ORDER

TIMOTHY J. CORRIGAN, District Judge.

When it comes to protecting the fundamental right to vote, African Americans have special reason to be vigilant. Indeed, the Voting Rights Act was passed in 1965 to "banish the blight of racial discrimination in voting."1 In this lawsuit, a group of African American leaders and voters, including a member of Congress, claim that 2011 amendments to Florida's early voting law disproportionately and adversely affect African American voters and are therefore not only unlawful under the Voting Rights Act, but also violate the United States Constitution.

All parties agree that there is no fundamental right to an early voting option. Nevertheless, 32 states have some type of early voting. Florida passed its first early voting law in 2004. Since 2006, Florida law has provided for up to 14 days of early voting, up through the Sunday before the Tuesday Election Day. Importantly, however, the law did not require that early voting be held on Sundays (a day that Plaintiffs say is very important to African American voters) and in practice, relatively few Florida counties conducted early voting on Sundays.

By most accounts, Florida's early voting system was working well and over the years early voting became increasingly popular, especially with African American voters. In 2011, the Florida legislature decided to change the early voting law. Of concern to Plaintiffs, the legislature did so without clearly identifying why the law needed to be changed, without creating much of a legislative record to document its reasons for the change, and against the advice of the Florida State Association of Supervisors of Elections, which represents the local supervisors of elections who actually administer the early voting law.

The amended law reduces the number of early voting days from no fewer than 12 to 8, starting with the Saturday ten days before Election Day and ending the Saturday two days before Election Day. During those eight days, local elections supervisors have discretion to offer between 6 and 12 hours of early voting each day. Unlike the old law, which the Plaintiffs are asking the Court to restore, the new law does mandate two Saturdays and one Sunday of early voting, although not the Sunday immediately before Election Day. Also, if local supervisors maximize the number of hours permitted by the new law (as almost all of the large counties in Florida plan to do for the upcoming general election), the total number of early voting hours — 96 — is the same as under the old law. Here is a chart comparing the early voting days and hours under the old and new laws:

                  Old Law     New Law

Total Days         12-14         8

Weekend Days        2-4          3

Sundays             0-2          1

Total Hours         96         48-96

Weekend Hours       16         18-36

Sunday Hours       0-16         6-12

While federal courts are reluctant to interfere with the enforcement of duly enacted laws of a state, the federal court does have an established and proper role as a guardian of all citizens' right to vote and to ensure that a state's voting laws are not contrary to the Voting Rights Act or the Constitution. The Court takes this obligation seriously; it has carefully reviewed the law and the record, and conducted a lengthy hearing on September 19, 2012. While acknowledging Plaintiffs' understandable concerns about how the change in the law might impact African American voters, the Court concludes that the new law will not impermissibly burden the ability of African Americans to vote. Plaintiffs have not shown that they are substantially likely to prevail on their claims that the new early voting law is unlawful under the Voting Rights Act or violates the Constitution. My reasoning follows.

I. Procedural Posture

On July 27, 2012, Plaintiffs2 initiated this action against Defendants Ken Detzner, in his official capacity as Florida Secretary of State (the Secretary), and Jerry Holland, in his official capacity as Supervisor of Elections for Duval County, Florida (Holland). In the Complaint (Doc. 1), Plaintiffs allege that certain recent amendments to Section 101.657(d) of the Florida Statutes pertaining to the time period for early voting in Florida, violate both the Florida and the United States Constitutions, as well as Section 2 of the Voting Rights Act (VRA), 42 U.S.C. § 1973(a). The Republican Parties of Broward, Clay, Sarasota, and Highlands Counties (Intervenor Defendants) have been permitted to intervene. Clerk's Minutes (Doc. 29); Clerk's Minutes (Doc. 38). This case is before the Court on Plaintiffs' Motion for Preliminary Injunction (Doc. 15) and Amended Memorandum in Support (Doc. 17; Plaintiffs' Memo), to which the Secretary, Holland, and Intervenor Defendants responded.3 See Secretary's Response (Doc. 30); Holland's Response (Doc. 28); Response of Broward, Clay and Sarasota Intervenors (Doc. 35; Intervenor Defendants' Response); see also Response of Highlands County Intervenor (Doc. 36, Ex. B). The Court held a hearing on the Motion for Preliminary Injunction on September 19, 2012, the record of which is incorporated by reference. Because the early voting period for the November general election is rapidly approaching, and certainty about the early voting law is important for all voters, the Court has expedited its review and decision.

II. Background

In 2004, the Florida legislature amended Florida's election laws to allow in-person early voting for the first time in Florida.4 See C.S.S.B. 2346, 2004 Fla. Sess. Ch. 2004-252, § 13. Prior to the amendments at issue in this lawsuit, Florida's "Early Voting Statute" provided as follows:

Fla. Stat. § 101.657(d) (2005 Early Voting Statute). Thus, the early voting period lasted 12-14 days, with 96 total hours of early voting, including eight hours of early voting during each of the two weekends immediately preceding the election. Id. The statute provided the supervisors of elections with discretion to determine whether the eight hours of weekend voting would take place on a Saturday, a Sunday, or be split between both. See Florida v. United States, 885 F.Supp.2d 299, 308-09, No. 1:11-cv-1428, 2012 WL 3538298, at *5 (D.D.C. Aug. 16, 2012).

