[00:00:00] Speaker 00: Reference Foundation versus Torres. [00:00:03] Speaker 00: Mr. Marcus, you first. [00:00:10] Speaker 04: Good morning. [00:00:11] Speaker 04: Thank you, Your Honors. [00:00:13] Speaker 04: My name is Lawrence Marcus with the New Mexico Attorney General's Office. [00:00:16] Speaker 04: I'm here on behalf of Secretary Oliver and Attorney General Torres. [00:00:21] Speaker 04: With me at council table is Alex Tucker. [00:00:24] Speaker 04: At the outset, I would like to request three minutes for rebuttal. [00:00:28] Speaker 04: In this appeal, the state of New Mexico asks this honorable court to allow it to protect the privacy of those who register to vote to carry out that right and duty that is so fundamental to our republic. [00:00:41] Speaker 04: New Mexico strikes a good balance between the availability of information and transparency on the one hand and protecting privacy on the other. [00:00:51] Speaker 04: It makes voter data available on the condition that the [00:00:59] Speaker 04: The person seeking the data signs an affidavit that the voter data shall be used only for governmental and election campaign purposes only, and shall not be made available or used for unlawful purposes. [00:01:13] Speaker 00: That is a foundational question. [00:01:14] Speaker 00: Wasn't the data here used for election purposes? [00:01:17] Speaker 04: It was posted on the internet, which once it's posted on the internet, once it's out there, it could be used for whatever purposes. [00:01:26] Speaker 01: But that's not what the statute says. [00:01:28] Speaker 01: I think the statute that you just read is the recipient of the data, and that would be VRF. [00:01:34] Speaker 01: Whether or not they used it for election-related purposes, somebody else may use it downstream for whatever reason that they want. [00:01:41] Speaker 01: That's not regulated under the state law, right? [00:01:44] Speaker 04: The statute uses a passive voice described, that the data shall not be used, not that the recipient shall not use it. [00:01:51] Speaker 01: OK, so even if VRF complies with the statute, they could be penalized if Bob Baccarat uses the data for a non-election-related purpose? [00:02:01] Speaker 04: Because they post it on the internet. [00:02:02] Speaker 04: And once it's out there, it's out there. [00:02:06] Speaker 04: No, you go ahead. [00:02:07] Speaker 03: When you say privacy, it helped me if I knew exactly what you mean by that. [00:02:12] Speaker 03: Because there's certain information about voters that I don't understand, social security numbers and so forth. [00:02:16] Speaker 03: Is that what you're talking about? [00:02:18] Speaker 04: They aren't putting social security numbers online. [00:02:21] Speaker 04: What they are putting online is [00:02:24] Speaker 04: They're putting your name and address, and it's probably the easiest way to find someone's name and address online, in all honesty. [00:02:30] Speaker 04: There are other ways of doing it, I realize that, but that's probably the easiest way to do it. [00:02:34] Speaker 04: And in addition, they're putting your party affiliation and your voting history, not who you voted for, obviously. [00:02:40] Speaker 04: all the time that you voted, whether you voted in the primary in one particular year or the general election, they had that all listed on there. [00:02:46] Speaker 03: And if someone runs for office, they can pay a certain fee and get the list so they can send out their mailers and so forth. [00:02:53] Speaker 03: It contains that very information, right? [00:02:55] Speaker 04: They can get that information for election, for their campaign purposes. [00:03:00] Speaker 04: That's right. [00:03:02] Speaker 01: Is it your understanding that you've provided all of the data that's been requested, the VRF, at this point? [00:03:08] Speaker 04: We have complied with all the requests at this point, Your Honor. [00:03:11] Speaker 01: On access itself, I assume that you would argue that that is not moot, right? [00:03:20] Speaker 01: In terms of? [00:03:22] Speaker 01: Ostensibly, the case began by VRF's argument that you were withholding access to data. [00:03:30] Speaker 01: You provided all of the data. [00:03:32] Speaker 01: The dispute now is whether or not they can publish the data on the internet, correct? [00:03:36] Speaker 04: The data has been published on the internet, Your Honor. [00:03:38] Speaker 01: But the question is whether the statute... The new data that has been provided to them, whether or not they are going to be subject to the condition under state law, right? [00:03:49] Speaker 01: Right, yes. [00:03:51] Speaker 01: So if we decide against you on preemption, that the state statute is preempted under the Voter Registration Act, would you concede at that juncture that there is no [00:04:08] Speaker 01: prohibition, a statutory prohibition, there's nothing to prohibit VRF from publishing that data on the internet. [00:04:16] Speaker 