                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 16-1605


BARBARA H. LEE; GONZALO J. AIDA BRESCIA; DEMOCRATIC PARTY
OF VIRGINIA,

                Plaintiffs - Appellants,

           v.

VIRGINIA STATE BOARD OF ELECTIONS; JAMES B. ALCORN, in his
capacity as Chairman of the Virginia State Board of
Elections; DR. CLARA BELLE WHEELER, in her capacity as Vice-
Chair of the Virginia State Board of Elections; SINGLETON B.
MCALLISTER, in her capacity as Secretary of the Virginia
State Board of Elections; VIRGINIA DEPARTMENT OF ELECTIONS;
EDGARDO CORTES, in his capacity as Commissioner of the
Virginia Department of Elections,

                Defendants - Appellees.

-------------------------------------

VIRGINIA ELECTION OFFICIALS AND VOTERS; JUDICIAL EDUCATION
PROJECT,

                Amici Supporting Appellees.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:15-cv-00357-HEH-RCY)


Argued:   September 22, 2016                Decided:   December 13, 2016


Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.
Affirmed by published opinion.        Judge Niemeyer   wrote   the
opinion, in which Judge Shedd and Judge Agee joined.


ARGUED: Bruce Van Spiva, PERKINS COIE LLP, Washington, D.C., for
Appellants. Mark Fernlund Hearne, II, ARENT FOX LLP, St. Louis,
Missouri, for Appellees. ON BRIEF: Marc E. Elias, Elisabeth C.
Frost, Amanda R. Callais, Washington, D.C., Joshua L. Kaul,
PERKINS COIE LLP, Madison, Wisconsin, for Appellants.    Dana J.
Finberg, Sara T. Schneider, San Francisco, California, Kirsten
Hart, Los Angeles, California, Stephen S. Davis, ARENT FOX LLP,
Clayton, Missouri, for Appellees. Michael A. Carvin, Anthony J.
Dick, Stephen A. Vaden, JONES DAY, Washington, D.C., for Amici
Curiae.




                               2
NIEMEYER, Circuit Judge:

       The plaintiffs challenge Virginia Code § 24.2-643(B), the

voter identification law enacted as part of “SB 1256.”                         2013 Va.

Acts ch. 725.        They allege that the statutory requirement that

voters present photo identification when they vote or shortly

thereafter     violates    the    Voting          Rights    Act    of   1965    and    the

Constitution.

       The   Virginia     law    provides:           (1)    that    all   voters       are

required to present a photo identification to cast a ballot in

all elections but are allowed, without photo identification, to

cast a provisional ballot subject to “cure”; (2) that voters who

cast provisional ballots can cure their votes by presenting a

photo identification in person, by fax, or by email within three

days   after   the    election;     (3)       that    a    broad    range      of    photo

identification satisfies the photo identification requirement,

including publicly and privately issued forms of identification,

whether current or recently expired; and (4) that if a voter

does not possess an acceptable form of photo identification,

Virginia’s Board of Elections must provide one to the voter free

of charge and without any requirement that the voter present

documentation.       In enacting SB 1256, the Virginia legislature

sought to synchronize its requirements with the Help America

Vote   Act   (“HAVA”),     42    U.S.C.       §    15483,    a     federal     law    that



                                          3
requires photo identification for first-time voters registering

by mail in federal elections.

        The plaintiffs commenced this action challenging SB 1256

under § 2 of the Voting Rights Act, the First Amendment, the

Equal     Protection     Clause     of     the     Fourteenth      Amendment,      the

Fifteenth       Amendment,   and    the    Twenty-Sixth      Amendment,       arguing

that the photo identification requirement “unduly burdens the

right     to    vote,    imposes     discriminatory         burdens      on   African

Americans       and   Latinos,    and     was    enacted    with   the    intent    to

discriminate against minorities, young voters, and Democrats.”

     Following a two-week bench trial, the district court found

that the plaintiffs had failed to present evidence sufficient to

support their claims.            From the district court’s final judgment

dated May 19, 2016, the plaintiffs filed this appeal.                         For the

reasons that follow, we affirm.


                                           I

        Since    1996,   Virginia       has      required    voters      to   present

identification before casting ballots.                Originally, Virginia law

permitted registered voters who lacked identification to vote by

executing an affirmation of identity at their polling places.

In 2012, the General Assembly enacted SB 1, which eliminated the

self-affirmation procedure while broadening the acceptable forms

of identification, some of which were non-photographic.                          2012


                                           4
Va. Acts ch. 839.             Because § 5 of the Voting Rights Act at that

time subjected Virginia to preclearance by the U.S. Department

of    Justice,      Virginia         submitted     SB    1   for       approval,        and   the

Justice Department approved it.

       A    year    later,      on    March   25,       2013,    the       General      Assembly

enacted SB 1256, codified in various sections of Title 24.2 of

the    Virginia     Code      but    principally        at   §   24.2-643,         to    require

photo      identification       for     all   voters      in     all    elections.            This

change synchronized SB 1 and the federal statute HAVA, which

imposed      a   photo-identification             requirement         on    all   individuals

who had registered by mail and were voting for the first time in

a federal election.                 For those who did not have any form of

identification,          SB    1256    required      the       Board       of   Elections       to

provide the voter with a free photo ID without requiring the

voter to provide any documentation.                       Voters could obtain these

free    photo      IDs   from    the    133   general        registrars’          offices      and

additionally        from      mobile    voter-ID        stations       located     throughout

Virginia.        To obtain a free photo ID, the voter needed only to

provide his or her name, address, birthdate, and the last four

digits of his or her social security number.                                    The law also

authorized voters to use photo IDs that had expired within the

last year.

        Because Virginia was still subject to § 5’s preclearance by

the     Department       of     Justice,      SB    1256        was    enacted       with      the

                                              5
understanding that it would be evaluated under § 5.                          The law was

never      subjected      to   preclearance,          however,    because,       after   SB

1256’s enactment, the Supreme Court held § 5 unenforceable in

Shelby County v. Holder, 133 S. Ct. 2612 (2013).

