[00:00:00] Speaker 04:
in this case.

[00:00:12] Speaker 01:
Good morning.

[00:00:13] Speaker 01:
My name is Joe Nixon.

[00:00:14] Speaker 01:
I'm here on behalf of the Foundation and I'll reserve five minutes for rebuttal.

[00:00:20] Speaker 01:
The NVRA contains broad and powerful public information rights.

[00:00:27] Speaker 01:
Your decision in this case will have an impact not only on the NVRA, but all public disclosure statutes in determining who, if anyone, has the right to make claims for public documents.

[00:00:44] Speaker 01:
This court in Wilderness Society foretold your answers to the standing questions you asked us a few weeks ago in recognizing a distinction between informational injuries, which this is, and procedural injuries, which this is not.

[00:01:00] Speaker 01:
Thankfully, the Supreme Court in Aiken Public Citizen and even Haven's Realty leads us to the same conclusion you reached in Wilderness Society.

[00:01:10] Speaker 01:
Even TransUnion agrees with this court that there is a difference in Article III standing between informational and procedural injuries.

[00:01:21] Speaker 01:
Finally, this court definitively answered the preemption question earlier this year in Mi Familia Vota.

[00:01:28] Speaker 01:
This case is ripe because Mr. Nago refused the foundation's request under the NVRA

[00:01:37] Speaker 00:
for the statewide voter file a document part that claim which is that I think your claim is that Mister Nago had to give the information couldn't delegate that to the county's Chris correct.

[00:01:51] Speaker 00:
Why isn't that claim.

[00:01:53] Speaker 00:
A procedural claim.

[00:01:56] Speaker 00:
in the context of an informational request, more like the case, I think, Animal Legal Defense, where there was the reading room requirement.

[00:02:05] Speaker 00:
And we did find standing there, but in part because plaintiffs showed injury from the procedural violations in the form of delay and added expense.

[00:02:19] Speaker 01:
So the NVRA is the documents, almost a strict liability statute.

[00:02:25] Speaker 01:
the purpose of which is for election integrity and to keep current, to maintain current and accurate voter rolls.

[00:02:35] Speaker 01:
The voter roll is such a document.

[00:02:37] Speaker 01:
So Mr. Nago has it.

[00:02:38] Speaker 01:
He's required to have it under Help America Vote Act.

[00:02:42] Speaker 01:
So he has that document.

[00:02:44] Speaker 01:
We asked for it.

[00:02:45] Speaker 01:
And he didn't give it to us.

[00:02:47] Speaker 01:
That is the injury.

[00:02:48] Speaker 01:
We don't have to go beyond that at all.

[00:02:51] Speaker 01:
It's not Mr. Nago and me familiar voters very clear on this.

[00:02:56] Speaker 01:
The state of Hawaii cannot impose hurdles that interfere with people's rights under the NVRA.

[00:03:05] Speaker 02:
So we have a lot to unpack here, because it's a complicated case.

[00:03:10] Speaker 02:
And I appreciate your introduction, which was very helpful.

[00:03:13] Speaker 02:
But going back to the standing argument, and we're kind of navigating that reference in TransUnion, which you referenced, that these Sunshine cases may be different.

[00:03:27] Speaker 02:
But then the question is, isn't this more akin to a procedural violation under Spokeo, because you weren't actually denied access to the information, but just because you didn't receive from your desired party?

[00:03:45] Speaker 02:
As opposed to, say, the county folks.

[00:03:48] Speaker 01:
Right.

[00:03:48] Speaker 01:
It's not procedural.

[00:03:49] Speaker 01:
This is information.

[00:03:51] Speaker 01:
We don't have the information.

[00:03:54] Speaker 01:
Judge McCowen, you answered this question perfectly when you wrote wilderness society.

[00:04:00] Speaker 01:
You foretold us the answer.

[00:04:02] Speaker 01:
And what you wrote is, society, of course, had a procedural injury in wilderness society.

[00:04:08] Speaker 01:
And then you said, the difficulty with the society's analysis is that it simply reframes every procedural definition

[00:04:16] Speaker 01:
deprivation in terms of an informational loss.

[00:04:19] Speaker 01:
This approach would allow and run around the Supreme Court, right?

[00:04:23] Speaker 01:
Okay, so if we can't change procedural into informational for standing purposes, then states can't change informational into procedural in order to defeat standing of requesters.

[00:04:36] Speaker 01:
So this case is very much like TransUnion.

[00:04:41] Speaker 01:
Of course, TransUnion was an organization as well, excuse me, Public Citizen.

[00:04:46] Speaker 01:
Anyone where the Supreme Court wrote, anyone whose request for specific information that has been denied has standing to bring the action.

[00:04:56] Speaker 01:
The request or circumstances, why he wants the information, what he plans to do with it, what harm he suffered from the failure to disclose are irrelevant to his standing.

[00:05:06] Speaker 01:
So Hawaii has a statute that says that you've got to go to the counties.

[00:05:12] Speaker 01:
OK, so that's completely in contradiction to the NVRA.

[00:05:18] Speaker 00:
And just on the delegation claim, I want you to be very specific.

[00:05:24] Speaker 00:
Exactly what statutory provision are you saying prohibits the delegation?

[00:05:31] Speaker 01:
Yes, it is the NVRA 52 USC 20510B.

[00:05:34] Speaker 01:
20507I1.

[00:05:43] Speaker 01:
So each state shall maintain for two years and shall make available for public inspection and where available photocopying at a reasonable cost all records concerning implementation of programs and activities conducted for the purpose of ensuring accurate and currency of official list of eligible voters.

[00:06:02] Speaker 01:
That's the statute that gives us the right.

[00:06:04] Speaker 00:
You're saying that's the statute that prohibits the state from delegating to the counties.

[00:06:09] Speaker 01:
Yes, well, let me read it.

[00:06:11] Speaker 00:
Any other provision?

[00:06:12] Speaker 01:
Yes.

[00:06:13] Speaker 01:
Yes, it's 52 USC 20510B.

[00:06:19] Speaker 01:
A person who was agreed by violation of this chapter may provide written notice of the violation to the chief election official of the state.

[00:06:28] Speaker 01:
So if you combine that with HAVA,

[00:06:33] Speaker 01:
with how the requires each state to maintain in a uniform and nondiscriminatory manner a single uniform official centralized interactive computerized statewide voter registration list.

[00:06:46] Speaker 00:
So that's the document we have universal provisions you're relying on for the proposition that the state cannot delegate this duty to respond to requests under

[00:06:57] Speaker 00:
the 213.

[00:07:00] Speaker 00:
Right, it's a mouthful.

[00:07:03] Speaker 00:
So it's nothing expressly that says state cannot delegate.

[00:07:08] Speaker 00:
You're reading that as an implication of these three provisions.

[00:07:12] Speaker 01:
Is that correct?

[00:07:13] Speaker 01:
That's correct.

[00:07:14] Speaker 01:
The state can't because a delegation serves as a hurdle.

[00:07:18] Speaker 01:
And just as this court of me, Familia Vota, says,

[00:07:21] Speaker 01:
with Arizona wanted to have a little more information when people register vote.

[00:07:26] Speaker 01:
Anything that serves as a hurdle to the NVRA has been preempted.

[00:07:30] Speaker 01:
It's preempted under the elections clause.

[00:07:32] Speaker 00:
And I just want to be clear on the facts.

[00:07:35] Speaker 00:
There's no evidence or allegation in the record that you actually did

[00:07:42] Speaker 00:
the state rules for how to get the information from the counties.

[00:07:46] Speaker 01:
So what's in the records is that we went we went to the counties, the counties gave us the form the forms are in the record.

[00:07:52] Speaker 01:
We did not fill out the forms because we did not comply.

[00:07:56] Speaker 01:
The other part of our lawsuit is that the that this.

[00:07:59] Speaker 01:
The delegation to the counties.

[00:08:01] Speaker 00:
So we don't know what would have happened if you had filled out those forms and followed that.

[00:08:12] Speaker 00:
We don't know that for sure yet.

[00:08:13] Speaker 01:
The Hawaii statute says it has to be election or government purposes.

[00:08:18] Speaker 01:
Election is defined in the statute as being four against a candidate or a proposition.