01: If the adjudication is that the state statute is pre-empted in VRA. [00:04:23] Speaker 04: If it has to be, if we have to give them this data? [00:04:27] Speaker 04: Well, you did give them the data. [00:04:29] Speaker 01: So my question is, so you gave them the data. [00:04:32] Speaker 01: So now the only question is whether they could publish it, right? [00:04:34] Speaker 01: Right. [00:04:35] Speaker 01: And so there's two arguments. [00:04:37] Speaker 01: One is preemption. [00:04:39] Speaker 01: Well, there's three arguments. [00:04:40] Speaker 01: The First Amendment, the due process, viewpoint discrimination. [00:04:43] Speaker 01: And now the last one is the one that I want to home in on, preemption under the NVRA. [00:04:50] Speaker 01: If the state statute is preempted under the NVRA, can they publish the data? [00:04:56] Speaker 04: We would argue that we could still prevent them from publishing the data because the NVRA concerns access rather than use. [00:05:07] Speaker 01: Under the state statute? [00:05:09] Speaker 04: Yes. [00:05:10] Speaker 01: And if we decide that the state statute is preempted by the NVRA, we would be rejecting your argument. [00:05:19] Speaker 01: In other words, we would be saying that the NVRA provides an unqualified right to access. [00:05:24] Speaker 01: And that supersedes a state statute that would condition access on conditions that are not present in the NVRA, right? [00:05:34] Speaker 01: I mean, that's the whole agreement. [00:05:36] Speaker 04: Unqualified access, yes. [00:05:37] Speaker 04: That would preempt the entire statute. [00:05:40] Speaker 01: It really is. [00:05:40] Speaker 01: It's a long-winded way of asking. [00:05:42] Speaker 01: So if we decide against you on preemption, we really don't have to decide viewpoint discrimination, First Amendment, or due process. [00:05:51] Speaker 04: It would render those. [00:05:53] Speaker 04: The Constitutional Alliance Doctrine would probably render those moot. [00:05:58] Speaker 04: So with VRF, they post this information online. [00:06:02] Speaker 04: And they have challenged the statute, as we discussed, on both the NVRA, the public disclosure provision of the NVRA, and under the First Amendment, several First Amendment arguments, including as applied and facially. [00:06:18] Speaker 00: Are you still making a standing argument [00:06:20] Speaker 04: We are making the standing argument pertaining to the NVRA. [00:06:24] Speaker 04: That's right. [00:06:25] Speaker 04: That's based on new case law that was entered in a couple of other circuits. [00:06:32] Speaker 00: Doesn't the NVRA provide a private right of action that was the basis for this lawsuit? [00:06:38] Speaker 04: It provides a private right of action, but there has to be an injury in fact. [00:06:41] Speaker 04: And both the Third and the Sixth Circuits have stated that if you [00:06:47] Speaker 04: If you're not seeking the data for a purpose that is promoted by the NVRA, you don't have an injury in fact. [00:06:53] Speaker 04: You don't have standing. [00:06:54] Speaker 00: Well, doesn't the attorney general here think that they've committed a crime, a prosecutable crime? [00:07:02] Speaker 04: The attorney general has, it's been referred to the attorney general for investigation. [00:07:06] Speaker 04: No prosecutions have actually commenced. [00:07:08] Speaker 00: So this is still being investigated. [00:07:11] Speaker 00: Does voters have a credible threat of prosecution that would confer [00:07:17] Speaker 00: pre-enforcement standing here? [00:07:21] Speaker 00: You can disavow that the attorney general is going to prosecute, and that might help, but that's about what it would take. [00:07:29] Speaker 04: Under the First Amendment, my understanding is that under the First Amendment, there may be some standing, but under the NVRA, unless if they're seeking it for a purpose supported by the NVRA. [00:07:46] Speaker 04: and there's a credible threat of prosecution, then there would be an injury. [00:07:52] Speaker 04: In fact, in this case, the question is whether they can get the data going forward. [00:07:57] Speaker 04: They are challenging the NVRA. [00:07:59] Speaker 04: And the question is whether they can get the data going forward. [00:08:03] Speaker 01: I am sorry. [00:08:04] Speaker 01: I am totally at a loss to understand your standing argument. [00:08:08] Speaker 01: I read those cases. [00:08:09] Speaker 01: They're First Amendment cases. [00:08:11] Speaker 01: They're not denying standing based on the NVRA. [00:08:16] Speaker 01: And you referred to your brief in chief in the earlier appeal prior to the preliminary injection. [00:08:23] Speaker 01: So I look for your argument there, because you didn't have it in your 28-J letter, and you didn't argue standing in your brief in chief. [00:08:29] Speaker 01: There was a supplemental brief that referred to the chilling of [00:08:35] Speaker 01: And so I assume that your standing