[00:00:27] Speaker 13: Good afternoon and welcome to the Nakamura Courthouse here in Seattle. [00:00:32] Speaker 13: It's a pleasure to be here. [00:00:34] Speaker 13: This is the time set for the case of Arizona Alliance for Retired Americans versus Kristen Mays, Yuma County Republican Committee and Katie Hobbs and the United States of America. [00:00:49] Speaker 13: The parties are ready to begin. [00:00:51] Speaker 13: You may come forward. [00:00:52] Speaker 13: I understand that there's some shared time. [00:00:57] Speaker 13: Correct, Mr. Samuels? [00:00:59] Speaker 02: That is, Your Honor. [00:01:00] Speaker 02: So the plan is that I will take 20 minutes of appellant's time attempting to focus my arguments on the standing arguments. [00:01:07] Speaker 02: The United States will go next, also talking about standing for 10 minutes. [00:01:11] Speaker 02: And then the committee will argue for 10 minutes. [00:01:14] Speaker 02: Excuse me. [00:01:15] Speaker 02: Planning to focus on the merits of the cancellation provision and the felony provision. [00:01:19] Speaker 13: OK. [00:01:20] Speaker 13: If you're ready to proceed, thank you. [00:01:23] Speaker 02: Excuse me, Your Honors. [00:01:26] Speaker 02: Good afternoon, and may it please the Court. [00:01:27] Speaker 02: My name is Alexander Samuels. [00:01:29] Speaker 02: I'm here on behalf of Arizona Attorney General Chris Mays. [00:01:33] Speaker 02: Like I said, I intend to focus my arguments on the standing as it relates to both provisions. [00:01:38] Speaker 02: And I'll start with the cancellation provision, although I hope I'll get the opportunity to talk about the felony provision as well. [00:01:44] Speaker 02: And in our view, in light of the clarification offered by Hippocratic Medicine by the Supreme Court last year, [00:01:50] Speaker 02: It is simply the case here that plaintiffs cannot make the clear showing of standing that is required at this early preliminary injunction stage of the litigation. [00:02:01] Speaker 12: I have a question for you. [00:02:05] Speaker 12: If we were to hold that an organization has suffered an injury, in fact, when the defendant's conduct directly interferes with their core activities, requiring the organization to divert resources in response, [00:02:19] Speaker 12: Setting aside, perhaps, a couple of outliers in our circuit, how is that any different than the organizational standing tests that set forth in Hippocratic medicine? [00:02:29] Speaker 02: Well, I think one key difference is I think that's not quite the test that this court has typically applied. [00:02:33] Speaker 02: The second part, the diversion of resources, I think that's accurate. [00:02:37] Speaker 02: The first part has typically been characterized as frustration of mission, which we think is quite different than interference with core activities, which is the focus of the Supreme Court's decision [00:02:48] Speaker 12: Hippocratic medicine so I think if I were to Use those terms interchangeably the frustration of mission or an infringement or an impact on the core activities Then you'd agree that that's that that is essentially the test that's been set forth in Hippocratic medicine [00:03:04] Speaker 02: Well, I think I would push back pretty strongly on the idea that those two should be used interchangeably. [00:03:09] Speaker 02: But I take your question to be asking, if you did view them interchangeably, would things remain the same? [00:03:14] Speaker 02: I still think the diversion of resources aspect of this was disapproved of as well in Hippocratic medicine. [00:03:20] Speaker 02: And the court spoke to that quite specifically. [00:03:22] Speaker 02: And I think it may be helpful for me to lay out at the beginning why exactly we think Hippocratic medicine changed things, or at least is inconsistent with this court's case law. [00:03:33] Speaker 08: So you're saying Hippocratic Medicine categorically says something that forces a diversion of resources can't be injury? [00:03:41] Speaker 02: Not categorically, but I think in the broad way in which it's applied, has been applied in some cases in this circuit, I think doesn't work anymore. [00:03:49] Speaker 12: What are you referring to when you say that the circuit has sort of categorically allowed diversion of resources by itself? [00:03:57] Speaker 02: So I think there have been several cases in which the diversion has been largely voluntary, and that's really the problem. [00:04:04] Speaker 02: So I think Sabra is a good example, and it's one of the cases that the panel opinion talks about, where the actions that were really at issue there were not directly affecting the organization there in the same way that the Havens Realty Actions were affecting HOME, the organization in that case. [00:04:21] Speaker 02: And instead, the diversion of resources was much more voluntary on the organization's part. [00:04:26] Speaker 02: And that I think is probably or almost certainly inconsistent with how Hippocratic Medicine views the diversion of resources piece. [00:04:36] Speaker 02: And they spoke to it very specifically. [00:04:37] Speaker 02: As to diversion of resources, Hippocratic Medicine said it was incorrect, that's the word they used, to say that standing exists when an organization diverts its resources in response to a defendant's actions. [00:04:48] Speaker 02: And that's a quote. [00:04:49] Speaker 12: So the way I see it, the plaintiffs, to establish standing here, they need to show that the new statute, the cancellation provision, so I'll just use that term. [00:04:59] Speaker 12: I think that's the term you use, arguably requires the county recorder to cancel a person's last in time registration, which would then directly impair their core activity of registering voters, because perhaps somebody that they register to votes knew registration would be canceled. [00:05:18] Speaker 12: Do you agree with that? [00:05:20] Speaker 02: I think I would take issue at a couple places. [00:05:23] Speaker 02: One is, I don't necessarily read plaintiffs to be saying that this statute will necessarily require cancellation of registrations. [00:05:33] Speaker 02: I read them to say that the statute at least leaves open that possibility, which I think [00:05:37] Speaker 02: then gets you to a more complicated causation analysis. [00:05:41] Speaker 02: The other point that I think is important is use the word arguably. [00:05:46] Speaker 02: And I think arguably is not necessarily the standard as it relates to how this court looks at a statute in the context of the cancellation provision. [00:05:53] Speaker 02: The court has used the word arguable in terms of looking at statutory interpretation at the standing phase of the inquiry. [00:06:00] Speaker 02: But those cases in which the word arguable has been used are like the felony provision here, where it's a pre-enforcement challenge against a statute where the plaintiff is potentially facing consequences for their actions. [00:06:13] Speaker 02: And there's good reason to apply a more liberal standard there. [00:06:16] Speaker 02: And the court has said many times that it does apply a more liberal standard in those cases because activities might be chilled and cases may never get to the court because people may not want to face criminal prosecution. [00:06:26] Speaker 03: Council you had talked in footnote three to your response to the pfReb you referred to the panel opinion and their use of the term already existing core activities and You described it in your footnote as this temporal qualifier is dictum [00:06:46] Speaker 03: And, I mean, we're obviously as an in-bank panel looking at this anew. [00:06:51] Speaker 03: If we thought that under Hippocratic medicine, we needed to look at core activities, what is Arizona's position as to whether they need to be already existing core activities or it could involve, for example, as you put in the footnote, core activities that the organization