[00:08:23] Speaker 01:
We're a 501c3.

[00:08:25] Speaker 01:
We don't comply with election or government purposes.

[00:08:29] Speaker 01:
We could not have ever received those from the county.

[00:08:32] Speaker 04:
We've gone to the merits and I just want to make sure I understand so we've been talking about the merits of your delegation argument but I think your answer to Judge Sung's first question which was an interesting question was

[00:08:46] Speaker 04:
that you don't think you need to go into these delegation issues for standing because you think just the denial of your request alone gives you standing?

[00:08:55] Speaker 01:
Under the NVRA.

[00:08:56] Speaker 01:
We didn't sue under Hawaii statutes.

[00:08:58] Speaker 01:
We sued under the NVRA.

[00:09:00] Speaker 01:
And if you recall, the trial court was very clear and specific how we met statutory standing.

[00:09:05] Speaker 04:
We would urge a court that that's the only- Okay, I'm not worried about statutory standing right now.

[00:09:09] Speaker 04:
I'm wondering about Article III standing.

[00:09:11] Speaker 01:
Right.

[00:09:12] Speaker 01:
Well, I think the statutory and Article 3 are synonymous in this case.

[00:09:16] Speaker 01:
We don't have to go to the counties.

[00:09:18] Speaker 01:
We don't because that's not what the NVRA requires of us.

[00:09:22] Speaker 01:
We ask the election official who has the record for the record, and he denied it.

[00:09:27] Speaker 01:
We gave 90 days notice to cure, and he didn't provide it.

[00:09:31] Speaker 01:
That's the only standing that we are required to obtain.

[00:09:34] Speaker 00:
So standing is claim specific, you agree, under

[00:09:40] Speaker 00:
Under ALTIS represent, standing is claim specific.

[00:09:44] Speaker 00:
So for your delegation claim, do you allege any injury caused by the fact of delegation other than the fact that you didn't get the information you wanted

[00:09:59] Speaker 00:
At the time from the source that you wanted yes, how does the change in source counties?

[00:10:05] Speaker 00:
Specifically in your complaint or in your response to motion dismiss.

[00:10:11] Speaker 00:
What is the injury?

[00:10:12] Speaker 00:
The harm that you rely on for standing.

[00:10:16] Speaker 00:
We don't have the statewide voter file, so it's just not having the information that you want.

[00:10:22] Speaker 01:
It's not just information.

[00:10:23] Speaker 01:
It's the statewide voter file so we get.

[00:10:26] Speaker 01:
from the counties, whatever the counties, if the counties don't have a statewide voter.

[00:10:30] Speaker 01:
Well, we don't know that because you didn't ask them, right?

[00:10:32] Speaker 01:
Well, no, we do know that.

[00:10:34] Speaker 01:
Mr. Nagel said the counties only have the county-wide files.

[00:10:36] Speaker 01:
Counties don't have, and he admitted it, only he has a statewide voter file.

[00:10:40] Speaker 00:
If you got one from all the counties, you would have it?

[00:10:43] Speaker 01:
We don't know that.

[00:10:45] Speaker 01:
Let's say we had gone to all the counties.

[00:10:49] Speaker 01:
Now, voter files, you know, are fluid.

[00:10:51] Speaker 01:
All right, so we get them from all the counties.

[00:10:53] Speaker 01:
Now, each clerk has a discretion

[00:10:56] Speaker 01:
to say no.

[00:10:57] Speaker 01:
And of course, we don't comply with the Hawaii statutes because we don't fit either purpose.

[00:11:02] Speaker 01:
But assume we got them all.

[00:11:03] Speaker 01:
We wouldn't know whether we had a statewide voter file until we compared it to the statewide voter file.

[00:11:09] Speaker 01:
We don't know if the four parts equal the whole, and we wouldn't know that until we see the whole.

[00:11:15] Speaker 01:
But the whole is what we asked for.

[00:11:18] Speaker 01:
Had we asked for, and I agree, had we asked for each county's portion, we should have gone to the counties.

[00:11:25] Speaker 01:
But we didn't ask for that.

[00:11:27] Speaker 01:
We asked for the whole.

[00:11:28] Speaker 01:
The whole is what we're entitled under the NVRA to see.

[00:11:31] Speaker 02:
I want to ask you then about the interpretation of the NVRA.

[00:11:36] Speaker 02:
Because what you want, and it's pretty clear what you want, you want a statewide voter file.

[00:11:41] Speaker 01:
Yes.

[00:11:43] Speaker 02:
And the statewide voter file includes all kinds of information.

[00:11:47] Speaker 01:
That's correct.

[00:11:47] Speaker 02:
And you want all of that information.

[00:11:51] Speaker 01:
Well, we don't want social security numbers.

[00:11:53] Speaker 02:
You don't want social security numbers.

[00:11:54] Speaker 02:
But you want the birth date and the party registration and all the other things that are contained, right?

[00:12:00] Speaker 01:
That's correct.

[00:12:01] Speaker 02:
So now we have, Hawaii has this.

[00:12:06] Speaker 02:
But my question then under the statute is it talks about that you can get this information which relates to the implementation of a program

[00:12:17] Speaker 02:
And then it talks about under 8 little i, 1 of the NVRA.

[00:12:23] Speaker 02:
So the question I have is how is the statewide voter file, which kind of stands over here, how does that relate to the implementation of one of the programs to make sure that things are being done properly?

[00:12:39] Speaker 01:
It's correct.

[00:12:40] Speaker 01:
So that's the foundation versus Bellows in the First Circuit.

[00:12:44] Speaker 01:
Your sister court in the First Circuit said in every other case, we provided a list.

[00:12:49] Speaker 01:
There's probably half a dozen, seven, maybe more cases that have concerted what the specific issue of whether the statewide voter file is defined under the NVRA.

[00:13:03] Speaker 01:
And they all said yes.

[00:13:05] Speaker 01:
And it's, when you look at the purpose of the NVRA, one of the four purposes is to ensure that accurate and current voter registration roles are maintained.

[00:13:15] Speaker 01:
So it is, all of the courts who have ever considered that question have held that the statewide voter file is an NVRA covered document.

[00:13:25] Speaker 02:
So if it were determined that

[00:13:30] Speaker 02:
the statute is interpreted such that the implementation of various programs to ensure accuracy is not the same as having the file itself.

[00:13:41] Speaker 02:
Then you could go to the counties and hope for a composite file.

[00:13:48] Speaker 02:
Are there any other avenues that you could take?

[00:13:50] Speaker 01:
Well, our organization obtains statewide voter files.

[00:13:56] Speaker 01:
We look at them.

[00:13:57] Speaker 01:
We identify.

[00:13:58] Speaker 01:
Everyone has mistakes.

[00:13:59] Speaker 01:
Some have lost more than others.

[00:14:02] Speaker 02:
My specific question is, if it were determined that this statute has some constraints in terms of what's covered, because it talks about implementation of programs, not about maintenance of files.

[00:14:17] Speaker 02:
If that were determined, are there other avenues you could take under federal or state law to obtain a statewide voter registration list?

[00:14:27] Speaker 01:
No.

[00:14:29] Speaker 01:
We pursued our action under the federal.

[00:14:31] Speaker 01:
This is a situation Congress decided for us.

[00:14:35] Speaker 01:
And Congress made it a clear strict liability statute.

[00:14:39] Speaker 01:
This case is really about the right to know versus the need to know.

[00:14:43] Speaker 01:
And what I'd urge the court not to do, and that's why I said this decision has an impact on all government information statutes.

[00:14:52] Speaker 01:
Because those statutes that are written in a manner that give the public the right to know,

[00:14:58] Speaker 01:
You know, there isn't, I urge this court not to make a public policy change into some kind of need to know.

[00:15:06] Speaker 01:
And the preemption issue with regard to me, familiar Votah, which this court decided to maintain that decision and not hear it en banc again, is very specific.

[00:15:17] Speaker 01:
Any impediment of a state in relation to the NVRA is preempted.

[00:15:24] Speaker 01:
The delegation to counties, does the county clerks have discretion?

[00:15:29] Speaker 01:
One county might give us something, another county might say no.