argument was going to be the opposite of what you just told Judge Tempovich. [00:08:42] Speaker 01: I assume it was going to be on the First Amendment claim, not the NVRA. [00:08:46] Speaker 01: You just got through saying that they can't publish it. [00:08:50] Speaker 01: Well, why isn't that an injury? [00:08:52] Speaker 01: In fact, that's what they're saying. [00:08:53] Speaker 01: We want to publish the data. [00:08:55] Speaker 04: They've already published the data that they've been given. [00:08:58] Speaker 04: The question is whether they can continue to request the data going forward unconditionally. [00:09:05] Speaker 01: Okay. [00:09:06] Speaker 01: So you're saying that voter data, they never withdrew that from the internet? [00:09:12] Speaker 04: They never withdrew it, but they put it back online once they got the preliminary injunction, is my understanding. [00:09:19] Speaker 03: But the... Why does the voter data, why isn't that necessary to, for whatever conclusion voters draws from this data, why isn't that necessary to essentially show its work? [00:09:33] Speaker 03: And then the proper response of New Mexico is to say, as it did, you're not comparing the correct time periods or something, and then the public decides. [00:09:45] Speaker 03: Why can't that come out and there be a full discussion? [00:09:50] Speaker 03: That's what I'm not understanding. [00:09:52] Speaker 04: Because you can release numbers. [00:09:53] Speaker 04: You can show what the showing its work was. [00:09:57] Speaker 04: Well, we counted. [00:09:59] Speaker 04: You don't need the actual names, addresses, party affiliation, voter history. [00:10:04] Speaker 04: Well, you need the voter history, but you can just do that as an aggregate, as an anonymized aggregate. [00:10:08] Speaker 04: You can say, well, according to our records, we have 9,342,000 people who voted in the last election. [00:10:14] Speaker 04: But according to the Secretary of State's final certification of the ballots, there were 3,000 more. [00:10:20] Speaker 04: And they can say that. [00:10:21] Speaker 04: They can certainly say that. [00:10:23] Speaker 04: But they can say that without listing everybody's name in a non-anonymized fashion. [00:10:30] Speaker 03: What's the perceived harm? [00:10:31] Speaker 03: If my name is on the list that I voted in an election, even my affiliation, what's the harm in that? [00:10:39] Speaker 04: If you're a member of a party that's perhaps a small minority in whatever community you live in, maybe you don't want that getting out. [00:10:47] Speaker 04: And there have been some issues of voter harassment in Otero County, for instance. [00:10:51] Speaker 04: They didn't necessarily use VRF's data, but that just demonstrates the importance of privacy. [00:10:56] Speaker 04: So that's it? [00:10:58] Speaker 04: Privacy, yes. [00:11:00] Speaker 00: The interest of the voters in privacy yes, yes your honor the bell of the bellows case that addressed that privacy argument and basically said that Congress struck a different balance under the under the Registration Act and That kind of answered the question You know what was what's the flaw in bellows? [00:11:20] Speaker 04: preemption analysis the bellows [00:11:24] Speaker 04: Well, they said, we don't want to decide. [00:11:26] Speaker 04: We don't want to weigh these two interests. [00:11:28] Speaker 04: That's what they said. [00:11:28] Speaker 04: We don't want to weigh. [00:11:29] Speaker 04: But by making this decision, they have to weigh the interest. [00:11:32] Speaker 04: There's no way around that. [00:11:34] Speaker 04: And they weighed. [00:11:35] Speaker 04: Then they ended up. [00:11:37] Speaker 00: No, they're saying Congress did the weighing. [00:11:39] Speaker 00: What? [00:11:40] Speaker 00: The case says that Congress did the weighing. [00:11:43] Speaker 00: And it's not for the court to invalidate that policy. [00:11:49] Speaker 04: No, but they weighed it anyway. [00:11:53] Speaker 04: that the privacy is a lower concern. [00:11:56] Speaker 04: But if you look at both the findings of Congress and the purposes, it seems that encouraging voter registration was of much greater importance under the NVRA. [00:12:10] Speaker 03: Is New Mexico a sore thumb here? [00:12:13] Speaker 03: The voters references its work in 33 states. [00:12:16] Speaker 03: And I didn't see where it really pulled the string to say New Mexico is the only one that does this. [00:12:22] Speaker 03: But is New Mexico the only one or in a small minority that are this restricted? [00:12:29] Speaker 03: I don't know about that. [00:12:30] Speaker 04: Well, there was a Maryland statute that was considered in the Fusaro case, Fusaro versus Cogan. [00:12:36] Speaker 04: And now anything was even more restrictive than the one [00:12:39] Speaker 04: than the one in New Mexico. [00:12:41] Speaker 00: They found preemption there also, didn't they? [00:12:45] Speaker 04: Only because it restricted the