      On June 11, 2015, plaintiffs Barbara H. Lee, an African

American      and    a    Democrat       who   resides     in    Staunton,       Virginia;

Gonzalo J. Aida Brescia, a Latino and a Democrat who resides in

Richmond,      Virginia;          and    the       Democratic    Party      of   Virginia

commenced     this       action    against     Virginia     election      officials      to

challenge SB 1256.             They alleged (1) that SB 1256 violated § 2

of the Voting Rights Act; (2) that SB 1256 imposed undue burdens

on   the    right    to    vote    and    disparate      treatment     of    individuals

without a rational basis, in violation of the First Amendment

and the Equal Protection Clause of the Fourteenth Amendment; (3)

that SB 1256 amounted to “partisan fencing” (a law that fences

out from the voting franchise a sector of the population), in

violation of the First and Fourteenth Amendments; (4) that SB

1256 discriminated on the basis of race in violation of the

Fourteenth      and       Fifteenth      Amendments;      and    (5)     that     SB   1256

violated the Twenty-Sixth Amendment by failing “to take action

to reduce wait times to vote,” thus suppressing the number of

votes cast by young voters.

        The district court conducted a seven-day bench trial over a

period of two weeks, beginning on February 22, 2016, and, after

                                               6
receiving post-trial briefs, entered final judgment, concluding

that the plaintiffs had “failed to prove by a preponderance of

the    evidence   that   the     Virginia    Voter    ID   law,   either    in   its

enactment or implementation, contravenes the Voting Rights Act,

First Amendment, Fourteenth Amendment, Fifteenth Amendment, or

the Twenty-Sixth Amendment.”           Consistent with this conclusion,

the court dismissed all of plaintiffs’ claims and denied the

plaintiffs’ request for injunctive relief.                   In support of its

judgment, the court filed a 62-page Memorandum Opinion, reciting

the governing legal principles and standards, summarizing the

testimony    of   witnesses      presented    by     the   parties,   and   making

findings of fact and conclusions of law.

       The court recited the testimony of the Secretary of the

State Board of Elections that SB 1256 was modeled after voter ID

laws    adopted   in     other    States,     such    as    Georgia   and    South

Carolina, that had been precleared by the Department of Justice

pursuant to § 5 of the Voting Rights Act.                  The court also found

that, after the enactment of SB 1256, the Board of Elections

“launched a state-wide pre-election campaign informing voters of

the photo identification requirement.”               This included the public

posting    of   some   500,000     posters    describing      the   law    and   the

“sending [of] 86,000 postcards to persons on the active voter

list who, DMV records reflected, possessed no DMV-issued ID and

would likely need a photo ID to vote under the new law.”

                                        7
     The court found that during the election of 2014, when SB

1256 was in effect, “773 provisional ballots were cast by voters

without valid identification” and that during the election of

2015,    “408    provisional         ballots      were     cast    by    voters    with    no

acceptable       form        of    identification.”               One-half      of     these

provisional ballots were ultimately cured and counted.

     The plaintiffs’ evidence about the real-world impact of SB

1256 was presented by 14 voter-witnesses, 2 of whom testified by

deposition.       Assessing this evidence, the district court found

that “none of the voter witnesses was actually denied his or her

right    to     vote,”       although   for       some     the    process    was     “a   bit

cumbersome.”        Of the 14 voter-witnesses, 5 successfully cast

their ballots.         Clayton Stallings had appropriate identification

and could have voted in person, but he voted absentee instead.

Shanna    Samson,        Alex      Highland,         and    Josephine       Okiakpe       all

possessed       appropriate        forms   of     identification          but   forgot    to

bring their IDs with them when they went to vote.                                 They cast

provisional ballots and cured their ballots by sending copies of

their IDs to the registrar.                Laning Pollaty did not possess an

appropriate       form       of   identification         but     was    informed     of   the

availability      of     a    free   photo      ID   at     the   registrar’s        office.

Pollaty obtained a free photo ID and then cast his ballot.

     Of the remaining 9 voter-witnesses, 5 possessed the IDs

needed to cast a vote but did not ultimately do so.                                  Abraham

                                              8
Barranca, Jack Etheredge, Ellen Lamb, and Pettus Hilt possessed

appropriate IDs but forgot to bring them when they voted.                                         While

all of these voters could have cured their provisional ballots

by sending the registrar a copy of their ID, they did not do so.

Charles Benagh possessed appropriate identification but usually

had   voted         absentee,     and    in   2015,       he    failed          to   mail    in     his

absentee ballot.

      The circumstances of the remaining 4 voter-witnesses varied

but did not indicate an inability to vote.                                 Kenneth Adams lost

his Virginia driver’s license prior to the election.                                        While he

could have obtained a free photo ID, he instead elected to apply

for   a   replacement        license.           That      license,          however,        did     not

arrive in time for him to cure his provisional ballot.                                             When

Bobby     Smith,      Jr.,   attempted        to    vote       but        did   not   possess        an

appropriate form of identification, he cast a provisional ballot

and     was    told     he   could       cure       the    ballot          by    going       to    the

registrar’s office.             He chose not to do so, however, because his

candidate of choice had been declared the winner.                                      When Megan

Cotten        attempted      to    vote       without          an     appropriate           form     of

identification, a worker at the polling place failed to tell her

of the possibility of casting a provisional ballot and obtaining

a free photo ID from the registrar.                        Ms. Cotten sent a Twitter

message        to     Virginia’s        Secretary         of        the    Commonwealth,            who

replied, informing Ms. Cotten that she should have received and

                                                9
could still receive a provisional ballot.                         Ms. Cotten, however,

stated that she was unable to take off more time from work and

accordingly did not cast a ballot.                    Finally, Mary Joanna Jones

cured her provisional 2014 ballot by receiving a free photo ID

from the registrar’s office.              Due to an error, however, she did

not receive her photo ID in the mail.                      When she later called the

registrar, she was informed that her card must have been lost in

the    mail.     When    she    stated    that       she    was    not     able    to   drive

herself to the registrar’s officer to obtain a new photo ID, the

registrar sent someone to her house, who then photographed her

for her new ID, and she received her free photo ID.