[00:15:33] Speaker 01:
Who knows what we'd get at the end of the day.

[00:15:35] Speaker 04:
Sorry, you're over your time, and I want to ask another question about standing.

[00:15:38] Speaker 04:
So your standing theory is that this informational injury that you're just talking about, this public right to information, was denied.

[00:15:47] Speaker 04:
Does it matter that you're an organization instead of a single person?

[00:15:50] Speaker 04:
Do you need to meet the Havens test on top

[00:15:54] Speaker 04:
of just this injury from information because you're an organization?

[00:15:58] Speaker 01:
No, we do not.

[00:16:00] Speaker 01:
We think the words of public citizen are definitive.

[00:16:06] Speaker 01:
Why you need it, who you are, what you're going to do with it is not relevant for the government to ask.

[00:16:12] Speaker 01:
careful lawyers as we are.

[00:16:13] Speaker 01:
We pled it in paragraph three of our complaint and identify downstream consequences in paragraphs 55 to 63 of our complaint.

[00:16:22] Speaker 01:
Careful, but we don't believe it's necessary.

[00:16:26] Speaker 02:
And obviously in a lot of these cases we have individual members of an organization and that forms a foundation for standing.

[00:16:35] Speaker 01:
That's true.

[00:16:36] Speaker 01:
So you are

[00:16:38] Speaker 02:
You're not suing on behalf of individuals, but only the organization.

[00:16:44] Speaker 01:
We are a legal person.

[00:16:45] Speaker 02:
Right.

[00:16:45] Speaker 02:
I understand that.

[00:16:49] Speaker 02:
And you're basically saying that this affects the course of your doing business as an organization.

[00:16:55] Speaker 01:
That's correct.

[00:16:56] Speaker 01:
We are a legal person.

[00:16:58] Speaker 01:
We asked for the documents.

[00:16:59] Speaker 01:
We were aggrieved.

[00:17:00] Speaker 01:
We sued.

[00:17:04] Speaker 01:
I will reserve whatever time I have.

[00:17:06] Speaker 04:
We'll give you some time for rebuttal.

[00:17:08] Speaker 04:
Let's plan on three minutes for rebuttal, but let's hear from the other side.

[00:17:11] Speaker 01:
Thank you, Judge.

[00:17:22] Speaker 03:
Good morning, Your Honors.

[00:17:24] Speaker 03:
Aaron Shuliner on behalf of defendant appellee Scott Nago.

[00:17:27] Speaker 04:
It's a little hard to hear you.

[00:17:28] Speaker 04:
Can you move the microphone closer?

[00:17:31] Speaker 03:
A little better.

[00:17:33] Speaker 00:
We'll see.

[00:17:35] Speaker 03:
Okay.

[00:17:37] Speaker 03:
This case results from Plaintiff Appellant's apparent rush to get to the familiar ground of the debate which has occurred in other circuits which they've mentioned over how to interpret 52 USC 20507I relating to what are records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters.

[00:18:00] Speaker 03:
that this program is in use.

[00:18:01] Speaker 03:
This bill for the foundation apparently sees the voter registration list itself being covered by 52 USC section 2, 0, 5, 0, 7.

[00:18:09] Speaker 03:
In contrast has been debated in other circuits.

[00:18:12] Speaker 03:
Election administrators typically argue that this these programs and activities in 52 USC 2, 0, 5, 0,

[00:18:27] Speaker 03:
general program that makes a reasonable effort to remove those due to death or a change of residence in accordance with the explicit language of 52 USC section 20507C through E that provides a permissible program that relies on change of address information supplied by the United States postal system involving a subsequent mailing of a notice by forward mail to the voter in the passage of two election cycles in which there is no contact of voting by the voter.

[00:18:55] Speaker 03:
So basically,

[00:18:58] Speaker 03:
argument is the program activities are the USPS change of address and death from like your local Department of Health.

[00:19:07] Speaker 03:
Those are the programs and activities in the rush.

[00:19:11] Speaker 04:
Okay, just to put us where you orient us here.

[00:19:14] Speaker 04:
You're talking about the merits.

[00:19:15] Speaker 04:
You skipped over standing and rightness and everything.

[00:19:17] Speaker 04:
You're talking about the merits now, right?

[00:19:18] Speaker 03:
Yes, but I'll quickly get to the standing part.

[00:19:20] Speaker 03:
But

[00:19:21] Speaker 04:
And on the merits, it sounds like you're saying that they only get information about the programs.

[00:19:27] Speaker 04:
And I'm wondering if that's your argument why you don't learn information about the programs by finding out the results, which would be the list.

[00:19:35] Speaker 04:
Like, why doesn't it relate to the programs to find out the result of them, which is the actual voter list?

[00:19:43] Speaker 03:
No, I guess we only see it as the specific language of the subsection relates to the records related to the program

[00:19:51] Speaker 03:
The programs are the USPS one that I just mentioned and also death information.

[00:19:55] Speaker 03:
That's the program to expand it to basically anything

[00:20:02] Speaker 03:
that touches it in some kind of way is just too broad.

[00:20:05] Speaker 03:
I mean, the NVRA went through the detail of listing the specific program that complied, which was the USPS program, and death, and it specifically says change of address, or death, or words to that effect, to then say because of this general language of all records relating to program activities, that it basically opens it up to anything tangentially related

[00:20:27] Speaker 03:
kind of does a disservice to the NBRA getting specific as to the specific programs and activities as I just, you know, went through.

[00:20:36] Speaker 03:
So that's how we look at it.

[00:20:39] Speaker 02:
How do you get a list, a voter registration list covering the state of Hawaii?

[00:20:46] Speaker 03:
We see it as you go to the four registrar jurisdictions, which are the four counties, and you get the list from those registered jurisdictions because I want to make a point that

[00:20:58] Speaker 03:
there seems to be this assumption that the N.V.R.A.

[00:21:01] Speaker 03:
almost speaks of a state jurisdiction and the N.V.R.A.

[00:21:05] Speaker 03:
approximately 20 times refers to registrars or registrars jurisdictions and it's basically the counties or municipalities.

[00:21:15] Speaker 02:
Are they the registration agencies?

[00:21:17] Speaker 03:
Yes.

[00:21:18] Speaker 03:
The most states don't, or I can't speak for other states, but the way the NVRA recognized that registration was traditionally done by registrar jurisdictions, counties.

[00:21:30] Speaker 03:
And so the NVRA doesn't say categorically there's a statewide voter registration list.

[00:21:35] Speaker 03:
I believe there is a belief that when we get to the Help America Vote Act,

[00:21:39] Speaker 03:
where they said, hey, there should be a state mechanism to help maintain all these disparate lists.

[00:21:46] Speaker 04:
The language of AI1 says, each state shall maintain for at least two years and shall make available for public inspection.

[00:21:54] Speaker 04:
That sounds like a state.

[00:21:55] Speaker 03:
Well, that gets into our position, which is that the legislative history for the NVRA recognizes that

[00:22:06] Speaker 03:
various duties and responsibilities under the NVRA could be addressed by a local official.

[00:22:12] Speaker 03:
And in this case, I would be the county clerk.

[00:22:15] Speaker 03:
And also, our understanding in reading the NVRA is it makes reference to a chief state election official that is responsible for coordinating.

[00:22:25] Speaker 03:
It doesn't say all of a sudden they're in charge of the whole list.

[00:22:28] Speaker 03:
And if anything, yet again, if we look at the NVRA and forget about the Help America Vote Act, which made limited changes,

[00:22:34] Speaker 03:
It recognizes registrar jurisdictions.

[00:22:37] Speaker 03:
Registrars are in charge of registering people, removing people, and so forth.

[00:22:42] Speaker 03:
They are the core of the NVRA.

[00:22:45] Speaker 03:
The chief election official, as it says, just makes a reference to coordinates.

[00:22:49] Speaker 03:
It's like a facilitator.

[00:22:50] Speaker 03:
And that's what happened in this case.

[00:22:52] Speaker 03:
The chief election officer said, go to the county clerk.

[00:22:56] Speaker 03:
He performed his role, and the county clerks are in charge of their respective registrar jurisdictions and can speak to the records related to their programs and activities.