request for data to Maryland registered voters. [00:12:51] Speaker 04: It did not concern the actual use restrictions. [00:12:57] Speaker 00: You wanted to save some rebuttal time? [00:12:59] Speaker 00: Yes. [00:13:00] Speaker 00: Thank you very much. [00:13:22] Speaker 02: Good morning. [00:13:23] Speaker 02: I'm Eddie Grime of Graves Garrett Grime, Kansas City, Missouri, here on behalf of Appellee and Cross Appellant Voter Reference Foundation. [00:13:32] Speaker 02: With me is Matthew Miller of my office. [00:13:35] Speaker 02: May it please the court? [00:13:38] Speaker 02: I think one way I want to start is to clarify a few things procedurally that seem important. [00:13:45] Speaker 02: And they were raised just a moment ago with my brother. [00:13:50] Speaker 02: And I think just clarifying the sort of order of operations between the NVRA and the First Amendment in this case is important because looking back, I just said we are across appellant. [00:14:04] Speaker 02: I think it's now clear looking back at the case that this court could affirm. [00:14:09] Speaker 02: Maybe the only way to say this is we're asking for the court to affirm [00:14:14] Speaker 02: the district court in this case. [00:14:16] Speaker 02: If it does that, then in fact, we will have received all the relief to which we are entitled. [00:14:24] Speaker 02: Our injuries would have been redressed. [00:14:27] Speaker 00: And so as much as we... And we need not reach the viewpoint discrimination or the [00:14:32] Speaker 00: broader First Amendment vagueness. [00:14:34] Speaker 00: That's correct. [00:14:35] Speaker 02: I mean, we would sure love to have a decision on that, but you're a federal court, and we know that that's not what you do. [00:14:41] Speaker 01: Have you already received all of the data that you've requested? [00:14:44] Speaker 02: To date, I believe we have. [00:14:48] Speaker 02: There could be some pending requests, but we've gotten the data. [00:14:51] Speaker 02: Now, what's happened, and you can see this in the record, is that New Mexico has said, you know, we're giving you this data, we're answering your NVRA letter, [00:15:01] Speaker 02: But we're giving this to you under IPRA, which is their state open records law. [00:15:05] Speaker 02: And so we don't think the matter is moot. [00:15:08] Speaker 02: We think that if the case were to go away, we'd be right back where we started. [00:15:13] Speaker 02: And I think it's on page eight of the opening brief for the state. [00:15:18] Speaker 02: They've said, we haven't disclaimed an interest in prosecuting you. [00:15:21] Speaker 02: And just we heard here today, again, they were given a chance to say, will you pull back on that? [00:15:26] Speaker 02: And they haven't. [00:15:27] Speaker 02: And so we think we're very much at risk for being prosecuted, even though, as the district court found, if you overlay the three statutes as they existed at that time, there's nothing in there that says there's actually a blanket ban on sharing the data. [00:15:42] Speaker 02: There's nothing in there that says you can't post it on the internet the way that we've done it. [00:15:47] Speaker 02: And so really this turned out to be just sort of an office policy that was articulated throughout the litigation and that changed as the course of the litigation went, even before the statute was amended. [00:15:59] Speaker 02: So as I think we've laid out, there actually is a statute now that says you can't publish on the internet. [00:16:08] Speaker 03: Revealing publishing the name the address the affiliation protect integrity of the electoral process. [00:16:14] Speaker 03: How does that? [00:16:16] Speaker 02: Well, we so we had some testimony about this actually back the preliminary injunction hearing. [00:16:21] Speaker 02: It's part of the trial record We actually had Gina Swaboda who's the elections director for VRF walk through how this how this helps? [00:16:30] Speaker 02: For one we are able to [00:16:34] Speaker 02: You know, we're able to have voters who are actually interested, who live on a block and, you know, you can actually search for just your block and you can say who all is, who all is listed as being a registered voter on this block. [00:16:50] Speaker 02: And if you see an older couple that, you know, passed away a few years ago, I mean, that's how you can begin to chip away at inaccuracies. [00:16:59] Speaker 02: But if you don't have the name, if you don't have the address, there's a problem. [00:17:04] Speaker 02: One thing that counsel didn't mention was birth year. [00:17:06] Speaker 02: I should mention that's something else. [00:17:08] Speaker 02: Not date of birth, but birth year. [00:17:10] Speaker 02: And that would cure father and son issues. [00:17:13] Speaker 02: But that's how. [00:17:15] Speaker 02: I mean, basically, an individual can go on there. [00:17:18] Speaker 02: And the court could go on there today. [00:17:20] Speaker 02: I think the