       Both sides presented expert witnesses, drawn mostly from

the academic community, who presented widely diverse opinions

based    on     statistical       models       and     academic          studies.         The

plaintiffs’ experts concluded that because legislators do not

openly    show    discriminatory         intent,      such        intent    can    only   be

inferred from circumstantial evidence.                       In concluding that the

Virginia        legislators       had      been        motivated            by     racially

discriminatory intent, the plaintiffs pointed to the evidence

that the legislators voted on SB 1256 nearly along party lines;

that    there    was    an     absence    of    evidence          of   voter      fraud    in

Virginia, suggesting the absence of any need for SB 1256; that

race was strongly correlated with support for the Democratic

Party    and    that    the    Republican       Party       controlled       the    General

                                           10
Assembly    that     enacted    SB      1256;      that    various        members      of    the

legislature       had    made     subtle          racial        appeals       during        their

campaigns    for     office;    and     that      the     legislature         had    on     other

occasions failed to pass laws favorable to African Americans,

such as the automatic restoration of voting rights to former

nonviolent felons and the expansion of Medicare coverage.                                    The

experts    also    noted    that      other       States       that    had     passed       photo

identification       laws   were        largely      controlled          by    Republicans.

Other    experts     testifying         on   behalf        of    the     plaintiffs         gave

opinions based on disputed data that a greater percentage of

African      Americans,         Latinos,           and      young         voters          lacked

identification       than   did      Caucasians          and     older    voters.            They

concluded, therefore, that the burden of possessing a photo ID

fell heavier on African Americans, Latinos, and young people.

        Virginia’s      experts      criticized           the     conclusions          of     the

plaintiffs’ experts, pointing out what they claimed were flaws

in data and logic and identifying omitted or misreported data.

Nonetheless, they agreed that African Americans were slightly

more likely than Caucasians to lack appropriate identification,

concluding       that   96.8%      of    Caucasians            and    94.6%     of     African

Americans had appropriate IDs.

      Virginia’s experts also provided polling data showing that

the     public    overwhelmingly         supported         a     photo        identification



                                             11
requirement, mainly to prevent fraud and to provide confidence

in the voting process.

       Finally,     Virginia’s         experts      found     no     evidence      of     any

discriminatory intent in connection with the enactment of SB

1256.

       While the experts on both sides recognized the history of

discrimination         in    Virginia,      they   also,     to    differing       degrees,

noted a significant correction, with a trajectory toward greater

inclusion.        They       pointed   to    the    robust       two-party       system    in

Virginia, to the election of an African American as Virginia’s

governor, and to other similar indicators.

        After    considering        this     evidence      and     the    more    detailed

evidence of the legislative debates that took place during the

enactment       process,      the    district      court     found       the    facts    that

underlay its ultimate conclusion.                    First, the court concluded

that    there    was    no    dispute      that    Virginia       had    a     “regrettable

history    of    discriminatory         policies       and   practices.”           It    also

found that the evidence confirmed the commonly held assumption

that    African    American         voters    tended    to    gravitate         toward    the

Democratic       party,      although,       in    recent    years,       an     increasing

number of African Americans had run for statewide office on the

Republican ticket, blurring those political lines.

        With respect to the impact of SB 1256, the court concluded

that while the law added “a layer of inconvenience to the voting

                                             12
process,       it    appear[ed]           to     affect    all    voters       equally.”        More

importantly, the court found that none of the voter witnesses

identified any “legal obstacle inhibiting their opportunity to

vote.”              It    found           that     “persons        without        valid        photo

identification were able to cast provisional ballots and cure

them     by    presenting            proper       evidence        within       three    days,    or

alternatively,           if     they      were     disabled,      submitting       an    absentee

ballot.”        At bottom, the court indicated that it found itself

reaching       the       same       conclusion      reached       by    Justice        Stevens   in

Crawford v.          Marion         County       Election      Board,    553    U.S.     181,    198

(2008)        (announcing           the     judgment        of    the    Court),        where     he

concluded:          “[T]he inconvenience of making a trip to the [Bureau

of Motor Vehicles], gathering the required documents, and posing

for a photograph surely does not qualify as a substantial burden

on the right to vote, or even represent a significant increase

over the usual burdens of voting.”                        (Emphasis added).

       At      bottom,          the       district        court        found     the     evidence

“insufficient to support Plaintiffs’ claim that SB 1256 ha[d]

denied      African       Americans,           Latino,      and    young      voters     an    equal

opportunity to participate in the political process and to elect

representatives of their choice.”                           It also found as fact that

the    plaintiffs’         evidence            failed     to   demonstrate       that     SB    1256

“ha[d] an adverse disparate impact on African American or Latino

voters,       impose[d]         a    discriminatory            burden    on    those    protected

                                                   13
classes, or cause[d] anyone to have less opportunity than others

to   participate      in    the    political         process.”            While    the     court

recognized     that     African        Americans      and       Latinos     were    “slightly

less   likely”     to      have    appropriate            identifications          than     were

Caucasians, it found that the burden to obtain an appropriate

identification was the “burden to travel to the DMV or the local

registrar’s      office           to     obtain           an      acceptable        form        of

identification.”         Relying on Crawford, the court concluded that

SB 1256 did not impose “excessively burdensome requirements on

any class of voters.”         553 U.S. at 202.

       With respect to the plaintiffs’ claim that the legislature

intentionally      discriminated          on    the       basis      of   race    and    age    in

enacting SB 1256, the court found that the evidence failed “to

show     any   departure          from     normal          legislative           procedures.”

Although it recognized that the enactment of SB 1256 was on a

near-party-line       vote,       the    bill       was    nonetheless       subject       to    a

robust    debate      from    all       sides        and       the    debate      lacked       any

statements by legislators indicating any sort of discriminatory

intent.    In sum, the court concluded:

       The extensive testimonial and documentary evidence
       offered in this case has failed to reveal by a
       preponderance of the evidence that the Virginia
       General Assembly, a legislative body composed of 140
       Delegates and Senators, enacted the Virginia photo
       identification requirement with the intent to suppress
       minority and young voters.



                                               14
       From the district court’s judgment dated May 19, 2016, the

plaintiffs filed this appeal.