was imminently planning to engage? [00:07:15] Speaker 02: Yeah, I think our point there is that the panel opinion in our view, if read literally there, it probably applies a little bit too narrow of a test in that an organization might have completely imminent, you know, the next day they're planning to launch a brand new program. [00:07:29] Speaker 02: They've been planning it for a year. [00:07:31] Speaker 02: and then something happens from a defendant that interferes with that plan. [00:07:35] Speaker 02: I think that's probably enough. [00:07:36] Speaker 02: I think the point that the panel was probably trying to make is that what you can't have is an organization that decides to undertake new activities in response, and that that's where you really run into a problem. [00:07:48] Speaker 05: Mr. Samuels, about the in-response piece, what part of that is in Hippocratic Medicine's gloss on Haven's realty? [00:07:56] Speaker 05: Where does that come from? [00:07:57] Speaker 02: Well, Hippocratic Medicine at 395 does say that it's incorrect to say that standing exists when an organization diverts its resources in response to a defendant's actions. [00:08:08] Speaker 05: Right. [00:08:08] Speaker 05: But alone, right? [00:08:10] Speaker 05: What it's saying, I think this was your opening point, is that that's kind of the wrong question. [00:08:15] Speaker 05: The diversion of resources is a diversion. [00:08:18] Speaker 05: The question is whether the defendant's activity interferes with the plaintiff's core business. [00:08:24] Speaker 05: Yes. [00:08:24] Speaker 05: And that would be the sum of the response. [00:08:29] Speaker 05: Whether it interferes with the plaintiff's core business, whether that's in the response to or not, whether it's new, for example, to get to your point about the footnote in Judge Bennett's question, doesn't matter. [00:08:46] Speaker 05: As long as the defendant's activities are interfering with the plaintiff's core business, [00:08:52] Speaker 05: whatever it's in T1 or T-1, whatever difference it's making, that's not the inquiry. [00:08:57] Speaker 05: The inquiry is whether it's an interference, right? [00:08:59] Speaker 02: I think that's right. [00:09:00] Speaker 11: And look- So how would you define core business? [00:09:03] Speaker 11: If that's what you're saying the Supreme Court seems to suggest, to look at an organization's core business activities. [00:09:11] Speaker 11: So in response to Judge Johnstone and what, how would you define that? [00:09:15] Speaker 11: It seems that we would have to define that. [00:09:18] Speaker 02: Yeah, I think it's a difficult thing to define beyond the term itself. [00:09:21] Speaker 02: But I think it will often be pretty obvious. [00:09:23] Speaker 02: You look at cases from this court. [00:09:25] Speaker 11: Well, that's a Pollyanna thought. [00:09:29] Speaker 02: Well, my point is simply, if you look at the cases that have come from this court, we think it's typically pretty clear what the core business activities are. [00:09:37] Speaker 02: And you look here, we have not disputed that voter registration activities are a core business activity in this case. [00:09:45] Speaker 02: I don't think the court really needs to devise a test for that or more explicitly define it because I don't think that's really been where the crux of the issue is in prior cases if we were to apply Hippocratic medicine there. [00:09:59] Speaker 02: Judge Johnstone, to follow up on your point, I really think the diversion of resources piece, I think [00:10:04] Speaker 02: Part of the problem here in the Supreme Court's view, as I read Hippocratic medicine, is that too much weight has been put on diversion of resources. [00:10:12] Speaker 02: You asked earlier, is diversion of resources irrelevant now? [00:10:14] Speaker 02: And I don't think that's right. [00:10:16] Speaker 02: I do think diversion of resources may be part of the calculus. [00:10:20] Speaker 02: But as the Sixth Circuit recently observed, its case law had similarly to this court really focused on diversion of resources, really made it a core part of their test. [00:10:30] Speaker 02: And that doesn't work anymore. [00:10:31] Speaker 02: And I think that's exactly the problem here. [00:10:33] Speaker 08: Council, I want to turn you back to what I think you were going to say about arguable interpretation of the statute and how you think that's appropriate in a pre-enforcement challenge, presumably to some kind of [00:10:47] Speaker 08: criminal prohibition, like the felony provision, but I don't think you got to explain to me why you think that shouldn't be the standard here. [00:10:55] Speaker 08: What's the difference about the cancellation provision? [00:10:58] Speaker 02: Yeah, thank you very much for the question. [00:10:59] Speaker 02: I appreciate the opportunity to expand on that. [00:11:02] Speaker 02: I think the difference is, number one, that arguable standard comes exclusively from that one context. [00:11:08] Speaker 02: It does not appear, it appears in the dissent here as a broader proposition, but I don't think that there's broader support for the fact that arguable is the standard across the board. [00:11:18] Speaker 02: I think it's really important to distinguish between statutory interpretation and the merits. [00:11:23] Speaker 02: The merits as to the cancellation provision, is there a preemption problem here? [00:11:27] Speaker 02: That is the merits. [00:11:28] Speaker 02: But the statutory interpretation, while it's obviously going to inform the merits, is not the merits itself. [00:11:33] Speaker 02: And it also needs to inform the standing inquiry. [00:11:36] Speaker 02: So to use sort of a far-fetched hypothetical, imagine you had a new statute that regulates bats. [00:11:42] Speaker 02: And that's all it says. [00:11:44] Speaker 02: And the next day, you get two lawsuits filed, one by a sporting goods store that says, this regulates our sale of baseball bats, and the other from a, say, exotic pet store that says, this regulates our sale of animal bats. [00:11:56] Speaker 02: One of those two parties is not injured because the statute applies to one or the other and the court needs to look at the statute to figure out whether there is injury. [00:12:04] Speaker 08: I'm not sure I get that analogy because you're talking about if one of them said, I'm afraid that this statute is going to be enforced against me, we would be in the pre-enforcement challenge box. [00:12:15] Speaker 08: So what is different about the cancellation provision? [00:12:18] Speaker 08: What box, if it's not a pre-enforcement challenge, it's some other type of regulation that won't be enforced against any private party? [00:12:27] Speaker 08: Is that the distinction you're making? [00:12:28] Speaker 08: Is it that there's really no threat of a violation, I guess, by a private party that's going to happen that they could be afraid of? [00:12:40] Speaker 08: Is that the distinction you're drawing? [00:12:42] Speaker 02: I think the point's a little different. [00:12:43] Speaker 02: I take the point that that hypothetical could be sort of drawn into the pre-enforcement context. [00:12:47] Speaker 02: add details, but set that aside. [00:12:49] Speaker 02: The core point is that in the hypothetical, the court needs to look at the statute and interpret it in order to determine whether there is any injury, which is the number one thing you're asking at the standing inquiry. [00:13:03] Speaker 08: In the pre-enforcement context, we [00:13:05] Speaker 08: If we don't, we very much say that we're not going to actually decide whose interpretation is correct. [00:13:14] Speaker 08: And we've talked about the bizarre situation in which essentially the party's interpretation of the statute is reversed in their standing arguments, as it would be on the merits or in their own self-interest. [00:13:25] Speaker 08: But what I thought you were saying