On May 19, 2011, the Governor of Florida signed into law a bill amending several aspects of Florida's elections laws, including the 2005 Early Voting Statute. H.B. 1355, 2011 Fla. Sess. Law Serv. Ch. 2011-40 (HB 1355). This lawsuit pertains solely to the section of HB 1355 concerning the time period for early voting. Florida law now provides that:

Fla. Stat. § 101.657(d) (eff. May 19, 2011) (2011 Early Voting Statute). This amendment eliminates from four up to six5 days of early voting in Florida, and requires early voting to end on the Saturday before the election. Id. As such, supervisors of elections are now prohibited from conducting early voting on the Sunday before Election Day, as was previously allowed, but not required, under the old law. Id. In addition, supervisors of elections now have the discretion to allow as little as 48 hours of early voting (six hours a day for eight days), or as much as 96 hours of early voting (12 hours a day for eight days). Id.

Pursuant to Section 5 of the VRA, 42 U.S.C. § 1973c, five Florida counties6 must obtain advance approval, or "preclearance" from either 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); see also Florida, 885 F.Supp.2d at 303-05, 2012 WL 3538298, at *2. On August 1, 2011, the State of Florida filed a Complaint in the United States District Court for the District of Columbia seeking judicial preclearance of four of the changes to its voting laws contained in HB 1355, including the early voting amendments at issue in this lawsuit. See Florida, 885 F.Supp.2d at 305-07, 308-09, 2012 WL 3538298, at *3, *5. On August 16, 2012, a three-judge district court held, in relevant part:

Id. at 357, at *47. Following this decision, the State informed the Florida court that the supervisors of elections in the five covered counties intend to implement a 7 a.m. to 7 p.m. early voting plan with the full 96 hours of early voting, as conditionally approved by the court. See Florida, No. 1:11-cv-1428, ECF Nos. 158, 159 (filed Sept. 5-6, 2012). At the direction of the court, Florida then sought Section 5 preclearance of the 7 a.m. to 7 p.m. voting schedule for the five covered counties from the Attorney General, and on September 12, 2012, the Attorney General informed the State that "he would interpose no objection under Section 5 to the submitted set of voting changes." Plaintiffs' Notice of Filing (Doc. 31). Thus, "the five covered counties will offer the maximum 96 hours of early voting over an eight-day period, with hours from 7 a.m. to 7 p.m., and that schedule will be the benchmark against which any subsequent early voting changes proposed by the covered counties must be reviewed." Id.

In this case, Plaintiffs seek a declaratory judgment that the 2011 Early Voting Statute violates both the Florida and the United States Constitutions, as well as Section 2 of the VRA. See Complaint at 24. In addition, Plaintiffs seek an injunction prohibiting Defendants

Plaintiffs' Motion at 1. Plaintiffs "seek this relief in time for the general election to be held on November 6, 2012, and to have it applied throughout the State of Florida or, in the alternative, in Duval County, Florida only." Id. at 1-2. However, at the September 19, 2012 hearing, Plaintiffs clarified that this lawsuit does encompass the entire State of Florida, and is not limited to Duval County only.7

III. Standard Governing Preliminary Injunctions

A court may grant a preliminary injunction if the moving party establishes:

Ga. Latino Alliance for Human Rights v. Gov. of Ga., 691 F.3d 1250, 1262 (11th Cir.2012) (quoting McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998)). The Eleventh Circuit instructs that "`[a] preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly established the `burden of persuasion' as to the four requisites.'" McDonald's Corp., 147 F.3d at 1306 (quoting All Care Nursing Serv., Inc. v. Bethesda Memorial Hosp., Inc., 887 F.2d 1535, 1537 (11th Cir.1989)). Moreover,

United States v. Alabama, 443 Fed.Appx. 411, 420 (11th Cir.2011) (quoting Ne. Fla. Chapter of Ass'n of Gen. Contractors of Am. v. City of Jacksonville, 896 F.2d 1283, 1285 (11th Cir.1990)).

IV. Discussion8

"No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live." Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964). Indeed, the Eleventh Circuit has referred to voting as "about the most important thing there is." Citizens for Police Accountability Political Comm. v. Browning, 572 F.3d 1213, 1221 (11th Cir.2009). Thus, the Court carefully considers this case with the understanding that the right to vote is a "fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the rights of citizens to vote must be carefully and meticulously scrutinized." Reynolds v. Sims, 377 U.S. 533, 561-62, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964).

A. Substantial Likelihood of Success9

i. Voting Rights Act-Section 2

Plaintiffs maintain that the 2011 changes to the Early Voting Statute implemented by HB 1355 result in "a new early voting scheme that has the effect of denying African American voters, a protected minority, an equal chance to participate in the electoral process," in violation of Section 2 of the VRA. Plaintiffs' Memo at 23, 26. In his Response, the Secretary maintains that Plaintiffs cannot demonstrate a violation of Section 2 for several reasons. Secretary's Response at 10-20.