                                         II

       The plaintiffs first contend that SB 1256 violates § 2 of

the    Voting      Rights     Act   of   1965      in     that     it    imposes   a

discriminatory       burden   on    African   Americans      and    Latinos,    such

that   they   have    less    opportunity     to   vote    than    do    Caucasians.

This     burden,      they     argue,     results         from     the     disparate

inconvenience that the photo identification requirement imposes

on African Americans and Latinos.

       Section 2 provides:

       (a) No voting qualification or prerequisite to voting
       or standard, practice, or procedure shall be imposed
       or applied by any State or political subdivision in a
       manner which results in a denial or abridgement of the
       right of any citizen of the United States to vote on
       account of race or color, or in contravention of the
       guarantees set forth in section 10303(f)(2) [similarly
       protecting members of a language minority group] of
       this title, as provided in subsection (b).

       (b) A violation of subsection (a) is established if,
       based on the totality of circumstances, it is shown
       that the political processes leading to nomination or
       election in the State or political subdivision are not
       equally open to participation by members of a class of
       citizens protected by subsection (a) in that its
       members have less opportunity than other members of
       the electorate to participate in the political process
       and to elect representatives of their choice.      The
       extent to which members of a protected class have been
       elected   to   office  in   the  State   or  political
       subdivision   is   one  circumstance   which  may   be
       considered:   Provided, That nothing in this section
       establishes a right to have members of a protected

                                         15
      class elected in numbers equal to their proportion in
      the population.

52   U.S.C.   §     10301       (emphasis        added).       Thus,   the    statutory

requirements      for     proving       a    §    2    violation     are:         (1)   the

identification       of     a       qualification,         prerequisite,      standard,

practice, or procedure (“a structure or practice”), (2) which

results in a denial or abridgement of the right to vote (3) on

account of race or color or because the person is a member of a

language minority group (“the protected class”) (4) such that,

in the totality of circumstances, the political process is not

equally open to the protected class (5) in that its members have

less opportunity than others to participate in the process and

elect representatives of their choice.                        Congress deliberately

omitted any requirement of showing intent, having “revised § 2

to   make   clear    that       a   violation         [can]   be   proved    by    showing

discriminatory effect alone and to establish as a relevant legal

standard the ‘results test’ applied . . . in White v. Regester,

412 U.S. 755 (1973).”                Thornburg v. Gingles, 478 U.S. 30, 35

(1986) (citation altered).                  The Gingles Court noted that the

“essence” of a burdensome structure or practice that violates

§ 2 is its “interact[ion] with social and historical conditions

[that] cause[s] an inequality” in electoral opportunity.                           Id. at

47; see also League of Women Voters of North Carolina v. North

Carolina, 769 F.3d 224, 240 (4th Cir. 2014).


                                             16
      In    this    case,      the    structure          or    practice        identified     by

plaintiffs was SB 1256’s requirement that every voter provide a

photo ID either at the time of voting or within three days

thereafter.        The plaintiffs argue that, because members of the

protected class are less likely to possess photo identification,

SB 1256’s requirement imposes an unacceptable, disparate burden

that has the effect of denying African Americans and Latinos an

equal opportunity to vote.                 They state, “[W]hat matters . . . is

not   how    many     minorities           are        being    denied        equal   electoral

opportunities       but   simply          that    ‘any’       minority       voter   is    being

denied      equal     electoral           opportunities. . . .                   [E]ven     one

disenfranchised voter -- let alone several thousand -- is too

many,” quoting League of Women Voters, 769 F.3d at 244.

      Virginia       contends        that       there     is     no    evidence      that    any

eligible Virginia voter has been or will be denied an equal

opportunity     to    vote.          It     asserts       that      the   evidence     of   any

person’s     failure      to    cast        a    ballot        in     this    case   was    not

attributable to Virginia’s ID law but to that person’s decision

not to cure a provisional ballot.

      The district court resolved this issue, finding a lack of

evidence to support the plaintiffs’ claims:

      African Americans, as a demographic block, are by a
      slim statistical margin less likely to have a form of
      valid   identification.    Neither   this  statistical
      conclusion nor Dr. Rodden’s [an expert witness for the
      plaintiffs] analysis supports a reliable factual

                                                 17
        finding that African Americans or Latinos are denied
        an equal opportunity to participate in the electoral
        process. Nothing presented supports a conclusion that
        minorities are not afforded an equal opportunity to
        obtain a free voter ID.      As described by numerous
        witnesses during the course of trial, eligible voters
        do not need to present any independent documentation
        to obtain a free voter form of identification under
        Virginia   Code  §  24.2-643   and   its  implementing
        regulations.    The statute simply requires that a
        registrant provide her name, address, birthdate, and
        social security number and sign the registration form
        swearing that the information provided is true and
        correct.

        A complex § 2 analysis is not necessary to resolve this

issue    because    the    plaintiffs   have    simply   failed    to    provide

evidence that members of the protected class have less of an

opportunity than others to participate in the political process.

Under the law, as borne out by the record, every registered

voter who shows up to his or her local polling place on the day

of the election has the ability to cast a ballot and to have the

vote counted, even if the voter has no identification.                    When a

voter shows up without identification, he or she is able to cast

a provisional ballot, which can be cured by later presenting a

photo     ID.      If     the   voter   lacks    an   acceptable        form   of

identification, the voter can obtain a free voter ID with which

to   cure   the    provisional    ballot.       Because,   under   Virginia’s

election laws, every registered voter in Virginia has the full

ability to vote when election day arrives, SB 1256 does not

diminish the right of any member of the protected class to have


                                        18
an equal opportunity to participate in the political process and

thus does not violate § 2.

       The   plaintiffs          argue    that,     for       some   groups     of     minority

voters, this opportunity is disproportionately burdened because

a lower percentage of minorities have qualifying photo IDs and

the    process     of    obtaining        photo    IDs    requires      those        voters    to

spend time traveling to and from a registrar’s office.                                        The

Supreme Court has held, however, that this minor inconvenience

of going to the registrar’s office to obtain an ID does not

impose a substantial burden.                      As recognized in Crawford, 553

U.S.    at   198,        “the    inconvenience           of    making    a      trip    to     [a

government office], gathering the required documents, and posing

for a photograph surely does not qualify as a substantial burden

on the right to vote, or even represent a significant increase

over the usual burdens of voting.”                        553 U.S. at 198 (Stevens,

J., announcing the judgment of the Court); see also id. at 209

(Scalia,     J.,        concurring       in   the    judgment)          (“The     burden      of

acquiring, possessing, and showing a free photo identification

is simply not severe,” and “the State’s interests are sufficient

to sustain that minimal burden”).