is this isn't a pre-enforcement challenge. [00:13:31] Speaker 08: And that's why we, but I'm trying to understand [00:13:35] Speaker 08: If you can put a finer point on it, why is the challenge to the cancellation provision not a pre-enforcement challenge? [00:13:41] Speaker 08: Why doesn't it fit into that box? [00:13:43] Speaker 02: Well, because in a pre-enforcement challenge like you have with the felony provision here, it's a direct regulation of the organization and its members in this case. [00:13:51] Speaker 02: And I think that's the fear, is that they're facing prosecution under a criminal provision. [00:13:55] Speaker 02: And pre-enforcement cases, in the context we're talking about, and I think that word sometimes gets used more broadly, but in this specific context, [00:14:03] Speaker 02: That's what you're talking about. [00:14:04] Speaker 02: It's a direct regulation of the plaintiff. [00:14:07] Speaker 02: That's not the cancellation provision here. [00:14:09] Speaker 12: So I'm trying to understand. [00:14:10] Speaker 12: I get your point that arguably requires or arguably allows the county recorder to cancel is not the test. [00:14:20] Speaker 12: But I think what you're really getting at is that the injury that the plaintiffs are alleging is too speculative. [00:14:27] Speaker 12: The bottom line is that we need to look to see whether [00:14:32] Speaker 12: It is likely or possible. [00:14:35] Speaker 12: And so I guess I want you to sort of tell me what is your best argument for why the allegation that this could happen and then result in an impact on their core activities is too speculative. [00:14:51] Speaker 02: Sure. [00:14:52] Speaker 02: I think there are other problems that they have and that I think a lot of their, like if you look at the declarations below, a lot of it is directed at diversion of resources and frustration of mission. [00:15:01] Speaker 02: But to answer your question. [00:15:02] Speaker 12: I think you said you're not arguing. [00:15:04] Speaker 12: I just want to make sure that I understand this. [00:15:06] Speaker 12: To Judge Johnstone's point, you are not saying that a diversion of resources can't be part of the equation for purposes of developing injury. [00:15:15] Speaker 12: In fact, you're saying that you have to have the diversion of resources connected [00:15:19] Speaker 12: to an impact to the core activities, it's the injury plus the causation piece. [00:15:26] Speaker 02: Well, I think really the core point is that the way that the test has been applied in this court is once you prove a frustration of mission and diversion of resources, you're there. [00:15:36] Speaker 02: And that's the end of things. [00:15:37] Speaker 02: And I think that doesn't work anymore, even if diversion of resources may be a relevant part of the calculus. [00:15:42] Speaker 02: That's all I was saying there. [00:15:44] Speaker 14: It may be relevant, but it would probably be unnecessary. [00:15:48] Speaker 14: I mean, in the context of the arguments relating to the felony provision, the plaintiffs here don't have the same type of standing issue that they have with respect to the cancellation one, but you could say if they have standing there and they face a risk of pre-enforcement that maybe they're diverting resources [00:16:07] Speaker 14: in the course of trying to figure out whether the felony provision applies to them and adjust their conduct accordingly. [00:16:14] Speaker 14: But we don't need the diversion of resources. [00:16:16] Speaker 14: That's just kind of an additional way of thinking about it. [00:16:19] Speaker 14: But if they already have standing as to the felony provision, the diversion of resources doesn't add anything? [00:16:25] Speaker 02: Well, I think that's mostly right in the sense that what I was trying to get at in answering Judge Johnstone's question is that the core inquiry is really not focused on diversion of resources. [00:16:34] Speaker 02: Now it's focused on the interference with activities. [00:16:36] Speaker 02: And as it relates to the felony provision, I think there are several other problems with plaintiff standing here beyond any statutory interpretation questions where we think they have a problem. [00:16:47] Speaker 02: But we think the panel opinion on that front, on standing, really reads out the other Thomas factors that Thomas has said really are important, including whether there's been a real threat of enforcement and whether there's any history of enforcement. [00:17:00] Speaker 02: The panel opinion, I think, seizes on the first factor, which is whether there's a concrete plan to violate the law. [00:17:06] Speaker 02: and really stops its analysis there and we think that's problematic. [00:17:09] Speaker 08: Counsel, if I understand your argument about the cancellation provision correctly is that it's really just not regulating private conduct at all. [00:17:18] Speaker 08: It's really a reflection of what the state's sort of internal process is for processing voter registrations. [00:17:25] Speaker 08: And that's why the whole rubric of scanning that we've developed in the pre-enforcement context is not applicable. [00:17:31] Speaker 08: Am I understanding your argument correctly? [00:17:33] Speaker 02: I think that's right. [00:17:33] Speaker 02: I mean, the direct regulation of the cancellation provision is of government actors. [00:17:37] Speaker 02: It's not to say that there couldn't be some effect on private actors at some point. [00:17:40] Speaker 02: I want to be clear about that. [00:17:41] Speaker 08: It's not like a private citizen could ever be hauled into court under that provision. [00:17:48] Speaker 02: No, certainly it's very distinguishable from the felony provision in that way. [00:17:54] Speaker 08: And then I know there are other questions, but I do want to just talk about the credible threat analysis for the felony provision. [00:18:01] Speaker 08: In my understanding that there is relevant disavowal here. [00:18:07] Speaker 08: So you are speaking for the state when you say that the state does not interpret the felony provision in the way that plaintiffs fear. [00:18:16] Speaker 02: Well, I want to be clear. [00:18:17] Speaker 02: I speak for the attorney general. [00:18:18] Speaker 02: There are county attorneys who have prosecution authority in Arizona. [00:18:21] Speaker 02: They were not named in this case, though, so I don't. [00:18:22] Speaker 08: You're speaking for the state attorney general's office in official capacity. [00:18:26] Speaker 08: Absolutely. [00:18:27] Speaker 08: And it would be that specifically that mechanism for voting does not include registering voters and that the state is unequivocally or your client is unequivocally disavowing enforcement. [00:18:43] Speaker 02: against individuals who merely engage voter registration. [00:18:57] Speaker 02: It's hard to imagine how you could have more clarity on this from the Attorney General. [00:19:00] Speaker 13: And Mr. Sam, what's your best case to support your argument that the AG's disavowal of enforcement of the federal provision against voter registration actually supports a finding of no standing? [00:19:14] Speaker 02: I think the best is Johnson v. Stewart, which is the case about Oregon textbooks. [00:19:19] Speaker 02: In part to my point earlier, the court looked at the statute and interpreted it, found that it did not apply to the teachers who were the plaintiffs in question there, and included language that said the attorney general of Oregon has repeatedly disavowed any interpretation of the statute that would make it applicable in any way to teachers. [00:19:38] Speaker 02: And I also think there's a second important point, which is the failure to disavow has been really important in other cases. [00:19:44] Speaker 02: And if the failure to disavow matters, we think that disavow has to. [00:19:48] Speaker 13: Can you point to any representation or other guidance