Section 2 of the VRA "was designed as a means of eradicating voting practices that minimize or cancel out the voting strength and political effectiveness of minority groups." Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 479, 117 S.Ct. 1491, 137 L.Ed.2d 730 (1997) (internal quotations omitted). As such, the Supreme Court instructs that the VRA "should be interpreted in a manner that provides the broadest possible scope in combating racial discrimination." Chisom v. Roemer, 501 U.S. 380, 403, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991) (internal quotations omitted). Significantly, "[i]n 1982, Congress amended section 2 to clarify that a plaintiff may establish a violation by a showing of discriminatory results alone." Burton v. City of Belle Glade, 178 F.3d 1175, 1196 (11th Cir.1999).10 Thus, as amended, Section 2 of the VRA provides:

42 U.S.C. § 1973(a).11 According to the statute, a violation of Section 2 is established if:

42 U.S.C. § 1973(b). The question of whether "political processes" are "equally open" depends on "a searching practical evaluation of the past and present reality, and on a functional view of the political process." Gingles, 478 U.S. at 45, 106 S.Ct. 2752 (internal quotations omitted). Indeed, "[t]he essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives." Id. at 47, 106 S.Ct. 2752.

The Eleventh Circuit explains that "a plaintiff must prove invidious discrimination in order to establish a violation of section 2 of the Voting Rights Act." Nipper v. Smith, 39 F.3d 1494, 1524 (11th Cir.1994); see also Osburn v. Cox, 369 F.3d 1283, 1289 (11th Cir.2004). Accordingly, to prove a violation of Section 2, a plaintiff must demonstrate either:

Nipper, 39 F.3d at 1524; see also Osburn, 369 F.3d at 1289. The Eleventh Circuit recognizes "two distinct types of discriminatory practices and procedures [that] are covered under section 2: those that result in `vote denial' and those that result in `vote dilution.'" Burton, 178 F.3d at 1196. "Vote denial occurs when a state employs a `standard, practice, or procedure' that results in the denial of the right to vote on account of race." Johnson v. Gov. of Fla., 405 F.3d 1214, 1227 n. 26 (11th Cir.2005).12 This case raises a "vote denial" claim.13 see Plaintiffs' Memo at 25.

1. Discriminatory Intent

The Court will first consider whether Plaintiffs can establish a substantial likelihood of success on their Section 2 claim by demonstrating that the changes to Florida's Early Voting Statute were made with discriminatory intent. "Discriminatory purpose may be established by proof that the [legislature] used race as a substantial or motivating factor" in its decision to amend Florida's Early Voting Statute. Burton, 178 F.3d at 1189. In making this determination, the Court considers "all available direct and circumstantial evidence of intent." See id. In Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), the Supreme Court set forth the following relevant evidentiary factors: (1) whether the law has a disproportionate impact on a particular group; (2) "[t]he historical background of the decision"; (3) "[t]he specific sequence of events leading up to the challenged decision," including whether the decision was a "[d]eparture[] from the normal procedural sequence" or "if factors usually considered important ... [would] strongly favor" a contrary decision; and (4) the legislative history of the decision, especially "contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports." Id. at 266-68, 97 S.Ct. 555.

As to the first factor, the Supreme Court states that "[t]he impact of the official action whether it `bears more heavily on one race than another,' may provide an important starting point." See id. at 266, 97 S.Ct. 555 (quoting Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976)) (internal citations omitted). As discussed further below, the Court finds that the amendments to the Early Voting Statute will have a disproportionate effect on minority voters because minority voters disproportionately use early voting. See infra pp. 1251-52. However, as the Florida court observed, to the extent the counties implement hours that will not result in retrogression, i.e., the full 96-hour voting plan available under the new law, "that will be a significant factor in favor of a finding of nondiscriminatory purpose." Florida, 885 F.Supp.2d at 350-51, 2012 WL 3538298, at *41. Because, as addressed in the next section, the evidence before the Court does not demonstrate that the changes will deny minorities equal access to the polls, the otherwise disproportionate effect of the amendments does not weigh heavily in favor of finding discriminatory purpose. see infra Part IV. A.i.2.

Turning to the second factor, the Supreme Court instructs that "[t]he historical background of the decision is one evidentiary source, particularly if it reveals a series of official actions taken for invidious purposes." see Arlington Heights, 429 U.S. at 267, 97 S.Ct. 555. Plaintiffs appear to address this factor by arguing that early voting was initially adopted in Florida as a response to the 2000 election, where a disproportionate percentage of African American voters were disenfranchised. see Plaintiffs' Memo at 4-6. However, Plaintiffs provide the Court with no evidence to suggest that the problems arising in the 2000 election were caused by a discriminatory intent on behalf of government officials. see Duval County Election Reform Task Force-Final Report June 12, 2001 (Doc. 17, Ex. C) at 6 ("The Task Force found, however, no evidence of conspiracy or intentional wrongdoing."); see also Jacksonville Coal. for Voter Prot. v. Hood, 351 F.Supp.2d 1326, 1333-34 (M.D.Fla. 2004). Thus, as in Hood, the Court simply cannot extrapolate from that event a discriminatory intent in this case. See Hood, 351 F.Supp.2d at 1333.

