As a final note, the district court failed to consider
Crawford when evaluating Ohio's interests due to its nearly wholesale reliance on our vacated decision in
NAACP, which went to great lengths to distinguish
Crawford’s ready acceptance of voter fraud and voter confidence as sufficient justifications for a regulation that imposed only a “limited burden on voter's rights.”
Crawford, 553 U.S. at 203, 128 S.Ct. 1610 (Stevens, J., op.). To the extent it relied on our now-vacated decision, the district court erred.
NAACP is a different case, as S.B. 238 at that time still included the Secretary of State's Directive 2014-17 that “eliminate[ed] all evening voting hours for non-presidential elections and [ ] provid[ed] only one Sunday of [early in-person] voting.”
NAACP, 768 F.3d at 539;
see R. 127-14, Settlement, PID 6775–77 (removing Directive 2014-17 and establishing an agreed-upon voting schedule).
NAACP therefore analyzed Ohio's law as one imposing a burden that was “significant although not severe,” requiring
more justification than the “modest” burden the district court identified in this case, an interest we here hold to be minimal. The district court therefore used
NAACP as an imperfect legend, and applied it to a different map. Its reliance on the vacated
NAACP decision was not sound. Moreover, the vacated opinion in
NAACP evinced a certain dissatisfaction with the
Crawford Court's ruling and a preference for the view of dissenting Justices. To the extent the district court, by relying on
NAACP, effectively resuscitated reasoning at odds with the holding of
Crawford, the district court ignored a fundamental of our “hierarchical judicial system,” which precludes a lower court from “declar[ing] a statute unconstitutional just because [it] thinks ... that the dissent was right and the majority wrong.”
Frank, 768 F.3d at 750.