address is in evidence. [00:17:24] Speaker 02: The website's in evidence. [00:17:25] Speaker 02: And you can search for yourself. [00:17:28] Speaker 02: You can search for people you know. [00:17:30] Speaker 02: You can search for a community. [00:17:33] Speaker 02: And without the names, the people who know everybody else, who know where they live, can't use the information. [00:17:41] Speaker 00: Do you think New Mexico could constitutionally, though, restrict access to that data that shows? [00:17:49] Speaker 00: I mean, here you're fighting that they've created a database you want to access. [00:17:52] Speaker 00: But let's say their database is just going to be [00:18:00] Speaker 02: Name only. [00:18:03] Speaker 02: Sure, maybe name only and then your unique number. [00:18:06] Speaker 02: I mean, so there's actually many answers to that question. [00:18:09] Speaker 02: I mean, first, they couldn't actually have a database like that under federal law because now under the NVRA and HAVA, they have to have electronic database with more information. [00:18:21] Speaker 02: So let's... That's a federal statutory... That's a federal statute. [00:18:24] Speaker 02: So that's not your question. [00:18:25] Speaker 02: I understand. [00:18:26] Speaker 02: And so they would say... [00:18:30] Speaker 02: And let's say that you could read the public disclosure provision to only require disclosure of name and ID number. [00:18:39] Speaker 02: Let's say that Congress even went and amended the statute or something like that. [00:18:44] Speaker 02: I mean, there's no First Amendment right of access. [00:18:47] Speaker 02: to the data. [00:18:49] Speaker 02: So we're not claiming the First Amendment gives us right of access. [00:18:51] Speaker 02: Now, where we do back in trouble again is if the Secretary of State said, well, we'll let political parties have it and the professional political operatives who we trust, but we don't want to let these other kind of groups have that information. [00:19:06] Speaker 02: Then we'd be back into discrimination and providing the access. [00:19:11] Speaker 00: That's a little different issue. [00:19:12] Speaker 00: It's a different issue. [00:19:12] Speaker 00: Kind of the fundamental data creation. [00:19:15] Speaker 02: That's right. [00:19:16] Speaker 02: That's right. [00:19:18] Speaker 02: I wanted to emphasize this also because the political speech question, I understand the court may or may not reach that, but it seems important. [00:19:31] Speaker 02: The actual data portal that VRF uses that you could go on today and you could click on your state or you could just search for your address across the country, what it says at the very top of that website is [00:19:43] Speaker 02: The purpose of this website is to provide public access to official government data pertaining to elections, including voter registration rules, with a goal of encouraging greater voter participation in all 50 states. [00:19:58] Speaker 02: Our system of government is based upon citizen participation. [00:20:03] Speaker 02: We believe the people in effect own the data. [00:20:05] Speaker 02: and have a legal right to see it in an understandable and transparent form, let freedom ring. [00:20:11] Speaker 02: And so this messaging is throughout the presentation of data. [00:20:16] Speaker 02: And in fact, after you go and review things, if you have a problem, there's even a little toolkit on the website that tells you, here's how you go to Secretary Oliver and raise your concerns, or here's how you go to another local official. [00:20:30] Speaker 02: It kind of walks you through the process. [00:20:33] Speaker 02: One thing I want to leave the court with, I'm happy to answer more questions if there are more questions, but an important point I want to leave the court with is we don't have to assume that these different goals in the NVRA are at war with each other. [00:20:46] Speaker 02: We don't have to assume that. [00:20:48] Speaker 02: The record that they are at war with each other is really not here. [00:20:52] Speaker 02: Congress certainly might take opposing goals and try to reconcile them. [00:20:55] Speaker 02: I mean, that's how statutes get passed. [00:20:58] Speaker 02: But in this case, I don't know that we can say that. [00:21:01] Speaker 02: Because our position, and I think it would be borne out, is that when people have a greater confidence in the integrity of the system, they're more likely to register to vote. [00:21:12] Speaker 02: They're more likely to participate. [00:21:14] Speaker 02: I understand the argument is that they're worried about privacy and people don't want others to know that they voted. [00:21:21] Speaker 02: But we don't live in that kind of a system. [00:21:24] Speaker 02: Who you vote for is private. [00:21:26] Speaker 02: But the fact that you've joined this political community and said, I'm going to throw my hat in the ring and I will be casting a vote, that is not something