[00:23:06] Speaker 03:
You can't just change the NBA into something totally different because of the Help America Vote Act having a statewide list.

[00:23:12] Speaker 04:
I think you're making two merits arguments, right?

[00:23:14] Speaker 04:
One is it's fine for us to not do this at the state level and send them to the county.

[00:23:20] Speaker 04:
And another is even if they asked the county, they wouldn't have to get the whole list.

[00:23:25] Speaker 03:
I think as to.

[00:23:27] Speaker 03:
That what would happen would be they can make a request each of the 4 counties and if they're trying to find everything that existed on a specific day they could perhaps say I want everything of as of today's date in each of the 4 registered jurisdictions and you know try to get them to cooperate and each provide a list dated January 1st.

[00:23:50] Speaker 03:
You know at 10AM and that would accomplish what they want apparently which is

[00:23:55] Speaker 03:
all four counties providing their list at the same time to create functionally a statewide list.

[00:24:01] Speaker 04:
Is your argument that the county wouldn't have to even give them that because they only need information about the Post Service and the death and not about the list itself?

[00:24:09] Speaker 03:
Well as to that, I guess the distinction is this, the NVRA arguably no.

[00:24:16] Speaker 03:
But we say that's a non-issue because under state law, HRS 1197, anyone with an election of government purpose can request

[00:24:25] Speaker 03:
The list.

[00:24:26] Speaker 02:
Okay, so does the state acknowledge that this organization has an election or a government purpose?

[00:24:35] Speaker 03:
Well, as we noted at the U.S.

[00:24:37] Speaker 03:
district court level, we cannot speak for the counties, but the fact of the matter.

[00:24:42] Speaker 02:
In a way, because it all funnels up to the state.

[00:24:46] Speaker 02:
So what's your answer to my question?

[00:24:48] Speaker 03:
The answer we gave at the lower court end that I'll give here is that they're arguing that

[00:24:55] Speaker 03:
They need the list for purposes of ensuring compliance or monitoring of a federal election law.

[00:25:02] Speaker 03:
And at the U.S.

[00:25:03] Speaker 03:
District Court level, we said.

[00:25:05] Speaker 03:
that appears to be an election purpose.

[00:25:07] Speaker 03:
Of course, they need to put in writing on the form.

[00:25:10] Speaker 03:
This is their election purpose, kind of like how I just said, to ensure compliance with the NVRA.

[00:25:14] Speaker 03:
The county clerks may have follow-up questions, perhaps, to look into the veracity of this statement that is really being used for an election purpose, not going to be used for commercial purposes, and so forth.

[00:25:24] Speaker 03:
But on its face, we give it to candidates in campaigns that want to knock on doors and solicit votes.

[00:25:32] Speaker 03:
There's nothing, as I stand here, which would cause an organization like them, if they're likewise going to use it for the election purpose of ensuring the compliance with the NVRA and so forth, who are we to say otherwise?

[00:25:44] Speaker 04:
I guess I'm confused about your answer to my question earlier.

[00:25:47] Speaker 04:
So I'm trying to figure out, we have all the standing and rightness issues we could talk about, but if we get to the merits,

[00:25:53] Speaker 04:
Are you asking us just to say you're the state and the state can delegate and so they lose on the merits period or are there other things you think we need to say?

[00:26:02] Speaker 04:
I'm kind of confused about why you started with this whole post office business because that doesn't seem related to delegation.

[00:26:08] Speaker 03:
I went there and I apologize just to basically say that

[00:26:15] Speaker 03:
The foundation apparently in other jurisdictions has certain arguments that they're ready primed to go for.

[00:26:21] Speaker 03:
And instead of doing the administrative requirement of submitting an application to the four county clerks, they just wanted to bypass that and say, you're the office of elections, give us a list

[00:26:32] Speaker 03:
We don't need to go to the county courts, you know, and they just wanted to play.

[00:26:35] Speaker 04:
So do you want us to just say, no, it's fine, they can delegate, so then if we get to the merits, that you can delegate, so that means you win, period.

[00:26:42] Speaker 04:
Or do we have to say something about whether the list is even obtainable under this statute?

[00:26:48] Speaker 03:
I think that it's just a matter of the delegation.

[00:26:51] Speaker 03:
It's totally permissible.

[00:26:52] Speaker 03:
It's consistent with the NVRA.

[00:26:54] Speaker 03:
If the court wants to get to the fundamental question that other circuits have addressed,

[00:26:59] Speaker 03:
That's fine, too, and we've put in our position on that, but we understand the court may just say, wait, you know, you don't have rightness.

[00:27:07] Speaker 03:
It should have been referred to the county clerks.

[00:27:11] Speaker 02:
So if it were to be remanded or suspended so that the organization could go to the county clerks, my understanding is the state's position, which is contrary

[00:27:25] Speaker 02:
I think to what Mr. Nixon had laid out, is that this organization's purpose would be sufficient to fall under the election segment of the Hawaii statute.

[00:27:38] Speaker 03:
And this is where I understand the hemming and hawing on my part.

[00:27:44] Speaker 03:
The way our laws are set up, we recognize

[00:27:48] Speaker 03:
the ability of the counties to basically receive the application, make their determination, and I used a caveat of saying from what I know from what they're saying, it appears to be an election purpose, but I really cannot speak on behalf of the county clerks, and obviously the county clerks- So we can be in this situation, we've got four counties at issue here, and they go back and they ask four counties, and two of them say, hey, this organization, it's not for government purpose, okay, that seems clear, and it's not for an election purpose, because

[00:28:18] Speaker 02:
They are not a party or something else that might fall under the election.

[00:28:24] Speaker 02:
Therefore, you get it from two counties and you don't get them from the other two.

[00:28:28] Speaker 02:
As to that, I just want... Then what happens?

[00:28:32] Speaker 00:
Is there an administrative review process for a denial from a county?

[00:28:36] Speaker 03:
No, there isn't.

[00:28:37] Speaker 03:
And I was going to say quickly that 3-177-160 gives a non-exhaustive list

[00:28:44] Speaker 03:
of election purposes.

[00:28:45] Speaker 03:
And that's why they typically refer to candidates, campaigns.

[00:28:48] Speaker 03:
But it doesn't mean that a public interest organization wanting to ensure compliance with an election law wouldn't qualify as an election purpose.

[00:28:57] Speaker 03:
And as I stand here, I don't see why it wouldn't be an election purpose.

[00:29:00] Speaker 03:
But the county clerks may have a different take on it.

[00:29:03] Speaker 03:
They may have follow-up questions to satisfy themselves that what they're proposing is an election purpose.

[00:29:10] Speaker 03:
It's not a campaign purpose.

[00:29:12] Speaker 02:
It's referring to an election law.

[00:29:14] Speaker 02:
Is there a single centralized voter registration list for the state of Hawaii that is maintained by the state?

[00:29:23] Speaker 03:
I'll say it this way that there's a statewide voter registration system and it's set up to issue specific lists for each of the four counties.

[00:29:34] Speaker 03:
As I stand here, I don't know if you can press a button and generate a list that has

[00:29:40] Speaker 03:
Everyone in the state, if you were to press a button, it would probably say, here are the four counties, all as of this date, 10 AM, and that's functionally the statewide voter registration list.

[00:29:52] Speaker 02:
I mean, you are the state.

[00:29:53] Speaker 02:
You're representing the state.

[00:29:54] Speaker 02:
So I'm just trying to understand, under Title 52, there has to be a single centralized voter registration list.

[00:30:06] Speaker 03:
I would like to look at that today.

[00:30:24] Speaker 02:
I wouldn't need to go to the four counties because I would go to the single centralized voter registration list, right?

[00:30:31] Speaker 03:
And that would be a question as to whether or not that provision of the Help America Vote Act, if that fundamentally amended the NVRA because they're coming here under the NVRA and as I stated earlier, it's about registrar jurisdictions, programs and activities and so forth.

[00:30:46] Speaker 03:
The NVRA is about counties.

[00:30:49] Speaker 03:
The Help America Vote Act does not have a similar public disclosure provision or what have you, obviously.

[00:30:54] Speaker 02:
I understand that.