With respect to the third factor, Plaintiffs contend that irregularities in the legislative procedures leading to the adoption of the amendment demonstrate a discriminatory intent. Specifically, Plaintiffs rely on the Affidavit of Ion V. Sancho, Supervisor of Elections for Leon County (Doc. 17, Ex. E; Sancho Aff.), and the Deposition of David Stafford, Supervisor of Elections for Escambia County and President of the Florida State Association of Supervisors of Elections (Doc. 17, Ex. F; Stafford Dep.). Mr. Sancho refers to the "very uncommon" three-minute limit on public comment during the April 26, 2011 Senate Budget Committee Hearing on HB 1355, Sancho Aff. ¶¶ 8-9, and Mr. Stafford states that it was "unusual" that the amendments were effective immediately, rather than at some point after enactment. Stafford Dep. at A5134-35. In addition, Plaintiffs also cite to the use of a "strike-all" amendment to introduce these changes the day before the amendment was taken up by the Senate Rules Committee, such that there was less time to analyze and prepare comments regarding the proposed changes. see Plaintiffs' Memo at 7 n. 3; Stafford Dep. at A5085-86.

The Court finds, however, that this evidence is not sufficient to demonstrate that the sequence of events leading up to the early voting changes was particularly unusual. Indeed, the Florida court considered largely the same evidence in its analysis of the legislative purpose behind HB 1355 in the context of changes to the inter-county mover laws. see Florida, 885 F.Supp.2d at 382-84, 2012 WL 3538298, at *72-74. Upon a more complete record, and with substantially more time to consider that record, the Florida court found that:

Id. at 384, at *73-74 (internal citations omitted). The Florida court concluded that "[b]ased on the record before us ... we are simply unable to determine whether the legislative process was unusual." Id. at 356, at *46. This Court finds no evidence in the record before it (which is substantially the same as the record before the Florida court) to support a departure from those findings, nor are the differences between the legislative process regarding the inter-county mover changes and the early voting changes, both part of HB 1355, sufficient to suggest that the Florida court's findings in this respect are not applicable here. While agreeing that the legislative record regarding the reasons for the early voting changes is somewhat meager, this is not enough to support a finding of discriminatory intent.

Next, the Court considers the legislative history of the decision, especially "contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports." Arlington Heights, 429 U.S. at 266-68, 97 S.Ct. 555. Plaintiffs rely on State Senator Mike Bennett's statement during the Senate floor debate that "he did not want to make it easier for people to vote, but rather that it should be harder to vote-as it is `in Africa.'" see Florida, 885 F.Supp.2d at 354 & n. 66, 2012 WL 3538298, at *44 & n. 66 (setting forth Senator Bennett's statement in full). Plaintiffs contend that this contemporaneous statement by a member of the legislative body reflects discriminatory intent. see Plaintiffs' Memo at 29. The Florida court also reviewed Senator Bennett's statement, and reasoned that "[w]hether or not Senator Bennett actually intended his statement to have racial undertones, it certainly can be read that way. Hence, Senator Bennett's remarks could be considered evidence of discriminatory purpose." Florida, 885 F.Supp.2d at 354, 2012 WL 3538298, at *44. However, the Florida court found that Senator Bennett's is the only statement suggesting a discriminatory purpose on the part of the Florida legislature, and that Senator Bennett "was neither a sponsor nor a primary proponent of HB 1355, and did not play an important role in passage of the bill." Id. The Florida court observes that "although Senator Bennett was the Senate President Pro Tempore at the time, that office has limited authority, and there is no evidence it played any role in passage of the amendments." Id. As such, the Florida court concluded that "Senator Bennett's single statement is not enough to suggest that his purpose, whatever it was, represented the purpose of the Florida legislature as a whole. Accordingly, ... the `contemporaneous statements' factor does not materially weigh in favor of a finding of discriminatory purpose." Id. at 355, at *45. This Court finds no reason in the record here to depart from the Florida court's analysis.

Moreover, this Court also considers the Secretary's evidence of contemporaneous statements by legislators suggesting that the early voting amendments were intended to increase flexibility and make the early voting process more efficient. see Secretary's Response at 7-8. For example, State Representative Joseph A. Gibbons stated that "we are just simply trying to make it so that the local Supervisor[s] of Elections who know their communities have some flexibility when setting early voting hours." see April 20, 2011 House Floor Sess. Tr. (Doc. 30, App'x V4 at 1416). The Secretary argues that the amendments reflect a "compromise" in reducing the number of days of early voting, but granting greater flexibility with respect to hours. see May 4, 2011 Senate Floor Sess. Tr. (Doc. 30, App'x V4 at 1418-21).