from your office, not including the litigation documents, that make clear that the [00:20:01] Speaker 13: that the felony provision will not be enforced against plaintiff organizations for their voter registration activities. [00:20:08] Speaker 02: It has been in the context of this case. [00:20:10] Speaker 02: There's not been separate formal guidance. [00:20:13] Speaker 02: I think there was suggestion at one point that there could have been an opinion from the attorney general. [00:20:17] Speaker 02: That actually only happens in response to a request from a state official, which hasn't occurred here. [00:20:22] Speaker 02: And this statute was enjoined right at the beginning. [00:20:24] Speaker 02: So I mean, it would have been, I think, it wouldn't have made a lot of sense for either the prior attorney general or the current one. [00:20:30] Speaker 02: to be talking about this very much outside the context of this case, which was the immediate focus. [00:20:35] Speaker 05: Well, Mr. Samuels, the Secretary of State has also asked, right, the prior Secretary of State asked us to adopt an interpretation to say that if you don't have standing, because this doesn't apply to you, that is also our, at least, our tentative reading of that law, right? [00:20:51] Speaker 02: Right, that it would not apply to the plaintiffs. [00:20:53] Speaker 12: Yeah. [00:20:53] Speaker 12: Mr. Samuels, in your view, which elections procedure manual [00:20:58] Speaker 12: governs the analysis with respect to this plaintiff standing in this case? [00:21:04] Speaker 02: Yeah, I think it's tricky at this point, because in the district court, the district court was appropriately focused on the 2019 election procedures manual. [00:21:12] Speaker 02: There has since been another one, as Your Honor likely well knows, that was enacted in 2023. [00:21:17] Speaker 02: I think in particular, because this is a preliminary injunction posture, it's a little tricky to say that the 2023 EPM doesn't matter at all. [00:21:28] Speaker 02: It's a little hard to kind of put blinders on and ignore it. [00:21:30] Speaker 02: I'm not sure there's significant relevant differences for the analysis here though. [00:21:34] Speaker 12: I agree with you. [00:21:35] Speaker 12: And I think for purposes of the provision that I'm sort of focused on in the EPMs, both the 2019 and the 2023 manuals have language that deals specifically with the merging and cancellation of registrations. [00:21:48] Speaker 12: And I wanted to ask you, you know, the county recorders are bound by the provisions in the EPM. [00:21:53] Speaker 12: And it discusses the EPM, both versions, regardless of the one we're looking at, talk about the merging and cancellation of duplicate records. [00:22:01] Speaker 12: And there is a number of things in the record that the defendants have put in that talk about the continual handling of registrations that are made in two counties. [00:22:15] Speaker 12: And this is not something that has just started to happen since the enactment of this particular piece of legislation. [00:22:21] Speaker 12: Persons in Arizona have been [00:22:23] Speaker 12: moving from county to county and registering. [00:22:25] Speaker 12: And so I just want to clarify that it's your position that that merging and cancellation of duplicate records is the process that is used now just as it was previously. [00:22:41] Speaker 02: Yes, that that's right your honor, and I think that process was largely the result of several other provisions of law It was kind of the inevitable result even before this statute would have ever been in effect Even though it's been enjoined and our counties required to maintain records of any cancellations That I believe so I actually don't know the answer to that for sure, but I do believe so I believe so too and are you aware of any instances where a county recorder is canceled and [00:23:07] Speaker 12: A last in time or a new registration of a person as opposed to the first in time or an old registration. [00:23:14] Speaker 02: I don't think there's been any evidence presented of instances like that. [00:23:18] Speaker 02: I'm not aware of any separately, Your Honor. [00:23:20] Speaker 12: Okay. [00:23:21] Speaker 12: And the EPM includes procedures that counties have to follow before canceling a voter registration. [00:23:27] Speaker 12: based on a change of address, the NCOA process, do those provisions apply to cancellations under this new statute 16165? [00:23:38] Speaker 02: Well, I think the new statute is largely aimed at the same thing, which is voters who are changing address. [00:23:47] Speaker 02: And so I think, I'm not sure this is directly responsive to your question, but I think the important point here is, [00:23:52] Speaker 02: really nothing has changed in the secretary of state about that uh... in the district court below during the state briefing which is that with or without this law the procedures were the same [00:24:03] Speaker 03: With regard to the NVRA, does the Attorney General have a position as to whether the language in the NVRA, unless the registrant confirms in writing, means that there has to be direct communication between the register [00:24:25] Speaker 03: registrar and the voter, or what Judge Lee put in his concurrence, reading it a different way, something else or no position. [00:24:35] Speaker 02: Yeah, I'll largely defer to Ms. [00:24:37] Speaker 02: Olson on this, who's planning to talk about the merits. [00:24:39] Speaker 02: I will say the Attorney General has joined in the merits arguments here, and I think one of those arguments is that there is not direct communication required with the prior county recorder, so long as that county recorder has [00:24:52] Speaker 02: documentation in front of it that shows that the voter has signed a new registration. [00:24:57] Speaker 03: Along the lines of the concurrence that Judge Lee wrote? [00:25:00] Speaker 02: Yes. [00:25:01] Speaker 03: Okay, thank you. [00:25:04] Speaker 13: Thank you. [00:25:04] Speaker 02: Thank you, Your Honor. [00:25:21] Speaker 06: Good afternoon, Your Honors. [00:25:22] Speaker 06: May it please the Court, Sean Janda for the United States. [00:25:25] Speaker 06: I think it might be helpful to start this morning by taking a step back just to articulate the two principles that, taken together, I think resolve the organizational standing question presented by this appeal. [00:25:36] Speaker 06: Number one, as the Supreme Court has long made clear, no plaintiff, organization, or individual has a cognizable interest in his moral or ideological views, and so doesn't suffer an Article III injury when a defendant takes actions that impair those policy preferences. [00:25:52] Speaker 06: And then second, no plaintiff, again, individual or organization, can generate injury where none previously existed by choosing to expend resources in response to a defendant's conduct. [00:26:03] Speaker 06: And that's the principle that the Supreme Court articulated particularly clearly with respect to organizations in Hippocratic medicine. [00:26:09] Speaker 06: And I think if you put those two principles together, that's sort of exactly the theory of standing that the plaintiffs here are advancing. [00:26:16] Speaker 06: So on the front end, I don't take the plaintiffs to argue. [00:26:20] Speaker 06: consistent with that first principle, that they themselves would suffer an injury if an Arizona county recorder accidentally canceled a voter's wrong registration at some point in the future. [00:26:31] Speaker 06: The voter would certainly be injured. [00:26:33] Speaker 06: That would be contrary to the plaintiff's moral ideological policy preferences, but it wouldn't directly injure the plaintiff's. [00:26:40] Speaker 06: And so if that doesn't directly injure the plaintiffs, the plaintiffs cannot then generate a cognizable injury by choosing to expend or divert resources to ameliorate the possibility