[00:30:55] Speaker 02:
So let's just leave the NVRA aside and go to the Help America Vote Act.

[00:31:02] Speaker 02:
If there is such a list and someone asks for it under the Help America Vote Act and not under the NVRA, the state's response is what?

[00:31:15] Speaker 03:
Under that, we would probably ask for them to cite some specific provision of the Help America Vote Act, which entitles them to that record.

[00:31:22] Speaker 03:
If they did not, we would probably treat that under our state open records law.

[00:31:27] Speaker 02:
I was going to say, why wouldn't that be under an open records law with certain redactions for private information?

[00:31:37] Speaker 03:
and we would go through that process and we would then say consistent with because under the state open records laws.

[00:31:47] Speaker 03:
There can be provisions in which you would frustrate a legitimate government function to turn over records and we would probably point out that under state law.

[00:31:55] Speaker 03:
There's a recognition of the county clerks being in charge of voter registration and so forth.

[00:32:01] Speaker 03:
And we would probably say that it would be more appropriate

[00:32:03] Speaker 03:
to go to the county clerks, because we would otherwise be undermining the structure of our state laws that put the county clerks in charge of voter registration by allowing someone to just bypass all of our state laws to just come to us.

[00:32:17] Speaker 03:
So what... Go ahead.

[00:32:19] Speaker 02:
You know, if you're somebody asking for this, you kind of feel like you're on the merry-go-round, because you went to the state, and the state said, well, okay, I get under the HAVA that there's a centralized list, and you asked for it.

[00:32:32] Speaker 02:
So you're suggesting that the IT person could basically extract this information because the state has it, correct?

[00:32:43] Speaker 03:
Correct.

[00:32:43] Speaker 03:
As long as there's a legitimate legal reason to extract it, and like we said under our state open records law, we would have a basis to tell people you need to go to the county clerks because we cannot frustrate state law by bypassing

[00:32:58] Speaker 02:
the county clerks and just giving where under the where under the state you know equivalent to the freedom of information the state open records law would it say that somehow this has to be obtained from the clerks where where under the law of the state open records law do you kind of revert to that

[00:33:18] Speaker 03:
So under, I believe, 92, F11 or 13, I apologize, I could get the citation wrong, but there's basically a list of reasons why you don't turn things over, such as privacy concerns, and one of them is the frustrating of a legitimate government function.

[00:33:35] Speaker 03:
And so the position would be that we would be frustrating our state laws regarding registration, which run from HRS 11-11 to about 11-23 and also 11-97, that voter registration is the domain of the county clerks, including registering with removing people and so forth.

[00:33:54] Speaker 03:
And they're in charge of voter registration, the list, that we're undermining it by just

[00:33:59] Speaker 03:
given anyone who asked for it, the list.

[00:34:01] Speaker 03:
We're like a bank and these are safe deposit boxes containing information of the county clerks.

[00:34:06] Speaker 03:
We cannot just grab everyone's safe deposit box and just present it to people.

[00:34:11] Speaker 03:
People need to go to the holder of those boxes.

[00:34:14] Speaker 03:
Sorry for the horrible analogy.

[00:34:15] Speaker 03:
The county clerks and the county clerks consistent with state law

[00:34:19] Speaker 03:
could turn over the information or respond appropriately to the request and so forth.

[00:34:24] Speaker 03:
We can't undermine that or frustrate it by just bypassing them essentially.

[00:34:29] Speaker 04:
Is it the state's position though that if the requests were made to the county with an appropriate purpose that the whole voter registration list should be given by the county?

[00:34:40] Speaker 03:
Yes, and to be clear about that.

[00:34:43] Speaker 04:
What was your whole first part of the argument then about the post office?

[00:34:46] Speaker 04:
I'm really confused.

[00:34:47] Speaker 04:
It sounds like you are saying now that this does let you get a whole list.

[00:34:52] Speaker 03:
Under HRS 1197 and the four county clerks, you could go to each of the four county clerks, present a legitimate election purpose,

[00:35:02] Speaker 03:
and get a copy of what the statute and the administrative rule indicate would be provided for an election purpose list.

[00:35:09] Speaker 03:
It would include the social security numbers or dates of birth, but what's provided to candidates and campaigns.

[00:35:15] Speaker 04:
Likewise, anyone else with an election purpose would get from... So it would give you the voters and their party affiliation and whatever else about when they voted.

[00:35:23] Speaker 04:
I'm not sure what's in the list.

[00:35:24] Speaker 03:
In our state, we don't have political party affiliation, but name, address, those types of things.

[00:35:29] Speaker 02:
So you would, when you're talking about the post office in depth, you're basically saying those are programs that the state has to try to make sure voter lists are accurate?

[00:35:38] Speaker 03:
Yeah, so I was trying to get to that.

[00:35:40] Speaker 03:
If they were to say, we don't care about 1197, we're just here about the NVRA, we're looking at 20507I,

[00:35:47] Speaker 03:
We have these cases that indicate very broad interpretation of all records related to the program's activities.

[00:35:53] Speaker 03:
That's everything including the voter registration affidavits.

[00:35:56] Speaker 03:
We would say, no, respectfully, we do not interpret the NVRA in that manner.

[00:36:01] Speaker 03:
The programs and activities would relate to change of address, which is related to the USPS.

[00:36:08] Speaker 03:
what I just talked about, and removal due to death, which would be information from the Department of Health.

[00:36:13] Speaker 03:
Those are the only records related to program activities.

[00:36:15] Speaker 00:
You're just lucky that there's... Your view is their entitlement to the list that they want comes from state law, not federal law?

[00:36:27] Speaker 03:
Correct.

[00:36:31] Speaker 04:
Do you want to talk... So we're over time, but

[00:36:33] Speaker 04:
The standing and rightness issues in this case are difficult.

[00:36:36] Speaker 04:
So I think I'd like to ask you some questions about that.

[00:36:39] Speaker 04:
And then we'll give you extra time, because we're going over with him.

[00:36:44] Speaker 04:
What is your position about whether the organization has standing?

[00:36:50] Speaker 04:
Let's just start with that.

[00:36:52] Speaker 03:
Consistent with our briefing, we don't believe they have standing.

[00:36:55] Speaker 03:
It's not like Havens where they have a specific component of their organization that provides direct services to people in Hawaii or anything like that.

[00:37:05] Speaker 03:
They're a public interest organization who have certain beliefs about the NB area and monitoring it.

[00:37:09] Speaker 03:
There's nothing unique here that would give them standing.

[00:37:13] Speaker 04:
And so your opponent's argument was that this is an informational injury, and the informational injury itself

[00:37:20] Speaker 04:
counts for standing the Supreme Court has recognized that and they don't need to show anything else under havens because this type of injury is enough whether you're a person or an organization.

[00:37:30] Speaker 03:
I mean when I was looking at trans union and while they were

[00:37:36] Speaker 03:
making certain distinctions, they ultimately did believe, at least it was my understanding of it, argued that there still had to be some harm.

[00:37:45] Speaker 03:
Now, like when the Third Circuit kind of approached this, they tried to draw the distinction between a FOIA, like a general

[00:37:53] Speaker 03:
entitlement to records type of law, in which if you don't give the records, you're just undermining the very purpose or nature of the law, while the NVRA, as the Third Circuit noted, was essentially about encouraging voter registration and so forth.

[00:38:07] Speaker 03:
So there'd have to be some connection or evidence that the way in which the state or the counties were responding was somehow impacting what the NVRA intended, and they haven't really shown that.

[00:38:21] Speaker 00:
I do think trans-union

[00:38:23] Speaker 00:
is important here, and from my understanding, TransUnion was distinguishing between different types of injury.

[00:38:31] Speaker 00:
They had the traditionally recognized as concrete injury being physical or monetary harm were their primary examples.

[00:38:40] Speaker 00:
I don't think either physical or monetary harm has been alleged here.

[00:38:43] Speaker 00:
It's correct?

[00:38:44] Speaker 00:
Correct.

[00:38:44] Speaker 00:
And they said that there is intangible harms that are historically and traditionally recognized, like defamation, excuse me, and other constitutional harms, like the violation of the freedom of speech as traditional, historically recognized intangible harms.