Plaintiffs also submit the testimony from two supervisors of elections who contend that, contrary to the position of the legislators, the changes to early voting will not actually save money, and may in fact increase the cost of early voting. see Sancho Aff. ¶ 12; Stafford Dep. at A5060. In addition, Plaintiffs rely on the Florida State Association of Supervisors of Elections' submission to the Florida Senate regarding these changes which states that the supervisors believe a 15-day time period is "imperative" to a smooth general election and "best serves the voting public." See Plaintiffs' Memo, Exs. H and I. Plaintiffs also provide evidence that the Florida legislature did not conduct any study or analysis of the effect these changes would have prior to amending the statute. See Plaintiffs' Memo, Ex. J at A7069. The Court has considered this evidence, and while the failure of the legislature to study more fully the impact of the changes is concerning, in light of all the evidence, the Court cannot conclude that it warrants a finding of discriminatory intent. See Florida State Conference of NAACP v. Browning, 569 F.Supp.2d 1237, 1251 (N.D.Fla.2008) ("It is well established that, in the election context, there is no need for an `elaborate, empirical verification of the weightiness of the State's asserted justifications.'" (quoting Timmons v. Twin Cities Area New Party, 520 U.S. 351, 364, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997))). Accordingly, the undersigned agrees with the Florida court that the evidence regarding the legislative process and contemporaneous statements of the legislators do not support a finding of discriminatory purpose.

Finally, Plaintiffs also submit excerpts from a deposition of James A. Greer, former chairman of the Republican Party of Florida, taken in an unrelated case. Deposition of James Greer (Doc. 17, Ex. L; Greer Dep.). In these excerpts, Mr. Greer states that, while he was the chairman of the Republican Party, he was part of a meeting in which "not letting blacks vote" and "suppressing black voters in Florida" was discussed. Greer Dep. at 369, 387. He also refers to a meeting where unidentified members of the "House and Senate" were discussing "ways to restrict voters from voting." Id. at 609. The Court is deeply troubled by this testimony and its implications. However, given the limited portion of the deposition included in Plaintiffs' exhibit, the Court is unable to discern the context or time frame in which these matters were allegedly discussed. Moreover, the record contains no evidence connecting these statements to HB 1355 generally, or the amendments to the Early Voting Statute specifically. Without further development of these allegations made by Mr. Greer or how they might relate to the enactment of the 2011 Early Voting Statute, Mr. Greer's testimony cannot serve as evidence of discriminatory purpose in its passage.

Even considering the entire record in the aggregate, the Court finds that Plaintiffs have failed to demonstrate a substantial likelihood of success on their claim that the amendments to Florida's Early Voting Statute were made with the intent to discriminate against African American voters. However, because a Section 2 violation can be proven in an alternative way, this finding is not fatal to Plaintiffs' VRA claim.

2. The "Results" Test

The Court will next consider whether Plaintiffs have demonstrated that application of the 2011 Early Voting Statute in Florida will "result[] in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color...." See 42 U.S.C. § 1973(a). While it is well-settled that a plaintiff need not prove discriminatory intent to establish a Section 2 violation, Johnson, 405 F.3d at 1227, the question remains as to whether a claim of disparate impact alone is sufficient to state a vote denial claim under Section 2. See Simmons, 575 F.3d at 35 & n. 10 ("Whether a claim of mere disproportionality alone supports a `resulting' claim is not clear under § 2 and is a difficult question we need not reach."); Johnson, 405 F.3d at 1229 n. 30 ("[T]he deep division among eminent judicial minds on this issue demonstrates that the text of Section 2 is unclear."). However, despite this lack of clarity, it appears that in the Eleventh Circuit a plaintiff must demonstrate something more than disproportionate impact to establish a Section 2 violation. See Johnson, 405 F.3d at 1228 ("Despite its broad language, Section 2 does not prohibit all voting restrictions that may have a racially disproportionate effect."); see also id. at 1237-38 (Tjoflat, J., specially concurring, joined by Pryor, J.); Osburn, 369 F.3d at 1289; Nipper, 39 F.3d at 1515.14 Moreover, as previously noted, present-day "vote denial" cases are uncommon, and as such, courts have yet to develop a clear analytical framework for this type of case, unlike the more common vote dilution claim. See Simmons, 575 F.3d at 42 n. 24 (citing commentary that "[w]hile Gingles and its progeny have generated a well-established standard for vote dilution, a satisfactory test for vote denial cases under Section 2 has yet to emerge... [and] the Supreme Court's seminal opinion in Gingles ... is of little use in vote denial cases" (internal quotations omitted)). Nonetheless, the Court will apply the standard articulated by the Eleventh Circuit and consider whether, based on an objective analysis of the totality of the circumstances, the application of the 2011 Early Voting Statute in Florida will act to exclude African American voters from "meaningful access" to the polls, on account of race. See Osburn, 369 F.3d at 1289; Hood, 351 F.Supp.2d at 1333, 1335.