that's private. [00:21:34] Speaker 02: And so we think the goals all go together. [00:21:37] Speaker 02: And I'm happy to take it. [00:21:39] Speaker 00: I think that's true, although some jurisdictions are going to opt out. [00:21:43] Speaker 00: The system apparently New Mexico has for domestic violence. [00:21:48] Speaker 00: Is there any other category that can be excused from the dissemination of the data? [00:21:56] Speaker 02: Yes, the answer is a little bit awkward, but judges and their family members can opt out. [00:22:04] Speaker 02: And so they often do. [00:22:07] Speaker 02: And so we'll recognize opt-outs for those reasons. [00:22:11] Speaker 00: The state could expand or contract that. [00:22:14] Speaker 00: that group of voters that might get special protection. [00:22:18] Speaker 00: It could. [00:22:18] Speaker 00: To answer Judge Phillips' questions, are there other states besides Maryland and New Mexico that have gone this path? [00:22:28] Speaker 02: Well, I think we actually do publish Maryland data today. [00:22:32] Speaker 02: I should know that. [00:22:34] Speaker 02: I don't quite know, but I think that part of our little map is colored red. [00:22:38] Speaker 02: But I would say that [00:22:40] Speaker 02: Almost every state does have a safe at home or protected voter program. [00:22:45] Speaker 02: I think the secretaries of state at their annual conferences compared notes long ago and they've all sort of copied each other and that's a part of state law in most states. [00:22:54] Speaker 02: But the states could do this. [00:22:56] Speaker 02: I mean, it would be an interesting question not presented here about, you know, at what point is your voter database so riddled with gaps that we are now undermining the purposes of NVRA but obstacle preemption [00:23:09] Speaker 02: you know, is the kind of supple tool for handling that issue. [00:23:12] Speaker 00: No states tried to restrict home addresses or party affiliation or voter history? [00:23:18] Speaker 02: I want to say, actually, I think Illinois has tried to restrict maybe street number. [00:23:25] Speaker 02: So you could say Lincoln Avenue or Clark Avenue, but not the number. [00:23:29] Speaker 02: But those are big street. [00:23:30] Speaker 02: And I think there may be issues there. [00:23:32] Speaker 02: But yeah, there are some examples. [00:23:34] Speaker 03: Do any states have an opt-out? [00:23:36] Speaker 03: In other words, you vote and you check a box, keep my name off the list? [00:23:41] Speaker 03: Not that I'm aware of. [00:23:42] Speaker 03: What do you think of that? [00:23:43] Speaker 03: Could New Mexico do that? [00:23:45] Speaker 02: I think that'd be a problem because obviously these safe at home programs [00:23:51] Speaker 02: They are opt-out programs that apply to a specific instance where this person really is at risk, and the risk to that person is very high. [00:24:05] Speaker 02: The impact on the integrity of the overall voter roll that we are looking at is low because there's not that many people who actually fall into those categories. [00:24:14] Speaker 02: But I mean, if it were just a blanket opt-out, then I think we'd have a much bigger problem. [00:24:18] Speaker 03: Blanket meaning you know and can choose to anyone. [00:24:22] Speaker 03: Yeah, anyone can choose It is a little bit of a penalty though to vote if you don't want your name on that list and you don't want your neighbors Hey, I bet you voted for Joe small Well, I actually know somebody with that voice but but no I do think I mean [00:24:40] Speaker 02: You know, states that say you should register, you know, my home state, Missouri, you don't register Republican or Democrat. [00:24:48] Speaker 02: You can decide each time, I'm going to go vote in the Democrat primary, I'm going to vote Republican. [00:24:53] Speaker 02: And so, but states that make you do that, I mean, there's a cost imposed there. [00:24:57] Speaker 02: But, you know, we don't see statutes striking down those kinds of registration regimes. [00:25:03] Speaker 01: I know we're just kind of skipping around. [00:25:07] Speaker 01: Going back about 10 minutes ago, do you agree with the assumption that if we decide that the NVRA preempts the state statute, that that ends your claim? [00:25:21] Speaker 01: I mean, that that resolves your claim to your satisfaction, that that would remove any impediment to you publishing the data? [00:25:29] Speaker 02: Yes, to the extent that the preemption extends to public disclosure, it would. [00:25:35] Speaker 02: Because at that point, there's nothing left. [00:25:38] Speaker 02: I mean, we would have federal law saying that we can do this. [00:25:44] Speaker 02: And we would do it. [00:25:46] Speaker 02: I'm sorry. [00:25:47] Speaker 02: You go ahead. [00:25:48] Speaker 02: I'm not even aware of the theory. [00:25:49] Speaker 02: It's not been articulated to me how we could be in trouble other than by the statutes that are being