       Nonetheless, the plaintiffs press their argument further,

asserting categorically that as long as there is disparity in

the    rates       at     which        different     groups          possess      acceptable

identification,          §   2    is     violated.        To     make    this     assertion,

                                              19
however, the plaintiffs have to make an unjustified leap from

the disparate inconveniences that voters face when voting to the

denial or abridgement of the right to vote.                     Every decision that

a    State    makes    in   regulating      its   elections      will,       inevitably,

result in somewhat more inconvenience for some voters than for

others.       For example, every polling place will, by necessity, be

located closer to some voters than to others.                      To interpret § 2

as     prohibiting       any      regulation      that     imposes       a     disparate

inconvenience would mean that every polling place would need to

be precisely located such that no group had to spend more time

traveling to vote than did any other.                     Similarly, motor-voter

registration would be found to be invalid as members of the

protected class were less likely to possess a driver’s license.

Yet, courts have also correctly rejected that hypothetical.                         See

Frank    v.    Walker,      768   F.3d     744,   754    (7th    Cir.   2014),    cert.

denied, 135 S. Ct. 1551 (2015).

       We conclude that § 2 does not sweep away all election rules

that result in a disparity in the convenience of voting.                          As we

noted in North Carolina State Conference of NAACP v. McCrory,

831 F.3d 204, 241 (4th Cir. 2016), “it cannot be that states

must    forever       tip-toe     around    certain     voting    provisions”      that

would have more effect on the voting patterns of one group than

another.       Rather, § 2 asks us to evaluate whether the Virginia

process has diminished the opportunity of the protected class to

                                            20
participate in the electoral process.                     If Virginia had required

voters to present identifications without accommodating citizens

who lacked them, the rule might arguably deprive some voters of

an equal opportunity to vote.                     But where, as here, Virginia

allows everyone to vote and provides free photo IDs to persons

without them, we conclude that SB 1256 provides every voter an

equal opportunity to vote and thus does not violate § 2 of the

Voting Rights Act.


                                            III

     The   plaintiffs          next   contend      that    SB        1256   violates    the

Constitution in that SB 1256 was enacted with the intent to

discriminate       on    the    basis      of     race,    in        violation    of   the

Fourteenth     and      Fifteenth     Amendments.               In    support     of   this

contention,    they      point:       to    evidence       of    Virginia’s       pre-1965

history    when    substantial        and       illegal    barriers         existed    when

minorities voted; to the fact that SB 1256 was enacted only one

year after the General Assembly had enacted SB 1; to various

statements made by legislators during the legislative debate,

including the statements of a state senator insisting that only

an unexpired form of ID should qualify; to the burden imposed on

minorities by requiring a photo ID; to the fact that while the

legislators were debating SB 1256, the Supreme Court granted

certiorari    in     Shelby     County;      to    the    fact       that    an   African-


                                            21
American President of the United States had been reelected in

2012 and had won Virginia; to the evidence advanced by their

experts that several other States, controlled by Republicans,

had enacted voter identification laws; and to an alleged lack of

any rationale for the law’s enactment other than discrimination

on the basis of race.                They argue that our recent decision

striking    down    portions     of    North    Carolina’s      ID    law   presented

similar    facts,    which     should    dictate      the    outcome    here.       See

McCrory, 831 F.3d 204.

      In    response,         Virginia    points       to    testimony         of   the

plaintiffs’    expert     witnesses      during      which   they     conceded      that

there was no direct evidence that Virginia adopted SB 1256 to

discriminate against minorities.                Virginia also points to the

testimony    of    its   own     experts,      who   reviewed    the    legislative

history and public record related to SB 1256 and concluded that

evidence did not support a defensible conclusion that any member

of the legislature voted for SB 1256 with the intent to suppress

the vote of minorities.           Rather, the experts concluded that the

legislature demonstrated support for the bill for reasons other

than vote suppression, such as the prevention of voter fraud and

the promotion of public confidence in the voting system -- in

particular, because “public opinion favored such legislation, a

public perception of potential voter fraud, promoting confidence

in   the   integrity     of    the    electoral      system,    and    sound    public

                                         22
policy    in    preventing     future      acts       of    voter    fraud.”        These

purposes for enacting SB 1256 were corroborated by testimony of

election       officials.      In    addition,            Virginia    presented      some

evidence of voter fraud, as well as the conclusions reached by

the Carter-Baker Commission (chaired by former President Jimmy

Carter and former Secretary of State James Baker), which favored

use of photo identification, because, even though there was no

evidence   of     extensive    fraud      in    U.S.       elections,      “there   is   no

doubt that it occurs” and that “it could affect the outcome of a

close    election.”         Comm’n   on    Fed.       Election       Reform,    Building

Confidence      in   U.S.    Elections         18    (2005).         The    Carter-Baker

Commission also noted that “the perception of possible fraud

contributes to low confidence in the system.                         A good ID system

could deter, detect, or eliminate several potential avenues of

fraud -- such as multiple voting or voting by individuals using

the identities of others or those who are deceased -- and thus

it can enhance confidence.”            Id. at 18-19.           Virginia showed that

the   General     Assembly     considered           the    Carter-Baker       Commission

report when adopting SB 1256.

      In its Memorandum Opinion, the district court recited the

extensive testimony of various legislators and the historical

facts both with respect to the enactment of SB 1256 and prior

historical facts in Virginia.                  After considering the evidence,

the court concluded:

                                          23
      The   evidence   .  .   .   however   demonstrated     that
      irrespective   of  statistics,    a   large    segment   of
      Virginia   voters   thought    a   photo    identification
      requirement   for  voting    was   a   prudent    safeguard
      measure.    As one expert noted, responding to public
      concern by passing a law to prevent crime before it
      happened amounted to a reasonable action on the part
      of the General Assembly.      In fact the Supreme Court
      agreed in Crawford.    See 553 U.S. at 197.        Further,
      voter confidence, uniformity, and fraud prevention all
      stood as legitimate reasons to enact SB 1256.