Both parties rely heavily on the findings of the Florida court; thus, the Court will first consider the extent to which that court's decision informs the analysis here. In Florida, the question before the three-judge panel under Section 5 of the VRA was "simply whether the burdens [imposed by the new law] are sufficiently material to result in retrogression with respect to minority voters' exercise of their voting rights." Florida, 885 F.Supp.2d at 318, 2012 WL 3538298 at *14. In the absence of any evidence to the contrary, and given that the burden was on Florida to establish nonretrogression, the Florida court proceeded "on the assumption that the counties will utilize the minimum rather than the maximum permitted hours" of early voting. Id. at 329, at *23. Therefore, the court considered whether the State could prove 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." Id. at 303, at *2. After analyzing how the changes to Florida's Early Voting Statute would impact African American voters, in comparison to the prior early voting law, the court concluded that:

Id. at 321, at *17 (emphasis added). However, the Florida court then found that if the counties were to utilize the maximum number of early voting hours (96), on a standard 7 a.m. to 7 p.m. schedule, "the negative effect of reducing the number of days from 12 to 8 would likely be offset by the ameliorative effects of adding non-working weekday hours, a Sunday, and additional weekend hours." Id. at 334-38, at *27-30 (emphasis added). Finally, the Florida court cautioned that "[w]e do not, however, reach any conclusions about other permutations of early voting hours that the covered counties might offer." Id. at 337, at *30.

In contrast, here Plaintiffs, not the State, bear the burden of proof and must establish that the 2011 Early Voting Statute denies African Americans equal access to the political process "on account of race." The Court need not assume that the minimum number of hours will be implemented by the supervisors of elections, and indeed, Plaintiffs have provided the Court with no evidence to suggest that any supervisor would elect such a plan. Rather, based on the Notice of County Early Voting Plans15 (Doc. 33), 27 of the 62 non-covered counties will allow the maximum number of early voting hours. Thus, when the five precleared counties are factored in, 32 of Florida's 67 counties will offer the maximum number of early voting hours available under Florida law, including Duval, Miami-Dade, Hillsborough, Orange, Pinellas, Palm Beach, Broward, Escambia, and Leon Counties, as well as most of Florida's other most populous counties. Of those counties not offering the full 96 hours, seven of them plan to offer 80 or more hours of early voting, and not one county has announced plans to offer the 48-hour minimum. Indeed, the fewest hours of early voting currently scheduled is 58 hours in three smaller counties, and those three counties are the only ones with plans to offer less than 60 hours of early voting.

Moreover, in contrast to the Section 5 case before the Florida court, this Court, as Plaintiffs conceded at the hearing, is not conducting a "retrogression" analysis, meaning, this Court is not comparing the new statute against the old to determine whether these voting changes will "`worsen the position of minority voters' in comparison to the preexisting voting standard, practice, or procedure." See Florida, 885 F.Supp.2d at 319, 2012 WL 3538298, at *15 (quoting Reno v. Bossier Parish Sch. Bd., 528 U.S. 320, 324, 120 S.Ct. 866, 145 L.Ed.2d 845 (2000) superseded on other grounds by 42 U.S.C. § 1973c(c)). Rather, the task before this Court under Section 2 of the VRA is to conduct a "practical evaluation of the `past and present reality'" to determine whether, under the totality of the circumstances, application of the 2011 Early Voting Statute serves to deny African American voters equal access to the political process. See Gingles, 478 U.S. at 45, 106 S.Ct. 2752; 42 U.S.C. § 1973(b); see also Harris v. Graddick, 593 F.Supp. 128, 132 (M.D.Ala.1984) ("In short, section 2 is violated if the result of a practice is that minority voters cannot participate in the electoral process on the same terms and to the same extent as non-minority voters."). The important distinction between a Section 5 and a Section 2 claim plays a significant role in the Court's decision in this case.

First, Plaintiffs argue that the 2011 Early Voting Statute disproportionately and adversely affects minority voters. In support, Plaintiffs submit the Expert Report of Professor Paul Gronke, Ph.D. (Doc. 17, Ex. B; Prof. Gronke Expert Report), the Declaration of Professor Daniel A. Smith, Ph.D. (Doc. 17, Ex. N; Prof. Smith Decl.), and the Declaration of Professor Charles Stewart, III, Ph.D. (Doc. 17, Ex. O; Prof. Stewart Decl.). Professors Gronke and Stewart also provided expert reports in the Florida case. See Florida, 885 F.Supp.2d at 321-24, 2012 3538298, at *17-18. Upon consideration of this evidence, the Florida court found that "minority voters will be disproportionately affected by the changes in early voting procedures because they disproportionately use early in-person voting." Id. at 322, at *17. Although the Florida court was specifically concerned with minority voting in the five covered counties, the court made this finding with respect to the state as a whole. Id. Upon review of the evidence before this Court, the undersigned finds no reason to depart from the findings of the Florida court in this respect, and Defendants have presented the Court with no evidence to undermine those findings. Accordingly, the Court accepts that the changes to the early voting laws disproportionately affect minority voters because minority voters disproportionately use early voting. Id.