[00:39:04] Speaker 00:
And then we have the informational harm that's alleged here, which I believe is the only intangible harm alleged here.

[00:39:14] Speaker 00:
have a position on whether that falls into, I think it's not physical or monetary.

[00:39:21] Speaker 00:
Is it historic or traditional, or is it the type of, I think, third category, which the court said Congress can create, essentially, a harm by statute.

[00:39:32] Speaker 00:
But then if Congress is going to do that, we're going to essentially require some kind of a particularized nexus between

[00:39:43] Speaker 00:
Congressional, statutorily created harm and the purpose of the statute.

[00:39:52] Speaker 00:
Was this the harm that Congress intended to prevent?

[00:39:56] Speaker 00:
Do you follow me?

[00:39:57] Speaker 00:
Are we in the sort of second category where this is a historically and traditionally recognized intangible harm?

[00:40:07] Speaker 00:
Or are we in the third category of a congressionally created intangible harm?

[00:40:12] Speaker 03:
I think I'm wise enough to know that I really can't.

[00:40:17] Speaker 03:
And I apologize.

[00:40:20] Speaker 04:
Do you think they're standing if you're denied a FOIA request?

[00:40:24] Speaker 03:
From my understanding of the case law, yes.

[00:40:27] Speaker 04:
And so what is your distinction here?

[00:40:29] Speaker 04:
Why do you think that doesn't mean they're standing here also?

[00:40:32] Speaker 03:
Because I don't see the provision within the NVRA to have been essentially a FOIA one.

[00:40:39] Speaker 03:
It was basically

[00:40:41] Speaker 03:
you know, as part of the overall NBRA of encouraging voter registration, and then they would have to show some type of logical consequence of not turning over the records, how it impacted... Well, in FOIA, you don't have to show a logical consequence, right?

[00:40:56] Speaker 04:
You just have to show a denial of the request.

[00:40:59] Speaker 03:
But in that context, FOIA is all about open records, and that's the purpose of FOIA.

[00:41:05] Speaker 04:
So I guess my question is, why do you think that this 8i1 is not an open records type law too?

[00:41:12] Speaker 03:
Well, I think the provision that, given that it's within 52 USC 20507, which is a very long, expansive one about the administration of voter registration, has to be seen within that context.

[00:41:27] Speaker 03:
And within that context, it's about the registering, the expansion of the voter registration universe, essentially.

[00:41:35] Speaker 03:
So I think it's because of the location of it within 20507

[00:41:40] Speaker 03:
a very expansive statute that goes on for pages essentially that talks about photo removal programs and so forth that I just don't see it in isolation.

[00:41:49] Speaker 04:
So if FOIA was exactly the same but it was in the US code kind of with some other things it would change the answer on FOIA?

[00:41:56] Speaker 03:
I think that if, maybe I missed that there.

[00:42:01] Speaker 04:
It seems like you're saying because this provision that talks about the government has to make available these records

[00:42:07] Speaker 04:
Because it's with some other stuff.

[00:42:08] Speaker 04:
I mean, I know this is what the Third Circuit says, but I have a lot of trouble understanding it.

[00:42:12] Speaker 04:
Because it's written with other things around it, it changes what it means somehow, and whether it's actually about public records.

[00:42:19] Speaker 04:
And I just have trouble understanding why that should matter, whether if you label things all under a big Roman numeral or not or something, whether it affects what the provision in question says.

[00:42:30] Speaker 03:
I believe it's I mean I think it is relevant because it provides context and the context is a multi-page statute which relates to the administration of voter registration so that is the context.

[00:42:42] Speaker 02:
That's the merits really I mean it seems to me that if what they're saying is here's a statute we think as an organization we have a right to get this information so they and our organization is centered around

[00:42:59] Speaker 02:
you know, election integrity.

[00:43:01] Speaker 02:
And here's the statute we cite for the basis to get the information.

[00:43:06] Speaker 02:
You could say, the court could say, well, I disagree.

[00:43:10] Speaker 02:
Maybe we don't see the statute the same way.

[00:43:13] Speaker 02:
But that wouldn't undercut standing, would it?

[00:43:16] Speaker 02:
I mean, because otherwise, you're emerging the standing and the merits.

[00:43:18] Speaker 02:
And I recognize sometimes that happens.

[00:43:20] Speaker 02:
But this would seem to really cabin the meaning of the statute

[00:43:29] Speaker 02:
and, in effect, deny standing because you disagree with how they view the statute, wouldn't it?

[00:43:36] Speaker 02:
I mean, and I apologize if I'm not quite... Well, I think this probably... Why don't let him answer the question and then we'll just, you know, why don't you kind of tease it out for us?

[00:43:45] Speaker 02:
How does the fact that they want it under this statute, you just have a disagreement as to whether that statute is the right one?

[00:43:52] Speaker 03:
I think there's a question from my reading of things as to whether or not Congress on its own can unilaterally create standing in a statute, and that the courts have to consider how Congress went about it.

[00:44:07] Speaker 03:
And in the FOIA context, it's like, OK, Congress created a law which talks about the importance of open records and all that kind of stuff.

[00:44:14] Speaker 03:
And if you don't turn over records consistent with it, that is harm because you're not effectuating the purpose of this statute, FOIA,

[00:44:22] Speaker 03:
And so that meets Article 3 standing.

[00:44:25] Speaker 03:
While in this context, just because Congress throws in a subsection of a larger statute, something that talks about disclosure, we still have to look at what did Congress create.

[00:44:37] Speaker 03:
Congress created this law regarding voter registration, what's the purpose of voter registration, to encourage it and so forth.

[00:44:43] Speaker 03:
Then I think the attitude is that the courts look to whether or not this small provision, which relates to the disclosure of certain records, whether or not there's really harm as to what Congress was trying to accomplish for the overall statute.

[00:44:56] Speaker 03:
I mean, that's kind of my take on it.

[00:44:59] Speaker 00:
I think that you've somewhat touched on what I was trying to get at in TransUnion.

[00:45:03] Speaker 00:
I think there is arguably a distinction between informational injuries from

[00:45:12] Speaker 00:
denial of information for statutes like FOIA where the entire purpose of the statute is to create a right to information.

[00:45:22] Speaker 00:
And I believe the court has drawn its distinction between disclosure provisions in service of some other purpose other than the right to information in and by itself and where they've said there's a disclosure requirement in the context of a statute to serve some other legislative purpose.

[00:45:41] Speaker 00:
which is not information for the sake of access to information.

[00:45:45] Speaker 00:
But instead, I think your argument is this is a disclosure provision in the service of ensuring essentially accuracy of the effectiveness of voter registration programs and so forth, that then there has to be some kind of the informational injury in and by itself may not be enough for Article III.

[00:46:10] Speaker 04:
If that's your theory, can I ask you, isn't FOIA about making sure the government is functioning properly?

[00:46:17] Speaker 04:
I guess I'm not understanding why this, even if this is about getting information about voting to make sure that the voting processes are right, why FOIA isn't just a bigger effort to make sure that the government information is available so people can make sure the government is doing what it's supposed to do.

[00:46:33] Speaker 03:
I mean, in terms of FOIA, since I don't have it in front of me, and while I can understand the court's

[00:46:39] Speaker 03:
conclusion as to what FOIA accomplishes others would just look at FOIA is just a starting point to disclose records the interpretation of what those records reflect as to the proper functioning government and so forth is a separate matter but that FOIA just opens up access to records and the analysis like the court just mentioned is a separate matter that I don't I can't speak as to Congress's findings as to why they created

[00:47:05] Speaker 03:
for you and so forth, but I believe it was just primarily to open up the records first initially and then the rest is just matter of interpretation of what you learned from those records.

[00:47:13] Speaker 02:
And that's what the Hawaii statute is basically the cousin or the related as all these states disclosure statutes, correct?

[00:47:24] Speaker 03:
Yeah, I mean, generally speaking, without yet again being an expert on the state open records laws, one tries to open up the records of how government works.

[00:47:34] Speaker 03:
But with those notable exceptions I mentioned earlier, where it factors in frustration of legitimate government functions and so forth.

[00:47:42] Speaker 04:
OK.

[00:47:42] Speaker 04:
We've taken you way over your time.