      Additionally,   the   evidence    failed   to  show   any
      departure    from    normal    legislative    procedures.
      Instead, although ultimately passing on a near-party-
      line vote, the bill was subject to robust debate from
      all sides.    Finally, there was a complete dearth of
      statements by legislators indicating any sort of
      discriminatory intent.

      The extensive testimonial and documentary evidence
      offered in this case has failed to reveal by a
      preponderance of the evidence that the Virginia
      General Assembly, a legislative body composed of 140
      Delegates and Senators, enacted the Virginia photo
      identification requirement with the intent to suppress
      minority and young voters.

      The   parties    agree   that    the    standard    for    finding   racial

discrimination under the Constitution in these circumstances is

set   forth    in    Village   of    Arlington      Heights     v.   Metropolitan

Housing     Development     Corp.,    429    U.S.   252   (1977).       See    also

McCrory, 831 F.3d at 220-21.

      In Village of Arlington Heights, the plaintiffs contended

that the Village’s denial of a rezoning application to convert a

15-acre     parcel   from   single-family      to    multi-family      homes   was

motivated by racial discrimination.                 In addressing the claim,

the Supreme Court articulated the standard that the plaintiffs


                                       24
had to satisfy to prove such a claim:                        “[O]fficial action will

not    be   held    unconstitutional        solely       because         it    results          in    a

racially     disproportionate           impact.     .   .     .        Proof       of    racially

discriminatory        intent       or     purpose       is       required          to     show        a

violation,” although that purpose need only be “a motivating

factor in the decision.”            Village of Arlington Heights, 429 U.S.

at 264-66 (emphasis added).                 Accordingly, when “[d]etermining

whether      invidious         discriminatory       purpose            was     a    motivating

factor,” a court must undertake “a sensitive inquiry into such

circumstantial        and       direct    evidence          of     intent          as     may        be

available.”        Id. at 266.

       The Village of Arlington Heights Court then reviewed the

evidence,     acknowledging         that     the        impact         of     the       Village’s

rezoning decision “does arguably bear more heavily on racial

minorities.         Minorities      constitute          18%       of   the     Chicago          area

population, and 40% of the income group said to be eligible for

[the    development       at    issue].      But    there         is     little         about    the

sequence of events leading up to the decision that would spark

suspicion.”        Village of Arlington Heights, 429 U.S. at 269.                                The

Court pointed to the fact that the rezoning request progressed

according     to    the   usual     procedures;         that       the      Commission          even

scheduled two additional hearings to accommodate further debate;

that the statements of board members “focused almost exclusively

on the zoning aspects of the . . . petition,” although there may

                                            25
have been “reliance by some neighboring property owners on the

maintenance of single-family zoning in the vicinity.”                                     Id. at

270.    In the end, after applying the announced standard to the

facts presented, the Court concluded that the challengers had

“simply     failed         to     carry        their      burden        of      proving     that

discriminatory purpose was a motivating factor in the Village’s

decision.”        Id.

       In   this        case,    the     evidence        of   racially        discriminatory

intent is similarly lacking.                   SB 1256 was enacted to streamline

Virginia’s        election        laws        by     imposing      on     all      voters    the

requirements that HAVA imposes on some.                         Moreover, in enacting a

photo identification requirement, the Virginia legislature went

out of its way to make its impact as burden-free as possible.

It allowed a broad scope of IDs to qualify; it provided free IDs

to those who did not have a qualifying ID; it issued free IDs

without     any    requirement         of      presenting       documentation;         and    it

provided numerous locations throughout the State where free IDs

could be obtained.              And, as in Village of Arlington Heights, the

legislative process here was normal, with full debate, and no

evidence     was        presented        of        untoward   external          pressures     or

influences affecting the debate.                        While there was a substantial

party split on the vote enacting the law, two non-Republicans

(one   Democrat         and   one   Independent)           voted    for      the   measure    as



                                                   26
well.     In short, we conclude that the district court’s factual

findings with respect to this issue were not clearly erroneous.

      The   plaintiffs     nonetheless     argue    that       the     circumstances

here are not unlike those in McCrory and that McCrory therefore

requires us to find that SB 1256 was enacted with discriminatory

intent.     This argument, however, fails to understand our holding

in McCrory.

      In McCrory, we held that the facts found by the district

court showed that the North Carolina election law was enacted

“with [racially] discriminatory intent,” 831 F.3d at 215, as

revealed by the legislature’s conduct leading up to the law’s

enactment.      We     concluded   that,        based    on     the    totality       of

circumstances, the North Carolina process targeted black voters

with “almost surgical precision.”           Id. at 214.          As we explained,

for   years,   North     Carolina’s   election          laws    were       subject    to

preclearance    by   the   Department      of   Justice        under   §    5   of   the

Voting Rights Act and, under that preclearance regime, “African

American    registration     and   turnout      rates     had    finally        reached

near-parity with white registration and turnout rates.                          African

Americans were poised to act as a major electoral force.”                            Id.

But, we noted, on the day after the Supreme Court eliminated

§ 5’s preclearance obligations in Shelby County, the Republican

Chairman of the Senate Rules Committee, whose party had been

rarely supported by African Americans, announced the intention

                                      27
of enacting a new “omnibus” election law.               Id. at 214, 216.

After the announcement but before the enactment of any law, the

legislature requested data “on the use, by race, of a number of

voting practices.”       Id. at 214 (emphasis added).           And based on

the data, the legislature, acting “swiftly,” enacted legislation

“that restricted voting and registration in five different ways,

all   of   which    disproportionately    affected    African    Americans.”

Id. at 214, 216.       Moreover, the legislature offered “only meager

justifications” for the new provisions.              Id. at 214.          Equally

telling, in its efforts to “rush” the omnibus bill through the

legislative      process,   the    legislature    engaged       in    “unusual

procedures.”       Id. at 228.    As we concluded, “the State took away

minority voters’ opportunity because they were about to exercise

it. . . .     [T]his bears the mark of intentional discrimination.”