Second, Plaintiffs contend that not only does HB 1355 disproportionately affect minority voters, but that the elimination of the days of early voting that were disproportionately used by minority voters, i.e., the first week of early voting and the Sunday before the election, "has the effect of denying African American voters, a protected minority, an equal chance to participate in the electoral process." Plaintiffs' Memo at 26. Plaintiffs rely on the aforementioned expert reports, two of which were also before the Florida court. In addition, Plaintiffs provide evidence that the changes to the early voting laws will cause longer lines, crowding, and confusion at the polls, which will in turn discourage some reasonable minority voters from waiting to cast their ballots. See Plaintiffs' Memo at 19, Ex. S ¶ 19. Because the Florida court discussed this evidence at length, the Court need not recite it here.16 See Florida, 885 F.Supp.2d at 329-34, 2012 WL 3538298, at *23-26. In response, the Secretary argues that these changes will not deny minorities meaningful access to the ballot and, in support, submit the Affidavit of John O. Boynton, III, Deputy Florida Secretary of State (Doc. 30, App'x V4 at 1454-55; Boynton Aff.) who states that "[a]t the primary election on August 14, 2012, with [the 2011 Early Voting Statute in effect], the number of early voters was about 52 percent higher than the number of early voters in the last presidential-primary election in August 2008." See Boynton Aff. ¶ 8.

Upon review of this evidence, the Court does not disagree with the Florida court's conclusion that if Florida counties "offer only 48 hours of early voting (i.e., only 6 hours per day) as the new law permits," that change could impose a material burden on "African-American voters' effective exercise of the electoral franchise." See Florida, 885 F.Supp.2d at 329, 2012 WL 3538298, at *23. However, those are not the circumstances before this Court in considering this Motion for Preliminary Injunction; rather, this Court must consider whether under the totality of the circumstances the 2011 Early Voting Statute denies African American voters equal access to the polls in the upcoming general election. This analysis includes consideration of the ameliorative effects of the amendments. As the Florida court recognized, while it is possible that "the reduction in days-considered alone — would make it more difficult for some voters to get to the polls," id. at 334, at *27, the 2011 Early Voting Statute did more than simply cut the number of early voting days. Id. The new law allows supervisors to increase the number of voting hours in a day from 8 to 12, thereby providing more "morning and evening hours that the record suggests would be most convenient for weekday voters" and "more extended [hours] than those offered in any recent election." Id. at 334, at *27. Because many supervisors, especially those in larger counties, are implementing a 7 a.m. to 7 p.m., or 8 a.m. to 8 p.m., schedule for the upcoming November election, most minority voters in Florida will likely have access to before and after work hours during the weekday.17

Moreover, "the new early voting statute requires the covered counties to offer early voting for at least six hours on the Sunday nine days before Election Day." Id. at 335, at *28. While Plaintiffs are concerned about the loss of the Sunday immediately preceding the election, Sunday voting, merely optional under the old law, was not available to voters in most counties in Florida prior to the 2011 amendments. See Boynton Aff. ¶ 5 ("At the 2008 primary and general elections, only 12 of 67 counties offered Sunday early voting, and, of these, only six offered early voting on the last Sunday before the election."); see id. ¶ 7 ("At the 2010 general election, 15 of 67 counties offered Sunday early voting, and, of these, only ten offered early voting on the last Sunday before the election."). As such, considering the state as a whole, the new statute will actually serve to increase the availability of Sunday voting, the very day Plaintiffs say is most important to African American voters. Notably, the Florida court rejected the argument that "it is the Sunday immediately before Election Day that is particularly important," and found instead that "there is evidence in the record to suggest that opening the polls on the previous Sunday would also facilitate voting by African-American voters." See Florida, 885 F.Supp.2d at 335, 2012 WL 3538298, at *28. The evidence here does not persuade this Court otherwise.18

Additionally, the new law will allow supervisors to increase the overall number of weekend voting hours on both weekends preceding the election. If the maximum number of hours are allowed, "[t]he total would then be 36 weekend hours of early voting (12 hours on each of 3 weekend days), for a net gain of 20 more weekend hours of early voting than under the [old law]." Florida, 885 F.Supp.2d at 336, 2012 WL 3538298, at *29. However, even if the supervisors elected to provide the minimum amount of weekend voting, this would still result in 18 weekend voting hours (as opposed to 16 previously), including six mandatory hours of Sunday voting.19 The Florida court recognized the significance of weekend hours, relying on the testimony of Florida election officials that "based on their experience, ... expanded weekend hours would provide increased accessibility for many minority voters." Id. Thus, the Court is unconvinced that the loss of an optional Sunday, that few counties used, outweighs the gain of expanded weekend voting hours, including a mandatory Sunday.