that that will happen in the future. [00:26:53] Speaker 10: But diversion of resources can still be relevant to the question of whether this impacts their core business. [00:27:01] Speaker 10: Can it or do you disagree with that? [00:27:02] Speaker 06: So I think Judge Bress may have hit the nail on the head earlier, which is that if you have a direct injury from the defendant's conduct, the fact that you are expending or diverting resources may well be evidence of the effect that the defendant's conduct has on you. [00:27:19] Speaker 06: And it may well help illustrate that injury. [00:27:24] Speaker 06: But you cannot, if there is no injury in the first place, you cannot spend your way to standing by expending resources to generate an injury. [00:27:32] Speaker 06: And so I think what the plaintiffs are really lacking in this case is identifying that first injury or the baseline injury that they are then saying they will expend resources or divert resources in response to. [00:27:46] Speaker 06: And without that, then I think the whole standing claim just falls apart. [00:27:50] Speaker 08: Well, there is essentially an argument or concession [00:27:56] Speaker 08: It's undisputed that a core activity of plaintiff organizations is voter registration. [00:28:01] Speaker 08: So if the law, I think the theory of injury here is that the law effectively requires them to change how they provide that core service. [00:28:15] Speaker 08: That to me is categorically different from the mere policy advocacy discussed in Hippocratic Oath or truly voluntary diversion of resources because if they just [00:28:26] Speaker 08: kept on registering voters in the same way that they always have, they would not be doing it accurately. [00:28:31] Speaker 08: At least that's the theory of injury being promoted. [00:28:35] Speaker 06: So I don't think that's the theory of injury, Your Honor. [00:28:37] Speaker 06: I think the theory is that if they continue doing what they were doing before, [00:28:41] Speaker 06: it would be less effective in some sense because some number of the people who they register may end up having the registrations cancelled down the line. [00:28:49] Speaker 06: But I think, going back to the first principle, if that happens, and I think the court can assume for purposes of this argument, that [00:28:57] Speaker 06: the challenge law may lead that to happen in some number of circumstances. [00:29:03] Speaker 06: It's hard to see how the plaintiffs themselves are injured by that cancellation down the line, by the cancellation of a voter's registration, a voter who is not the plaintiffs. [00:29:12] Speaker 06: That voter is certainly injured by that. [00:29:14] Speaker 06: The plaintiff, as a third party, is not injured by that. [00:29:18] Speaker 08: And so to the extent... Well, how is that different from Haven's Realty, where, I mean, technically, the [00:29:23] Speaker 08: The organization that was just providing housing referral information, they weren't directly injured by someone who came to use their services not getting the apartment they wanted. [00:29:34] Speaker 08: Really, it was just the service that they were providing was being impaired by the allegedly unlawful conduct. [00:29:41] Speaker 06: So I don't think that's correct. [00:29:42] Speaker 06: In his initial matter, the Supreme Court in Hippocratic Medicine described Havens as an unusual case that shouldn't be extended beyond its context. [00:29:50] Speaker 06: And I think a key part of the context in Havens is that the organization there asserted that they had their own legal right to truthful information from the defendant. [00:30:00] Speaker 06: The Fair Housing Act gave them [00:30:02] Speaker 06: the legal right to receive truthful information, and the defendant impaired that legal right by providing their employees untruthful information. [00:30:11] Speaker 06: And so the sort of place that the organization in Haven started was with that direct interference from the defendant. [00:30:19] Speaker 12: How do you square your argument that you're making right now with the Fourth Circuit's decision in the RNC case from just several months ago? [00:30:27] Speaker 06: I'm not sure I'm prepared to speak specifically about the RNC case, Your Honor. [00:30:32] Speaker 06: We haven't taken a position on that. [00:30:34] Speaker 12: Well, I mean, I think the problem with your argument is that if the, so in the RNC case, you have the same situation where you have an organization that is registering voters or has an interest in particular members of their party being able to have a valid registration to vote. [00:30:54] Speaker 12: And they allege and ultimately are found to have standing by the Fourth Circuit based on the fact that they're worried that their core activities, which is registering voters, will be impacted negatively by the conduct of the government in potentially canceling registrations. [00:31:14] Speaker 06: I mean, so I don't want to speak specifically to that case without having the opportunity to read it and sort of understand exactly what the Fourth Circuit's reasoning is. [00:31:22] Speaker 06: But I think that the core principle, again, is that nothing about what the organizations are actually doing is regulated by the cancellation provision. [00:31:32] Speaker 06: And a helpful counterpoint here is the felony provision, which at least in- What you're basically arguing for is no organizational standing then. [00:31:38] Speaker 12: You're saying that only individuals who have direct injury to themselves are [00:31:42] Speaker 12: are able to establish standing to bring a claim challenging the cancellation provision. [00:31:50] Speaker 06: So I think the Supreme Court made very clear in Hippocratic Medicine that only a plaintiff who experiences a direct injury to themselves may bring a suit, saying aside sort of the limited associational standing theory where an association might step into the shoes of a member who himself or herself has standing. [00:32:06] Speaker 06: And I think an organization can be directly affected, and the felony provision is a very helpful counterpoint here. [00:32:12] Speaker 08: The spring order has drawn a distinction between direct injury and being directly the object of regulation. [00:32:18] Speaker 08: So you can be not the direct object of regulation, but suffer an injury. [00:32:24] Speaker 06: So that's true. [00:32:25] Speaker 06: There are some limited circumstances. [00:32:27] Speaker 06: And I think the Supreme Court has been very clear that it's substantially harder to establish standing when you are not the object of the defendant's conduct. [00:32:34] Speaker 06: And here, again, it's not just that the plaintiffs aren't directly regulated. [00:32:39] Speaker 06: It's that the plaintiffs don't have an independent legally cognizable interest in whether any particular voter, even one who they sort of help sign up to vote, whether that voter maintains his voter registration. [00:32:51] Speaker 06: And I think a helpful analogy here might be the Supreme Court's Kowalski case, which we discussed in our brief. [00:32:57] Speaker 06: And there, I think the Supreme Court makes it very, very clear that lawyers don't have an independent litigable interest in the laws that affect their clients. [00:33:06] Speaker 06: And so the Supreme Court says, in that case, an organization of medical malpractice attorney could not [00:33:14] Speaker 06: Sue to challenge a tort reform statute because the tort reform statute doesn't directly injure the attorney even if the attorney you know might choose to Expend resources to develop new arguments or change the way ask you the same question. [00:33:27] Speaker 03: I ask counsel for the Attorney General [00:33:29] Speaker 03: in the Nvr8 does the United States have a position as to Whether the language the registrant has changed residents unless the registrant confirms in writing that the registrant