Id.   at   215   (alterations     omitted)   (quoting   League       of    United

States Citizens v. Penny, 548 U.S. 399, 440 (2006)).

      These facts in McCrory are in no way like those found in

Virginia’s legislative process for the enactment of SB 1256.

While the Virginia legislature knew that certiorari had been

granted in Shelby County when it was conducting its debates on

SB 1256, Shelby County had not yet been decided, and its outcome

was not known.        The Virginia General Assembly thus necessarily

acted as if SB 1256 would be reviewed by the Department of

Justice under § 5 of the Voting Rights Act.              In addition, the

                                     28
legislative       process          contained      no    events      that    would     “spark

suspicion.”        Village         of    Arlington      Heights,     429    U.S.    at   269.

Unlike the departure from the normal legislative process that

occurred in North Carolina, SB 1256 passed as part of Virginia’s

standard legislative process, following full and open debate.

And the legislature did not call for, nor did it have, the

racial    data    used    in       the    North      Carolina    process     described     in

McCrory.      Moreover, the provisions included in SB 1256 did not

target    any    group        of   voters,       let   alone    target      with    surgical

precision.        Indeed, SB 1256 requires photo identification for

all     voters    and    allows          the    use    of   photo     IDs    provided      by

Virginia’s public and private universities, which are, according

to    plaintiffs’       own    witnesses,         disproportionately         possessed     by

young people and African Americans.

       Reviewing the totality of the circumstances involved in the

enactment of SB 1256 in light of Village of Arlington Heights

and McCrory, we conclude that the evidence in this case was

insufficient       to     prove          that     racial       discrimination        was   a

motivating purpose for the enactment of SB 1256.                              The law was

passed     by     the     Virginia             legislature      through       the     normal

legislative process, and that process was unaccompanied by any

facts    or     circumstances            suggesting     the     presence     of     racially

discriminatory intent.



                                                29
                                          IV

       The    plaintiffs      contend    next    that    even        if   SB   1256     was

enacted       without     racially       discriminatory          intent,         it     is,

nonetheless, unconstitutional because it places an undue burden

on the constitutionally protected right to vote.                          They point to

the “cumbersome” process faced by those who seek to vote but do

not possess photo identification, noting particularly that in

order to obtain a free photo ID from the government, a voter

must   travel    to     the   registrar’s      office   and     that      this   process

might, for certain plaintiffs, take hours.                      They maintain that

this burden is not justified by the public interests identified

by Virginia.         The plaintiffs argue that the evidence shows no

voter-impersonation fraud in Virginia and that, in any event, a

free ID is so easy to obtain that it would not prevent such

fraud.        They      assert,   in     addition,       that        requiring        photo

identification will not increase public confidence in elections

and    also   that    Virginia’s       stated    interest       in    conforming        its

practices to the federal requirements for photo identification

imposed by HAVA was not sufficiently demonstrated.

       The    parties     agree   that    the    legal    principles           governing

resolution of this issue are set forth by the Anderson-Burdick

analysis, based on the Supreme Court’s decisions in Anderson v.

Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504

U.S. 428 (1992).         In Anderson, the Court, finding that an early

                                          30
filing deadline unduly burdened voting rights, articulated the

analysis to be applied in evaluating a State’s election laws

under the First and Fourteenth Amendments.                  First, the Court

recognized    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.”    Anderson, 460 U.S. at 788 (quoting Storer v. Brown,

415 U.S. 724, 730 (1974)).       The Court explained further:

      To achieve these necessary objectives, States have
      enacted comprehensive and sometimes complex election
      codes.    Each provision of these schemes, whether it
      governs the registration and qualifications of voters,
      the selection and eligibility of candidates, or the
      voting process itself, inevitably affects -- at least
      to some degree -- the individual’s right to vote and
      his right to associate with others for political ends.
      Nevertheless,    the   States’    important   regulatory
      interests    are   generally   sufficient   to   justify
      reasonable, nondiscriminatory restrictions.

Id.   After giving this background, the Court then articulated

the governing analysis for a constitutional challenge to a State

law regulating elections, stating:

      [A court] must first consider the character and
      magnitude of the asserted injury to the rights
      protected by the First and Fourteenth Amendments that
      the plaintiff seeks to vindicate.        It then must
      identify and evaluate the precise interests put forth
      by the State as justifications for the burden imposed
      by its rule. In passing judgment, the Court must not
      only determine the legitimacy and strength of each of
      those interests; it also must consider the extent to
      which those interests make it necessary to burden the
      plaintiff’s rights.    Only after weighing all these
      factors is the reviewing court in a position to decide
      whether the challenged provision is unconstitutional.

                                      31
Id. at 789.

      In Burdick, the Court further clarified the constitutional

analysis by noting that election laws generally are not subject

to strict scrutiny, even though voting rights are fundamental

under the Constitution.          The Court explained:

      The Constitution provides that States may prescribe
      “[t]he Times, Places and Manner of holding Elections
      for Senators and Representatives,” Art. I, § 4, cl. 1,
      and the Court therefore has recognized that States
      retain the power to regulate their own elections.
      Common sense, as well as constitutional law, compels
      the conclusion that government must play an active
      role in structuring elections.

Burdick,    504    U.S.    at   433.      In   view    of   these    constitutional

assignments       of    responsibility     and   the    requirements        of   State

regulation,       the   Court   noted     that   applying      a   strict    scrutiny

standard to       every    voting   regulation        “would   tie   the    hands   of

States seeking to assure that elections are operated equitably

and efficiently.”         Id.    Thus, while “severe” restrictions “must

be   narrowly     drawn    to   advance    a   state    interest     of    compelling

importance,”       a    reasonable,     nondiscriminatory           restriction     on

voting rights is justified by a State’s “important regulatory

interests.”       Id. at 434 (internal quotation marks and citations

omitted).

      In Crawford, the Supreme Court applied the Anderson-Burdick

analysis in upholding the constitutionality of Indiana’s photo

identification law, which was similar to SB 1256 but in fact


                                          32
more restrictive.          The Indiana law required that voters present

a government-issued photo ID in order to vote, and voters who

did not have such identification could obtain one only if they

presented proof of residence and identity, such as with a birth

certificate.        In conducting the Anderson-Burdick analysis, the

Court    found     that    Indiana      had    a    valid        interest          in     adopting

standards that aligned with federal election statutes, including

HAVA,    where     Congress       had     indicated          a     belief          that     “photo

identification is one effective method of establishing a voter’s

qualification to vote.”            Crawford, 553 U.S. at 193 (Stevens, J.,

announcing the judgment of the Court).                            The Court also found

that Indiana had valid interests in preventing voter fraud, even

though    there      was     no        evidence         of       any     in-person          voter

impersonation      having    occurred         in    Indiana,           and    an    independent

interest in protecting voter confidence in the integrity of its

elections.       Id. at 194-97.         The Court concluded that these state

interests     justified        the       burdens         imposed             by     the     photo

identification requirements in its election law.                                   Id. at 202.

And for voters who lacked the required identification, the Court

explained    the    ability       to    obtain      a   free      photo       identification

meant that the burden was not substantial; the “inconvenience of

making a trip to the BMV, gathering the required documents, and

posing for a photograph surely does not qualify as a substantial

burden on the right to vote.”                      Id. at 198.               While the Court

                                           33
recognized that for some voters, such as those who lacked a

birth certificate or other documentation needed to obtain a free

ID, the burden was greater, it nonetheless concluded that this

greater burden was not sufficiently substantial to render the

statute unconstitutional.          Id. at 199-202.

     The   Crawford    Court’s         application    of   the   Anderson-Burdick

analysis to Indiana’s election law controls our resolution of

the issue here.       SB 1256 imposes a lighter burden than did the

Indiana    law   challenged      in    Crawford,     particularly     inasmuch    as

Virginia    voters    are        not     required    to     present    any     birth

certificate or other documentation to obtain a free ID.                      Even as

the burden imposed by SB 1256 is lighter, the justifications

that Virginia advances here for SB 1256 are the same as those

advanced    by   Indiana    --    alignment    with       federal   statutes    like

HAVA, prevention of voter fraud, ∗ and the preservation of voter

confidence in the integrity of elections.                    Because those same

justifications were held to support the greater burden imposed

     ∗ In both Crawford and the record here, there was limited
evidence of voter fraud.      Nonetheless, we have, since oral
argument here, seen that the FBI has announced an investigation
into a circumstance where 19 deceased Virginians in Harrisonburg
were recently re-registered to vote. Laura Vozela, He fought in
World War II. He died in 2013. And he just registered to vote
in Va., Wash. Post (Sep. 29, 2016), https://perma.cc/GXV4-BKAG.
And in a separate case, an indictment has been returned in
Alexandria against a man charged with multiple counts of voter-
registration fraud. Justin Wm. Moyer, Man who registered voters
for progressive Virginia group charged with fraud, Wash. Post
(Oct. 28, 2016), https://perma.cc/YWX5-TZDW.


                                          34
on   voters    in    Crawford,       they    must,      a     fortiori,      justify    the

lighter    burdens         imposed    on     Virginia         voters      by   SB   1256.

Accordingly,        we    conclude    that       SB    1256    does    not     impose    an

unconstitutional burden on the right to vote.


                                             V

      Finally, the plaintiffs allege that SB 1256 violates their

rights    under     the     Twenty-Sixth         Amendment.        The     Twenty-Sixth

Amendment provides that “[t]he right of citizens of the United

States, who are eighteen years of age or older, to vote shall

not be denied or abridged by the United States or by any State

on   account   of        age.”     U.S.    Const.      amend.    XXVI,     §   1.       This

language   parallels         the   language       of    the    Fifteenth       Amendment,

which provides similarly that “[t]he right of citizens of the

United States to vote shall not be denied or abridged by the

United States or by any State on account of race, color, or

previous condition of servitude.”                     U.S. Const. amend. XV, § 1.

Because of the parallel language, the plaintiffs argue that the

Fifteenth Amendment jurisprudence provides the analytical basis

for considering a Twenty-Sixth Amendment claim of discrimination

on the basis of age.             Thus, they maintain that just as SB 1256

imposed an undue burden on African Americans and Latinos, it

also placed an undue burden on “young people.”




                                            35
      First, it is far from clear that the Twenty-Sixth Amendment

should    be    read     to     create     a    cause          of    action       that     imports

principles from Fifteenth-Amendment jurisprudence.                                   Even if it

does, however, the plaintiffs point to no evidence in the record

that supports their age-discrimination claim other than their

evidence that African Americans, Latinos, and young people are

less likely to possess photo identifications and that a Virginia

legislator made a passing comment that President Obama had been

focusing on obtaining the support of young voters.                                  Moreover, if

the     Twenty-Sixth          Amendment        functions             like      the       Fifteenth

Amendment,      the    plaintiffs        would       also      need       to   demonstrate       an

intent to discriminate on the basis of age.                               The district court

found    that   the     plaintiffs       “failed          to    show      that      SB   1256   was

intended,       either     in     its      enactment            or     implementation,          to

discriminate against young voters.”                       Based on our review of the

record, we agree.


                                               VI

      At bottom, just as Congress in HAVA found it beneficial to

the   voting     process       and   the    public         perception          of    the    voting

process    to    require       photo     IDs,       and    just      as     the     Carter-Baker

Commission      found    similarly,        Virginia            found      it     beneficial      to

require     photo      identification           in    all       elections.               Moreover,

Virginia took numerous steps to mitigate any burdens that this


                                               36
requirement might impose on voters, suggesting that a benign

purpose underlay SB 1256’s enactment.             It allowed a broad scope

of acceptable forms of identification, which included most IDs

that citizens have and that are reasonably reliable; it allowed

citizens   attempting      to   vote    without     identification   to     cast

provisional      ballots    and    then      cure     their    identification

deficiency within three days; it provided those citizens who

lacked photo identification a free photo ID without the need to

present    any   documentation;        and   it     provided   assistance    to

citizens expressing difficulty in obtaining free IDs.

     In sum, not only does the substance of SB 1256 not impose

an undue burden on minority voting, there was no evidence to

suggest racially discriminatory intent in the law’s enactment.

The judgment of the district court is accordingly

                                                                     AFFIRMED.




                                       37