preempted. [00:26:00] Speaker 01: Is the data that you originally published on the internet, is that still available on the internet? [00:26:06] Speaker 02: You know, I'm actually not sure if that, well, it would be. [00:26:09] Speaker 02: It would be because as they update it, they'll show more and more elections in which you voted. [00:26:15] Speaker 02: And so I believe, you may not be able to look at the user-facing web page and tell which is the old and which is the new data. [00:26:27] Speaker 01: But the data that you published has been taken off. [00:26:32] Speaker 02: Oh, it's been taken off multiple times. [00:26:34] Speaker 02: I mean, we took it off right... That's what I'm trying to ask. [00:26:36] Speaker 02: Oh, I'm sorry. [00:26:37] Speaker 02: Yes. [00:26:37] Speaker 02: The original data was it was taken off as soon as we saw the ProPublica piece and saw that we were going to be prosecuted. [00:26:44] Speaker 02: We took it off. [00:26:45] Speaker 02: Then after we got the preliminary injunction, we put it back on. [00:26:49] Speaker 02: Then when this court stayed the preliminary injunction, that very day we took it off. [00:26:54] Speaker 02: Okay. [00:26:55] Speaker 02: Okay. [00:26:56] Speaker 02: We try to be careful. [00:26:57] Speaker 03: Can you tell me precisely what is the viewpoint that is subject to viewpoint discrimination? [00:27:03] Speaker 03: What is it? [00:27:05] Speaker 02: Actually, I think there's probably a couple of viewpoints, but the main viewpoint is that voters ought to have access to this and that when you look at the secretary's data, there are concerns about how the records are being kept. [00:27:24] Speaker 02: That's the viewpoint. [00:27:26] Speaker 02: There's two things that go hand in hand. [00:27:28] Speaker 00: Wouldn't the viewpoint be voters? [00:27:31] Speaker 00: That's the relevant investigation, isn't it? [00:27:37] Speaker 00: You're saying that the government is discriminating against you because [00:27:42] Speaker 00: They don't like the way you're using this information. [00:27:45] Speaker 02: That's right. [00:27:46] Speaker 00: It's not an access question. [00:27:47] Speaker 00: It's a publication question. [00:27:49] Speaker 02: Well, it is a publication question, but I tried to kind of break it apart into two points. [00:27:55] Speaker 02: One is our, I should have said, maybe I kind of mumbled, our view that voters should be able to access the data. [00:28:01] Speaker 02: and that when one does access the data, here's what you see about the secretary's record keeping. [00:28:08] Speaker 00: Is it a fact question then for the district court that you were targeted because of that policy outlook? [00:28:16] Speaker 02: Yes, that is a required showing and it's a there's a question of historical fact but then ultimately there's a question of constitutional fact to see whether those meet the standard. [00:28:26] Speaker 03: Why don't you need [00:28:28] Speaker 03: a comparator group that says, everything is going perfectly down in New Mexico. [00:28:35] Speaker 03: There hasn't been a single mistake made. [00:28:36] Speaker 03: And the New Mexico authorities give them the information. [00:28:41] Speaker 03: Oh, thank you. [00:28:41] Speaker 03: We love your viewpoint. [00:28:43] Speaker 03: But then when you raise criticisms, they say, no way. [00:28:46] Speaker 03: You're out to cause problems. [00:28:48] Speaker 03: Then I get it. [00:28:49] Speaker 03: There's a viewpoint discrimination. [00:28:51] Speaker 03: But absent the comparator group, how do you get there? [00:28:55] Speaker 02: Well, the comparator case law, I think it was from the employment context, where you've got many, many different circumstances. [00:29:05] Speaker 02: But really, the comparator evidence is just kind of a version of circumstantial evidence where you don't have something that's direct that says, I'm doing this because of your viewpoint. [00:29:18] Speaker 02: I don't think there's any case law that says you have to always have that kind of circumstantial evidence in this kind of a case where it's basically a request for data and there are not that many of them. [00:29:33] Speaker 02: It's basically some for-profit companies and then the major parties. [00:29:38] Speaker 03: Do you think it's legitimate, even if you say this isn't New Mexico's viewpoint, would it be a legitimate viewpoint for a state to say, [00:29:47] Speaker 03: We don't want to give this information out because we're concerned that the minority party is going to get their doors knocked on. [00:29:55] Speaker 03: Let me see your citizenship papers or whatever else. [00:29:58] Speaker 03: And we're just not going to put up with that. [00:30:00] Speaker 03: So that's our viewpoint. [00:30:01] Speaker 03: You don't get it. [00:30:02] Speaker 03: Would that not be legitimate? [00:30:04] Speaker 02: But unfortunately, depending on exactly how they articulate that, there are statutes that already punish