has changed residents means in Every case that there has to be a direct communication with the the registrant or as per Judge Lee's concurrence that that confirms can be satisfied in other ways and [00:33:59] Speaker 06: We have not taken a position in this case on any of the merits questions, including how the MVRA applies to the challenge law. [00:34:07] Speaker 06: We are sort of focused in this case only on the organizational standing question. [00:34:11] Speaker 05: Mr. Jan, then on that point, and I don't know whether you're prepared to speak on any of the other cases, but if we look at the other courts of appeals that have addressed standing issues in the wake of Hippocratic medicine, some of them find standing, some of them don't find standing. [00:34:29] Speaker 05: None of them frame the issue as whether the crux of the inquiry is whether it is in response to, that's disqualifying that it's a diversion of resources in response to. [00:34:44] Speaker 05: They'll frame it, I think, as you suggested, about whether, as Hippocratic Medicine says, whether it interferes with the core business activities. [00:34:54] Speaker 05: So whether it was in response to, [00:34:56] Speaker 05: is kind of a sidelight here. [00:35:00] Speaker 05: I mean, can you show, with respect to, because the panel opinion emphasized the point in response to. [00:35:06] Speaker 05: It had to be, if it was in response to, then that was kind of a danger sign. [00:35:10] Speaker 05: Can you identify any other court of appeals that's taken that approach as opposed to asking the question that the Supreme Court did? [00:35:17] Speaker 05: Does it interfere with their core business activities? [00:35:19] Speaker 06: So that's not, I wouldn't say exactly how I view the panel opinion. [00:35:22] Speaker 06: I think the panel opinion, and certainly we think the Supreme Court's opinion, again, is focused on whether [00:35:27] Speaker 06: there is a direct injury from the defendant's conduct. [00:35:29] Speaker 06: And the plaintiffs can't generate an injury by expending resources in response to the first place. [00:35:37] Speaker 07: Could you give an example of that sort of injury? [00:35:39] Speaker 07: I know that Hippocratic Medicine referred to a retailer injured by a manufacturer's defective product as an example. [00:35:48] Speaker 07: What would be an example that you would agree would be a direct injury? [00:35:52] Speaker 06: So I think that's a helpful analogy that the Supreme Court used in thinking about Havens Realty, which certainly the organization there experienced a direct injury because it was provided defective information directly by the defendant. [00:36:05] Speaker 06: And that's a direct injury to the organization. [00:36:08] Speaker 06: I think the cancellation, or sorry, the felony provision in this case is another sort of helpful example if you take the plaintiff's view of how that provision works. [00:36:17] Speaker 06: The provision, in their view, [00:36:19] Speaker 06: directly regulates the activities that they're engaging in by exposing them to potential criminal enforcement based on the way that they are registering voters. [00:36:26] Speaker 06: And so that's directly affecting or regulating the activities that they're engaged in. [00:36:32] Speaker 06: It's not affecting or regulating third parties like the voter registrants themselves that just then sort of has the follow-back effect on the organization. [00:36:41] Speaker 05: But in Havens, why not the employees, testers? [00:36:43] Speaker 05: I mean, in other words, the employment relationship didn't turn on as much as the fact that they were [00:36:48] Speaker 05: you know affiliated or or that the the the organization worked on behalf of the people who got the misinformation and those similarly situated. [00:36:56] Speaker 06: I don't think so your honor I mean the organization there have both sort of clients and employees and obviously an organization sort of acts through people. [00:37:04] Speaker 06: like its employees. [00:37:06] Speaker 06: And so there, and I think in the way the Supreme Court conceptualized this in Hippocratic Medicine, is that the employee sort of standing in for the organization was directly given untruthful information, like a retailer who has provided a defective good by a manufacturer. [00:37:19] Speaker 06: And so that sort of direct injury on the employee in his employment and therefore the organization, I think is the baseline thing that generated the standing in Havens. [00:37:30] Speaker 10: So in your view, if it had been Havens [00:37:33] Speaker 06: So black clients that had been provided the information and not their employees you think they wouldn't have had standing I think in that circumstance, you know, certainly setting aside questions about sort of tester standing that yeah the people who received the untruthful information might well have standing the the organization that sort of has a [00:37:54] Speaker 06: moral, ideological, policy interest in helping those people wouldn't have standing independent of their ability to sort of stand in the shoes of those clients. [00:38:05] Speaker 06: And so here, again, I think there's a really key legal distinction between the voters who the plaintiffs might help and the plaintiffs themselves. [00:38:13] Speaker 06: And the voters absolutely have a legal interest in not having their royal registrations canceled. [00:38:18] Speaker 06: And if their registrations are canceled, I'm sure they would have standing to bring suit. [00:38:21] Speaker 06: But the plaintiffs, as kind of third parties, [00:38:24] Speaker 06: the lawyers in Kowalski helping their clients don't have an independent interest in what happens sort of down the line with the voters. [00:38:31] Speaker 13: All right. [00:38:31] Speaker 13: Thank you. [00:38:32] Speaker 06: Thank you. [00:38:43] Speaker 01: Chief Panel, may it please the Court, Tracy Olson and Brett Johnson on behalf of Yuma County Republican Committee. [00:38:49] Speaker 01: I'd like to try to reserve two minutes for rebuttal. [00:38:52] Speaker 01: To the extent this Court finds standing, it must reach the merits of the felony and the cancellation provisions. [00:38:59] Speaker 01: Plaintiffs ask this Court to read the challenged laws in isolation, but central to the interpretation of both are their statutory context. [00:39:07] Speaker 01: The relevant statutory context here is the entirety of Title 16, which sets out a comprehensive framework for the administration of elections, including subjects such as voting and voter registration. [00:39:20] Speaker 01: Title 16 is supported by Election Procedures Manual, which is a document published every two years by the Secretary of State and does carry the force of law. [00:39:28] Speaker 01: The cancellation felony provisions are just two pieces of this overall election framework in Arizona. [00:39:34] Speaker 01: And when they're read in their statutory context, any ambiguity or confusion simply does not exist. [00:39:41] Speaker 01: As observed by the entire panel, the felony provisions phrase mechanisms for voting when read in statutory context is not unconstitutionally vague. [00:39:51] Speaker 01: Mechanisms for voting refers to casting a ballot, and this reading is confirmed by the example in the felony provision [00:39:57] Speaker 01: ARS 16-1016 text and title, both of which refer to illegal voting, not illegal registration. [00:40:06] Speaker 01: In fact, the legal voter registration activities that plaintiff claim fall into the scope of the felony provision are criminalized by a completely different statute. [00:40:16] Speaker 01: At bottom, registering to vote and voting involve different processes with different consequences. [00:40:22] Speaker 01: As to the cancellation provision, its statutory context also supports a finding that there's no conflict with the NBRA. [00:40:30] Speaker 13: Can I just ask a question? [00:40:32] Speaker 13: As for the cancellation provision up here, plaintiffs argue that it is unclear based on the statute whether the county recorders would counsel the older or newer voter registration. [00:40:45] Speaker 13: Can you help clarify your understanding of how the provision would work in practice [00:40:51] Speaker 01: Yes, Your Honor, and I think if we take a step back and look at the framework that the statutory context gives us, it starts with kind of a four-step process. [00:41:01] Speaker 01: The first is the county recorder receives the registration. [00:41:04] Speaker 01: That's established by ARS 16-164, and the county recorder then is supposed to update that process. [00:41:11] Speaker 01: That statute specifies between new and old registrations. [00:41:16] Speaker 01: Then later in that statute, it talks about notating the cancellation. [00:41:21] Speaker 01: But 16-164 doesn't actually authorize the cancellation. [00:41:24] Speaker 01: It just instructs the recorder to notate it. [00:41:28] Speaker 12: I don't think that the statute uses the word old or new. [00:41:32] Speaker 12: I don't think any of the statutes that you're referencing or the provisions in the EPM say old or new. [00:41:39] Speaker 12: Instead, they talk about the uploading of registrations and then the sort of merging and cancellation of duplicate records. [00:41:49] Speaker 01: ARS 16-166 does discuss the receipt of the new registration form and updating the... I'm sorry. [00:41:57] Speaker 01: I thought I heard you say 164. [00:41:58] Speaker 01: 164 also talks about the new registration form as well. [00:42:02] Speaker 01: It talks about the receipt of a new registration form. [00:42:06] Speaker 01: So they both talk about when you receive a new registration form and you're correct. [00:42:10] Speaker 01: I see what you're saying. [00:42:11] Speaker 12: So you're talking about when you have just a single registration form. [00:42:14] Speaker 12: You're not talking about the reconciliation of duplicate records. [00:42:18] Speaker 01: Well, I think ARS 16-164 speaks to the reconciliation of duplicate records. [00:42:23] Speaker 01: And I think your comments earlier today are instructive, and the EPM walks us through this. [00:42:29] Speaker 01: And in our view, the EPM's codifying what these statutory steps say. [00:42:35] Speaker 01: The one difference between the EPM and what was happening here with the statutes is that there wasn't express cancellation provision of what was happening in 16-164. [00:42:45] Speaker 01: So it does reference the new registration form there, and it talks about modifying that record of registration to reflect the changes of addresses. [00:42:54] Speaker 01: And then it goes on to say that then they're supposed to notate the cancellation of the old registration. [00:42:59] Speaker 01: And so in our view, 16-165 supplements 16-164 in order to authorize what's already happening. [00:43:08] Speaker 12: And to, in response to Chief Judge Murguia's question, this is the process that has been [00:43:14] Speaker 12: happening with the county recorders for time in memoriam correct. [00:43:18] Speaker 01: That's what the record supports yes Another question that was asked earlier was about the [00:43:26] Speaker 01: whether or not there's direct communication with the voter and the county recorder. [00:43:30] Speaker 01: And that's not necessarily what the NVRA requires. [00:43:34] Speaker 01: I think it's instructive that the NVRA uses the word state shall not remove the name of the registrant. [00:43:41] Speaker 01: And if you look to section 20509 of the NVRA, it talks about how the states are supposed to manage their responsibilities under the law. [00:43:49] Speaker 01: And it delegates that task to the chief election officer in the state. [00:43:55] Speaker 01: And in Arizona, that's the secretary of state. [00:43:58] Speaker 01: So the secretary of state manages that through our statewide voter database, which is established by ARS 16-168J. [00:44:07] Speaker 01: And the county recorders manage that statewide voter database. [00:44:11] Speaker 01: And so when county recorders receive something, [00:44:15] Speaker 01: It's done on behalf of the state for purposes of the NVRA. [00:44:18] Speaker 01: And I think that's completely consistent with the text of the statute. [00:44:22] Speaker 11: So I heard you say, do we have to decide the felony part of this? [00:44:27] Speaker 11: You said we had to. [00:44:29] Speaker 01: If you find standing on the felony provision, you would need to reach the merits. [00:44:35] Speaker 11: Well, I sort of thought this was before us on the organizational standing. [00:44:40] Speaker 11: But we have to decide that part of the case as well. [00:44:44] Speaker 01: Well, Your Honor, the panel decision was vacated completely, so that issue has been vacated. [00:44:51] Speaker 01: There's no guidance on that issue at this point. [00:44:54] Speaker 01: We think the panel concurrence has a good interpretation of the felony provision and would invite this panel to adopt that analysis as to the interpretation of what it... The felony provision, that was dealt with in the panel majority. [00:45:08] Speaker 01: Correct. [00:45:10] Speaker 14: But it's vacated. [00:45:11] Speaker 14: So we would have to, if we conclude their standing on that, we would reach it? [00:45:15] Speaker 01: Yes, Your Honor. [00:45:19] Speaker 01: One of the other questions that was asked was related to, [00:45:22] Speaker 01: And I just want to return back to the cancellation provision and understanding what's happening here. [00:45:27] Speaker 01: I think even if this panel disagrees that the counter recorders can collectively manage the state's responsibilities under the NVRA, I think this is still consistent with the Seventh Circuit cases. [00:45:41] Speaker 01: If you look to the end of League of Women Voters versus Sullivan, it talks about how [00:45:46] Speaker 01: there's no problem under the NVRA when officials are passing along a voter's registration or a signed sworn statement. [00:45:53] Speaker 01: And that's exactly what would be happening here, is that the signed sworn statement that comes from the voter is being passed along between county recorders. [00:46:03] Speaker 01: But before we get to D1, which is where the panel concurrent suggests that the NVRA has no conflict, it's our position that [00:46:12] Speaker 01: Arizona's system complies with A3A of the NVRA, and the reason for this is because in Arizona, voter registration is what we call a pick one paradigm. [00:46:24] Speaker 01: And what I mean by this is that you can only be registered to vote where you reside, and you can only reside in one place for the purposes of voting. [00:46:31] Speaker 01: And thus, a person can only be registered to vote in one place. [00:46:36] Speaker 01: And because you have to pick one, the submission of a sworn registration form, which is supported by proof of residence by registering in that new county its request to cancel that old registration. [00:46:49] Speaker 01: And that's supported by the House and Senate reports that we submitted with our briefing. [00:46:55] Speaker 01: As to the felony provision one other point I wanted to speak on before I sit down was that Actually, I'm going to reserve the rest of my time for rebuttal. [00:47:07] Speaker 01: Thank you [00:47:34] Speaker 09: Yes, just one moment Okay, thank you, please go ahead proceed Thank you Good afternoon chief judge Maria members of the panel and may it please the court My name is Aria branch on behalf of the plaintiff at police This case presents an important threshold question do voter registration organizations like the plaintiffs here and [00:48:03] Speaker 09: have standing to challenge a law that undermines their work by increasing the likelihood that voter registrations will be canceled and that will in turn make it harder for them to successfully register