In addition, the Florida court found that "many of the concerns ... with a contraction of the early voting period to only 48 hours are not likely to materialize (certainly not to the same extent) if the full 96 hours of early voting are maintained on a standard 7 a.m. to 7 p.m. schedule." Id. Despite the testimony of representatives and volunteers from minority voting rights groups that the two-week period has been essential to coordinating the logistics of Get Out The Vote efforts (GOTV), the Florida court found that:

Id. The court also concluded that the concerns regarding overcrowding and confusion at polling places would not be as much of an issue, if at all, if supervisors implemented the expanded voting hours. Id. at 337-38, at *30. While the Court acknowledges that many counties are not implementing the full 96-hour voting period, it nevertheless appears that most supervisors are implementing a voting plan in relation to the size of their county. Thus, the larger urban counties are using the full 96-hour period allowed by the new law, while the smaller rural counties are using fewer hours.20 No county has said it will only use the minimum 48 hours allowed by the law. Thus, the evidence before the Court at this time does not support a finding that the current Early Voting Statute will result in such a substantial increase in lines, crowding and confusion that minority voters will be unequally burdened.21

The Court also considers the 2011 Early Voting Statute outside the context of how it compares to the prior Florida statute. As Plaintiffs conceded at the hearing, there is no fundamental right to early voting. Indeed, 18 states do not allow early voting at all. See "Absentee and Early Voting" National Conference of State Legislatures (Doc. 30, App'x V4 at 1427-31; NCSL Report). Although Florida's eight days of early voting is below the 19-day average across all 32 states, the early voting period in states that do allow it ranges from 4 days to 45 days. Id.22 Moreover, only approximately 12 of the 32 states with early voting "require that early vote centers be open on at least one Saturday or Sunday during the early voting period." Id. Other states with early voting also "give county or local officials the authority to determine the hours for early voting." Id. Thus, acceptance of Plaintiffs' argument that the eight days of early voting allowed by the Florida legislature violates Section 2 could have far-reaching implications. Cf. Hood, 351 F.Supp.2d at 1335-36. As explained in Hood:

Id.; see also id. at 1332-33 & n. 2. Rather, the Court must consider whether the State of Florida, having decided to allow early voting, has adopted early voting procedures that provide equal access to the polls for all voters in Florida.

Because Florida's Early Voting Statute allows early voting during non-working hours, as well as voting during the weekend, including one Sunday, voting times which are important to African American voters, as well as to GOTV efforts, the Court cannot find that the 2011 Early Voting Statute denies equal access to the polls.23 The Court recognizes that the new law gives the county supervisors limited discretion to set the number of early voting hours, however, Plaintiffs have provided no evidence to suggest that the supervisors will set voting hours in a discriminatory manner, nor does the evidence with respect to the early voting hours already scheduled for the November 6, 2012 Election support such a finding. Under the totality of the circumstances, the Court cannot conclude that application of the 2011 Early Voting Statute will result in a denial or abridgement of the right to vote on account of race.24 Accordingly, because Plaintiffs can satisfy neither the discriminatory intent nor the discriminatory results tests, they have failed to show a substantial likelihood of success on the merits of their Voting Rights Act claim.

ii. Constitutional Claims

Plaintiffs alternatively contend that the changes to Florida's Early Voting Statute deny African Americans equal protection of the laws and deprive African Americans of the right to vote on account of race in violation of the Fourteenth and Fifteenth Amendments. See Plaintiffs' Memo at 26. As Plaintiffs correctly concede, to establish a violation of the Constitution on the basis of racial discrimination, Plaintiffs must demonstrate that the challenged act has "a discriminatory purpose and effect." See Plaintiffs' Memo at 26; see also Burton, 178 F.3d at 1188-89 ("[T]o establish a violation of either the Equal Protection Clause of the Fourteenth Amendment or the Fifteenth Amendment, [plaintiffs] must show that the [defendant's] decision or act had a discriminatory purpose and effect."). As discussed above, Plaintiffs fail to demonstrate that the Florida legislature amended the Early Voting Statute with a racially discriminatory purpose. See supra Part IV.A.i.1. Thus, Plaintiffs cannot demonstrate a substantial likelihood of success on their Fourteenth or Fifteenth Amendment claims.25 See Hood, 351 F.Supp.2d at 1336-37.

B. Remaining Factors

Because Plaintiffs have failed to establish a substantial likelihood of success on the merits of their claims, Plaintiffs' request for preliminary injunctive relief is due to be denied and the Court need not consider the remaining factors relevant to the issuance of a preliminary injunction. See id. at 1336.

V. Conclusion

Upon review of the evidence before the Court and the relevant law, the Court finds that, at this stage in the proceedings, Plaintiffs have failed to demonstrate that they are substantially likely to prove that the 2011 changes to the Early Voting Statute were made with the intent to discriminate against minority voters, or that Florida's current Early Voting Statute operates to deny or abridge African Americans' right to vote on account of their race. Without such a showing, the Court cannot enjoin a statute lawfully enacted by the Florida legislature. It may be of some comfort to those who view this statute as, at the least, bad policy, to note that a substantial number of Florida's counties, including the vast majority of Florida's most populous counties, plan to implement an early voting plan with the maximum number of hours allowed under the new law, the effect of which, according to the Florida court, is likely to be "non retrogressive."

It is

ORDERED: