk of injury in the future can be grounds for standing. See Sutton v. St. Jude S.C., Inc., 419 F.3d 568, 573-74 (6th Cir.2005) (finding standing based on an increased risk of harm requiring medical monitoring); but see Natural Resources Def. Council v. EPA, 440 F.3d 476 (D.C.Cir.2006).

In the voting context, this Court and others have recognized that voters can have standing based on an increased risk that their votes will be improperly discounted. In Sandusky County Democratic Party v. Blackwell, 387 F.3d 565, 574 (6th Cir.2004) (per curiam), this Court held that the plaintiffs had standing to bring a claim on behalf of voters alleging that the Secretary of State's issuance of provisional ballots in Ohio elections violated the Help America Vote Act. The Act allowed voters to cast provisional ballots in those instances where their names could not be located on the list of qualified voters. Id. at 569. The Secretary of State issued a directive that would prohibit voters from casting provisional votes unless the poll worker was able to confirm that the voter was eligible to vote in that specific precinct. Id. at 571. On behalf of their members, i.e. voters, plaintiffs alleged that the directive violated the Act because the directive would allow "poll workers to withhold a provisional ballot from anyone who is not — according to the poll worker's on-the-spot determination at the polling place — a resident of the precinct in which the would-be voter desires to cast a provisional ballot." Id.

This Court held that the plaintiffs had standing, even though they were unable to name specific voters who would seek to vote at polling places that would be deemed to be wrong by voters:

Appellees have not identified specific voters who will seek to vote at a polling place that will be deemed wrong by election workers, but this is understandable; by their nature, mistakes cannot be specifically identified in advance. Thus, a voter cannot know in advance that his or her name will be dropped from the rolls, or listed in an incorrect precinct, or listed correctly but subject to a human error by an election worker who mistakenly believes the voter is at the wrong polling place. It is inevitable, however, that there will be such mistakes. The issues Appellees raise are not speculative or remote; they are real and imminent.

Id. at 574. So too here, the plaintiffs are unable to articulate which voter will be harmed in the future by deficient equipment.7 It is inevitable, however, that errors have been made and will be made in the future. As the district court found, "[a] flaw in the punch card ballot is its fragile nature and the fact that running the punch card ballots repeated times through the counting machinery will result in different results." The claims of the plaintiffs here are not speculative or remote, but real and imminent.

The plaintiffs here have alleged an injury in fact sufficient to confer Article III standing. The increased probability that their votes will be improperly counted based on punch-card and central-count optical scan technology is neither speculative nor remote.

The defendants also claim that there is no case or controversy because of the Help America Vote Act of 2002. Pub.L. No. 107-252, 116 Stat. 1666 (codified at 42 U.S.C. § 15304). Section 102 of the Act requires States receiving federal funds under the Act to discontinue the use of punch card systems in time for the first federal election of 2006. The Act also contains a section on voting system standards. 42 U.S.C. § 15481. The Act requires independent notice technology, the opportunity to change the ballot before it is cast, and an FEC compliant error rate. Ohio has declared its intentions to comply with the Act and thereby will receive federal funding under the Act. Id.

The mootness doctrine is grounded in Article III's "case or controversy" requirement. Thus, as mootness is a jurisdictional requirement, courts lack judicial power to entertain and decide moot cases. See Los Angeles County v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) ("[A] case is moot when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome.") (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)). The standard for determining whether a case has been mooted by the defendant's voluntary conduct "is stringent: `A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.' The `heavy burden of persua[ding]' the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness." Laidlaw, 528 U.S. at 189, 120 S.Ct. 693 (quoting United States v. Concentrated Phosphate Export Ass'n, 393 U.S. 199, 203, 89 S.Ct. 361,