voters. [00:48:19] Speaker 12: I think, succeed on your argument that you're making here. [00:48:22] Speaker 12: And I'm just going to focus on the language that you just used. [00:48:26] Speaker 12: You have to be able to show that there is going to be conduct on the part of the defendants that makes your work, the plaintiff's core activities of registering voters, impaired or negatively impacted. [00:48:41] Speaker 12: So you would agree that you have to establish at a baseline [00:48:46] Speaker 12: that the cancellation provision is likely to [00:48:52] Speaker 12: result in county recorders canceling the last-in-time registration of voters that you've registered, correct? [00:48:59] Speaker 09: We would agree that the operation of the cancellation provision needs to result in the cancellation of the voter registration that an individual intends to use, which is likely going to be their last-in-time voter registration. [00:49:16] Speaker 12: So assuming that's true, and I think that's right, [00:49:21] Speaker 12: Help me understand what best evidence that you have in the record to establish that that is something that is likely to occur. [00:49:30] Speaker 12: And if it is just the plain language of the statute that doesn't use the words first or last or new or old or first in time and last in time, if that's really all that you're relying on, which is sort of what I understand your argument to be because the language may not be as clear as you want it to be, what do we do with the mountains [00:49:50] Speaker 12: evidence in the record that has been put in by the defendants, that that's never been done that way, that there are provisions in the EPM that articulate a process for county recorders to merge and cancel duplicate records, which have been happening for a long time in Arizona, and that there are declarations and statements from the attorney general, the secretary of state, and the county recorders to that effect. [00:50:17] Speaker 09: So in our view, the cancellation provision requires the cancellation of registrations based on just the normal operation of state law. [00:50:27] Speaker 09: And this was what the dissent pointed out. [00:50:28] Speaker 09: And I think it is extraordinarily important for this court to bear in mind that there are two discrete prongs of the cancellation provision. [00:50:37] Speaker 09: The first is the one that the defendants have focused on throughout this case. [00:50:43] Speaker 09: And that is the one that requires an Arizona county recorder to cancel a registration when they receive confirmation that a voter has registered to vote in another Arizona county. [00:50:53] Speaker 09: The second discrete prong of the cancellation provision requires a county recorder to cancel a registration when they receive credible information that a person has registered to vote in a different county. [00:51:06] Speaker 12: But there's a second part to that. [00:51:08] Speaker 12: It isn't just that they shall cancel the registration when they get that credible information. [00:51:13] Speaker 12: They then have to undergo the process that they would in the first instance, which is to confer with or receive confirmation or do an investigation that involves looking at the database and communicating with the county recorder from the other county. [00:51:29] Speaker 09: Well, I think the important thing to focus on with respect to that second provision is the fact that it can. [00:51:35] Speaker 09: And the secretary of state has interpreted it this way, but it also applies to out of state registrations. [00:51:41] Speaker 09: So for example, if someone is registered to vote in California and they move from California to Arizona, they registered to vote in Arizona. [00:51:50] Speaker 09: An Arizona county recorder may receive quote unquote credible information, which is not defined in the statute, that that person remains registered to vote in California because they didn't affirmatively cancel that registration. [00:52:03] Speaker 09: The cancellation provision only requires the county recorder to reach out to confirm that the person remains registered to vote in California. [00:52:12] Speaker 09: And according to the cancellation provision, they are then required to cancel that person's Arizona registration. [00:52:18] Speaker 09: That is the interpretation of the cancellation provision that the Secretary of State agreed with below, which is why we think it is an arguable interpretation. [00:52:27] Speaker 09: And because of it, because third parties can provide information to Arizona county recorders, [00:52:36] Speaker 09: that individuals are registered in other states. [00:52:39] Speaker 09: That can force registrations, which our plaintiff organizations have to respond to because they are in the business of voter registration. [00:52:51] Speaker 09: Essentially, the cancellation provision requires undoing their work. [00:52:54] Speaker 09: They have to respond to that. [00:52:56] Speaker 09: It actually undoes their work. [00:52:58] Speaker 09: As a result, they have had to change their practice. [00:53:01] Speaker 04: I just want to walk you through and read with you and have you respond to the Supreme Court's recent decision. [00:53:10] Speaker 04: They talk about Haven's realty and then they compare it to that case and they say, [00:53:20] Speaker 04: The associations have not claimed an informational injury, and in any event, the associations have not suggested that federal law requires FDA not apply, is because the plaintiffs have not alleged an informational injury. [00:53:37] Speaker 04: And if you agree that you haven't alleged that injury, then I don't understand. [00:53:43] Speaker 04: Now, maybe you can win under some other case, but it strikes me that what the Supreme Court just said is Havens is limited to informational injuries. [00:53:52] Speaker 04: Maybe you can satisfy the standard in some other way, but Havens isn't going to provide you the avenue to do that. [00:54:00] Speaker 09: I don't think that HAVENS is limited to informational injury. [00:54:03] Speaker 09: I think HAVENS set forth the standard three-part test for organizational standing. [00:54:10] Speaker 09: I think organizations are held to the same standing requirements as individuals, and there's nothing in HAVENS or Hippocratic Medicine that require an organization to suffer an impediment to a legal right. [00:54:24] Speaker 09: In any event here, we have brought NVRA claims, [00:54:28] Speaker 09: under the MVRA, any aggrieved party can bring a claim. [00:54:34] Speaker 09: And so we do argue that our legal right of ours has been impaired under the MVRA. [00:54:41] Speaker 05: What's your best authority for the MVRA standing? [00:54:45] Speaker 09: Under the MVRA, we have statutory standing because any aggrieved party can bring [00:54:51] Speaker 05: But that doesn't get us around the Article 3 inquiry. [00:54:54] Speaker 05: So is there a case where courts have held an NVRA statutory standing? [00:54:59] Speaker 05: What's the intersection there that would meet the Havens Test? [00:55:02] Speaker 05: I'm not sure that it is just an informational entry. [00:55:06] Speaker 05: Three sentences above, it says that it's still about interference with court business activities, but still. [00:55:11] Speaker 05: Wouldn't you still need to meet that, even if you're asserting just a statutory standing? [00:55:15] Speaker 09: Sure. [00:55:15] Speaker 09: You still have to meet Article III standing. [00:55:17] Speaker 09: My point is just that, to be clear, I don't think that organizational standing is limited to impairment of a legal right. [00:55:25] Speaker 09: I don't read havens that way, and I don't read the Supreme Court's decision in Hippocratic medicine to limit havens that way. [00:55:31] Speaker 09: I think the limitation is what Your Honor just articulated, which is plaintiffs have to show an injury or an impairment to their core business activity.