[00:47:44] Speaker 04:
So I think we need to give time to the other side.

[00:47:47] Speaker 04:
Let's start with five minutes on the clock for rebuttal.

[00:47:50] Speaker 04:
But if we need to go over, we will.

[00:47:52] Speaker 03:
Thank you.

[00:47:53] Speaker 04:
Thank you.

[00:48:02] Speaker 01:
They please the court.

[00:48:03] Speaker 01:
Your question to me earlier, why can't we just go to the counties was answered by counsel when he answered your question with I can't speak for the counties.

[00:48:14] Speaker 01:
I'm not sure.

[00:48:14] Speaker 01:
I'm not sure.

[00:48:14] Speaker 01:
Remember how I only has for the California has 58 New York has 62 Texas has 254 counties.

[00:48:22] Speaker 01:
If every state delegated.

[00:48:25] Speaker 01:
The statewide voter obtaining the statewide

[00:48:34] Speaker 01:
Hawaii may not rewrite the NVRA by imposing Hawaii's own specific request or its own rules with regard to the NVRA.

[00:48:51] Speaker 01:
Congress made this decision for you, made it very clear.

[00:48:55] Speaker 01:
You may obtain documents in relation to the statewide voter roll, including the culmination of all those list maintenance involving the statewide voter roll.

[00:49:07] Speaker 01:
Congress created this Freedom of Information Act.

[00:49:10] Speaker 01:
States may not rewrite it.

[00:49:12] Speaker 01:
Mi familia vota, which counsel didn't address.

[00:49:17] Speaker 01:
But that is very specific.

[00:49:20] Speaker 01:
Arizona can't rewrite the NVRA.

[00:49:23] Speaker 04:
for Arizona's... The law there had to do with the actual voting though and this is a step removed, right?

[00:49:28] Speaker 04:
We're time and information here so I'm not sure you can use that case to say that nothing ever can be done by states in the realm of the NVRA.

[00:49:39] Speaker 01:
The reason why is because there were four points.

[00:49:42] Speaker 01:
Now the NVRA had to do with, the Be Familiar voter had to do with registration and making voting easier.

[00:49:49] Speaker 01:
But there's four aspects to the NVRA.

[00:49:52] Speaker 01:
The last two are protect the integrity of the electoral process.

[00:49:56] Speaker 01:
And the fourth is to ensure accurate and current voter registration roles are maintained.

[00:50:03] Speaker 01:
That is of equal dignity.

[00:50:06] Speaker 04:
So I think in Mi Familia, the alleged violation by the state went directly to

[00:50:14] Speaker 01:
Registration.

[00:50:15] Speaker 04:
What is protected?

[00:50:16] Speaker 04:
Whereas you are trying to get information to make sure it's protected.

[00:50:19] Speaker 04:
It is one step removed.

[00:50:20] Speaker 01:
No, I don't think it is.

[00:50:22] Speaker 01:
I would disagree with you on that.

[00:50:24] Speaker 01:
And it is specific because Section 8i of the NVRA says each state is required to maintain these documents for two years.

[00:50:35] Speaker 01:
Any person may ask for it and then provides a private right of action without qualification.

[00:50:42] Speaker 02:
Well, that depends on what the documents are.

[00:50:45] Speaker 02:
So what, in your view, is the relationship between the NVRA and the H-Hava?

[00:50:54] Speaker 01:
Hava.

[00:50:55] Speaker 01:
Help America Vote Act.

[00:50:56] Speaker 01:
Help America Vote Act.

[00:50:57] Speaker 01:
Yes.

[00:50:58] Speaker 01:
Hava was passed after the NVRA.

[00:51:01] Speaker 01:
So Congress knew that the NVRA already existed.

[00:51:03] Speaker 01:
And Hava created an obligation for the states to maintain

[00:51:09] Speaker 01:
in a non-discriminatory manner, a single, uniform, official, centralized, interactive, computer, statewide voter registration list.

[00:51:18] Speaker 01:
Defined, maintained, and administered at the state level that contains the name, registration information of every legal registered voter in the state.

[00:51:28] Speaker 01:
That's the list.

[00:51:29] Speaker 01:
That's the list that we asked for.

[00:51:31] Speaker 02:
And so is your, in terms of standing,

[00:51:35] Speaker 02:
You also, I mean, we have kind of sidestepped the whole HAVA situation focusing on the NVRA.

[00:51:42] Speaker 02:
I think the HAVA, I mean, your claim basically is that your organization would be entitled under HAVA to a statewide centralized list, right?

[00:51:55] Speaker 01:
Yes, through the NVRA.

[00:51:56] Speaker 02:
Through the NVRA, but only through the NVRA.

[00:51:58] Speaker 01:
Right, and so that this list exists,

[00:52:02] Speaker 01:
not on a county basis but on a statewide basis is a foregone conclusion.

[00:52:08] Speaker 02:
Let's say that the NVRA is interpreted not as you say but basically talking about what are the programs that the state has to ensure accuracy of the list.

[00:52:25] Speaker 02:
One of those programs is

[00:52:27] Speaker 02:
you know, what we'll call the post office program, another one the death program, and there may be some others.

[00:52:32] Speaker 02:
So if the NVRA right to list is really limited to what are those programs, then what would be your claim as to how you would have standing?

[00:52:50] Speaker 01:
I would urge the court to read Public Interest Legal Fact.

[00:52:54] Speaker 02:
No, no, no.

[00:52:55] Speaker 02:
We've read all the cases, but my question is, if you didn't have the NVRA's interpretation as you would like it,

[00:53:04] Speaker 02:
What would be the basis?

[00:53:06] Speaker 02:
Do you have another basis for obtaining the lists?

[00:53:09] Speaker 01:
The NVRA is very clear that this is.

[00:53:13] Speaker 01:
No, no, no.

[00:53:13] Speaker 01:
You're not hearing my question.

[00:53:14] Speaker 01:
I'm not.

[00:53:15] Speaker 01:
And I'm sorry.

[00:53:15] Speaker 02:
You're not.

[00:53:15] Speaker 02:
And let me just, maybe I'm not clear.

[00:53:18] Speaker 02:
Let's assume your interpretation is not correct and that the NVRA provision on the programs is really limited to the programs that the state has enacted or

[00:53:34] Speaker 02:
adopted to make sure that the lists are accurate.

[00:53:38] Speaker 02:
If that were the case, and so you couldn't really get a claim under 8 little i1, do you have another basis for obtaining the lists?

[00:53:52] Speaker 01:
No, our basis is under the N.V.R.A.

[00:53:55] Speaker 01:
It's under the N.V.R.A.

[00:53:57] Speaker 02:
No, I understand your reasons, and we've kind of gone over your interpretation, so I understand all that.

[00:54:03] Speaker 02:
I was just asking you different questions.

[00:54:05] Speaker 01:
Thank you.

[00:54:05] Speaker 01:
Did I answer your question?

[00:54:06] Speaker 02:
No, no, you did.

[00:54:09] Speaker 02:
You did.

[00:54:09] Speaker 02:
Thank you.

[00:54:09] Speaker 01:
Okay, good.

[00:54:11] Speaker 02:
I think Judge Sung had a different question.

[00:54:14] Speaker 00:
Yeah, I'm not, I mean, I think part of it is I want to go back to TransUnion where the Supreme Court told us that the question of whether there is Article III injury is different from the question of whether Congress created a statutory mandate or prohibition and created a private cause of action to enforce it.

[00:54:38] Speaker 00:
And even where those two things have happened, there needs to be particularized injury

[00:54:43] Speaker 00:
to the plaintiff, so even assuming that Congress created an obligation on the state to create a statewide voter list under HAVA, and even assuming that there is an entitlement to it through the NVRA, I suppose what you're trying to do is enforce the HAVA requirement on the state

[00:55:12] Speaker 00:
Assuming there's a private right of action for that, what is the injury, Article 3, injury that satisfies trans union, particular to your organization?

[00:55:25] Speaker 01:
Yes.

[00:55:26] Speaker 01:
We pled in paragraph 3.

[00:55:28] Speaker 01:
our organizational standing and why this document is important to our organization.