harassment of voters or trying to force people to register. [00:30:17] Speaker 02: Or there's federal statutes and probably, I think, some state statutes. [00:30:20] Speaker 02: So it'd be one thing for New Mexico to say, this is happening. [00:30:25] Speaker 02: We're going to punish that specific conduct. [00:30:27] Speaker 02: But to say, people like you seem more likely to do that, [00:30:31] Speaker 02: That would be a problem. [00:30:32] Speaker 02: I mean, that would be viewpoint discrimination. [00:30:36] Speaker 00: Thank you, counsel. [00:30:37] Speaker 00: Appreciate your argument. [00:30:38] Speaker 00: We have Mr. Marquez had some rebuttal. [00:30:49] Speaker 04: Thank you, Your Honors. [00:30:49] Speaker 04: I just have a couple of follow-ups regarding what Mr. Grimes said. [00:30:56] Speaker 04: So first of all, he went into a great detail, not really much detail, but he described how he intended to, how VRF supposedly uses this data. [00:31:06] Speaker 04: to crowdsource, to allow people to investigate their neighbors and friends, and find inaccuracies in the voter rolls. [00:31:14] Speaker 04: However, they have not, I don't think there's anything in the record, and they certainly didn't bring it up, regarding any successes in all 33 states where they have this data available. [00:31:27] Speaker 04: They have not provided any sort of evidence that this is actually being done. [00:31:34] Speaker 01: What does that matter? [00:31:36] Speaker 04: Well, I think under the recent determinations regarding standing under the PILF cases, Pennsylvania and Michigan, [00:31:48] Speaker 04: They have stated that it's kind of difficult to obtain standing. [00:31:52] Speaker 04: And the Third Circuit said, well, without evidence that PILF had concrete plans to imminently pursue a desired course of action bearing a nexus to an interest Congress sought to protect that was hindered only by the Secretary's refusal to turn over the records, PILF has no standing. [00:32:08] Speaker 04: They don't describe how they're going to do anything, what they're going to do, how the system really works, whether the system works. [00:32:18] Speaker 04: Frankly, what he's describing seems to border on, in certain circumstances, voter harassment. [00:32:24] Speaker 04: And voter harassment is most assuredly not what the NVRA was looking to accomplish. [00:32:32] Speaker 00: Finally, in turn... But you've told this organization that they're violating the law. [00:32:37] Speaker 04: Yes, we have. [00:32:39] Speaker 00: I don't think those were the facts of PILF. [00:32:43] Speaker 00: Here, they don't have to speculate whether the government thinks they're covered by the law. [00:32:48] Speaker 00: You say they are. [00:32:51] Speaker 00: Well, they violate... Sorry, is the threat of prosecution, and in response to the threat, they remove their data from their website. [00:33:01] Speaker 04: I see my time is up, if I may... Go ahead and answer. [00:33:05] Speaker 04: All right. [00:33:06] Speaker 04: So, they violated the law because... Well, certainly somebody violated the law because [00:33:12] Speaker 04: When the data was originally received, there was an affidavit. [00:33:16] Speaker 04: And it wasn't under NVRA, by the way. [00:33:18] Speaker 04: It was just through the New Mexico election code. [00:33:20] Speaker 04: NVRA didn't come into it. [00:33:21] Speaker 04: When they received the data, they worked with another organization, but they were working with them. [00:33:27] Speaker 04: It wasn't an arms-length transaction between them. [00:33:30] Speaker 04: There was an affidavit signed saying it wasn't going to be disclosed. [00:33:34] Speaker 04: And then it was disclosed. [00:33:35] Speaker 04: So there was an investigation as to [00:33:38] Speaker 04: who violated the law and VRF's role in this violation. [00:33:42] Speaker 04: Because somebody essentially committed perjury because this affidavit was done. [00:33:49] Speaker 04: They signed an affidavit and then they disclosed it. [00:33:50] Speaker 04: So certainly they violated the law in that sense. [00:33:54] Speaker 04: But that wasn't an NVRA request. [00:33:57] Speaker 04: That was just a simple request under the election code. [00:34:00] Speaker 00: And before you sit down, with respect to the injunction, [00:34:07] Speaker 00: Is Mr. Grimes correct that the injunction is currently structured, would protect them from enforcement under the New Mexico statute? [00:34:21] Speaker 04: Well, the federal, the district court decision? [00:34:26] Speaker 04: Yes. [00:34:26] Speaker 04: Currently, yes. [00:34:27] Speaker 04: That would prevent them from, as it stands now, they have held that this statute is preempted by the NBRA. [00:34:35] Speaker 04: So yes. [00:34:36] Speaker 00: Thank you, counsel. [00:34:37] Speaker 00: We appreciate your arguments. [00:34:38] Speaker 00: Counselor excused and the case is submitted. [00:34:40] Speaker 04: Thank you very much, Your Honors.