[00:55:33] Speaker 01:
And we particularized our injuries in paragraphs 55 through 63 in our complaint.

[00:55:40] Speaker 01:
So we pled them.

[00:55:41] Speaker 01:
So in a motion to dismiss stage, where we are now, is that the court should take those elements as being true and should look at that.

[00:55:51] Speaker 01:
I'm going to tell you, I don't believe that's necessary.

[00:55:55] Speaker 01:
We pled those because we're careful lawyers.

[00:55:57] Speaker 01:
But we don't believe there's necessary, even under trans-union, because I will tell you.

[00:56:02] Speaker 01:
Trans-union, Justice Kavanaugh wrote, the plaintiffs did not allege they failed to receive any information.

[00:56:09] Speaker 01:
They argued that they received it in the wrong format.

[00:56:12] Speaker 01:
Remember, there were about 2,000 plaintiffs who they said did have downstream damages.

[00:56:16] Speaker 01:
So we're only talking about the three, the 6,000.

[00:56:19] Speaker 01:
Now TransUnion didn't involve a public information statute.

[00:56:24] Speaker 01:
This is a credit file statute, and I don't have the access to ask for anybody else's credit but my own.

[00:56:32] Speaker 01:
And so he said, therefore, they only argued that they received it in the wrong format.

[00:56:37] Speaker 01:
Therefore, Akins and public citizens don't control here because they're not public

[00:56:44] Speaker 01:
Then Justice Kavanaugh goes on to write, in addition, those cases involve the denial of information subject to disclosure or sunshine laws that entitle all members of the public certain information.

[00:56:58] Speaker 01:
This case does not involve such a public disclosure law.

[00:57:02] Speaker 01:
That's trans-union.

[00:57:04] Speaker 01:
It didn't involve a public disclosure law.

[00:57:06] Speaker 01:
The NVRA is a sunshine law.

[00:57:09] Speaker 01:
It is a public disclosure law in the end.

[00:57:14] Speaker 01:
I would urge control here where the court and public citizen, anyone request specific information that has been denied has standing to bring an action.

[00:57:28] Speaker 01:
The request or circumstances don't matter.

[00:57:32] Speaker 00:
And that's where the 3rd Circuit disagreed with you, right?

[00:57:35] Speaker 01:
The Third Circuit did.

[00:57:36] Speaker 01:
And so did the Fifth.

[00:57:37] Speaker 01:
OK, so you didn't ask us about the Fifth.

[00:57:39] Speaker 01:
The Fifth was a case involving, and the Third Circuit followed the Fifth.

[00:57:45] Speaker 01:
So the Fifth Circuit, with Campaign Legal Center, the ACLU, the Mexican-American Legal Defense, MALDEF, and a few others, were asking for Texas voter rolls to see if people were being taken off the voter rolls improperly.

[00:58:04] Speaker 01:
The Fifth Circuit followed the dissent in Akins, not the majority.

[00:58:10] Speaker 01:
And the Fifth Circuit required downstream consequences.

[00:58:13] Speaker 01:
I think it is a misreading of transunion to say that all informational injuries require downstream or organizational injuries.

[00:58:23] Speaker 01:
The problem with the Third and the Fifth is that it affects, and this is why I said this case is so important, because it affects who has standing, if anyone,

[00:58:32] Speaker 01:
Because if every person who asks for public information documents, the state gets to come back and do exactly what Hawaii is doing in this case and ask, why do you need it?

[00:58:45] Speaker 01:
I don't think you do.

[00:58:47] Speaker 01:
And so that's a serious problem.

[00:58:49] Speaker 01:
I think the Fifth Circuit got it wrong.

[00:58:51] Speaker 04:
So I understand the Third Circuit to have done something kind of additional, which I think is what your opposing counsel was focused on, which was

[00:58:58] Speaker 04:
to say this NVRA is not really predominantly an information statute.

[00:59:06] Speaker 04:
It's predominantly about voting and there's just a little bit of information buried within it so we don't call it a sunshine law.

[00:59:12] Speaker 04:
in contrast to FOIA, that's entirely a sunshine law.

[00:59:16] Speaker 04:
So what is your response to that?

[00:59:18] Speaker 01:
NVRA is a sunshine law.

[00:59:20] Speaker 01:
Has to be.

[00:59:21] Speaker 01:
I mean, there is a specific private right of action that says any agree person.

[00:59:26] Speaker 01:
Any person can ask for it.

[00:59:27] Speaker 01:
Any person who doesn't get it gets a private right of action in federal court.

[00:59:31] Speaker 04:
And so your answer is basically that language is true whether it's surrounded by other things or not.

[00:59:37] Speaker 04:
That's correct.

[00:59:38] Speaker 04:
And it makes it like FOIA, whether it's surrounded by other things or not.

[00:59:40] Speaker 04:
That's correct.

[00:59:41] Speaker 04:
And so the Third Circuit in saying that we have to say because it's surrounded by other things, it's not predominantly sunshine, you just think that's wrong.

[00:59:49] Speaker 01:
I do think that's wrong.

[00:59:50] Speaker 01:
I do think the Third and the Fifth Circuit are mistaken.

[00:59:53] Speaker 01:
There are lots of organizations like mine.

[00:59:57] Speaker 01:
that ask for public documents to do sunshine work that that help government that that help disclosure because because this government these records that belong to the people people have a right to have access to them to make sure that they're there is a difference between foyer which says you know all essentially creates this entitlement to

[01:00:21] Speaker 00:
public records generally, and the substantive disclosure provision within the MVRA that you're relying on, which by its own terms says for these particular programs to ensure that there

[01:00:35] Speaker 00:
You can get this information in the context of a broader statutory scheme about Voter registration and ensuring access to the right to vote so it I I think there is a at least a legitimate argument adopted by the third circuit that that disclosure provision wasn't a general

[01:00:56] Speaker 00:
sunshine law, but instead a disclosure provision in service of the larger purpose, or at least in the stated purpose of the provision itself, which was to ensure the efficacy of these particular types of programs.

[01:01:09] Speaker 01:
You can't judge the efficacy of the other programs unless you have the final product.

[01:01:19] Speaker 00:
That is fine, but then that is still not necessarily entitling anyone to the entire statewide voter list.

[01:01:26] Speaker 00:
It seems to me there would have to be some nexus between the state of purpose, which is assuring the efficacy of particular programs, and the information that you're requesting.

[01:01:35] Speaker 01:
I would urge the court to follow your sister court in the First Circuit in Bellows.

[01:01:41] Speaker 01:
They addressed this question specifically.

[01:01:44] Speaker 01:
Maine made the same argument, and they said no.

[01:01:48] Speaker 01:
statewide voter file is subject to public disclosure under the NVRA.

[01:01:53] Speaker 02:
Well, I note that neither party cited a DC Circuit case, which came before TransUnion, but which basically recognized that there's a category of standing, informational standing, which is separate from pure organizational standing.

[01:02:11] Speaker 02:
So as I hear your argument, really, that's what you're saying, is that there is

[01:02:15] Speaker 01:
informational standing here and that's enough and then we get to the merits is that right yes judge mccown you may be the first to have juxtaposed informational and procedural standing in wilderness but so that's exactly right we're on the informational

[01:02:31] Speaker 01:
informational right side and that's why I said this is a right to know statute the NVRA doesn't it doesn't require that you have you show any need to know it is a sunshine law it it gives litigants it gives people a right to the information and it gives it specifically Congress decided this for you and gave us a private right of action

[01:02:56] Speaker 04:
Okay, I think we've taken both sides way over now, so thank you both sides for the helpful arguments.

[01:03:00] Speaker 01:
Thank you.

[01:03:00] Speaker 01:
I would urge the court to reverse the trial court, send it back for consideration consistent with this court's order.

[01:03:07] Speaker 04:
Yes, okay.

[01:03:08] Speaker 04:
We will take a five minute break before we hear the last case.

[01:03:11] Speaker 04:
Thank you both sides for the helpful arguments.

[01:03:13] Speaker 04:
In this case, this case is submitted and we'll take a five minute break and then we'll hear the final case.

[01:03:16] Speaker 01:
Thank you very much.

[01:03:17] Speaker 04:
Thank you.