[00:00:00] Speaker 00:
Case number 16-5196, League of Women Voters of the United States at L, Appellant vs. Brian D. Nubai and his capacity as the Executive Director of the United States Election Assistance Commission at L. Mr. Keats for the Appellant League of Women Voters at L, Mr. Tenney for Brian D. Nubai and Commission, Mr. Kobach for Appellee, Kansas, Secretary of State, and Ms.

[00:00:23] Speaker 00:
Phillips for Appellee Public Interest Legal Foundation.

[00:00:26] Speaker 00:
Good morning.

[00:00:27] Speaker 08:
Good morning.

[00:00:28] Speaker 08:
May it please the Court.

[00:00:29] Speaker 08:
I am Michael Keats of Stroken, Stroken, Levant.

[00:00:33] Speaker 08:
I appear for the League of Women Voters.

[00:00:35] Speaker 08:
Your Honors, the Executive Director of the U.S.

[00:00:39] Speaker 08:
Election Assistance Commission did not have authority to grant the request of three states to require documentary proof of citizenship in connection with the federal form.

[00:00:49] Speaker 08:
The Election Assistance Commission is set up as a bipartisan commission.

[00:00:54] Speaker 08:
It has four seats.

[00:00:56] Speaker 08:
Right now, three are occupied.

[00:00:58] Speaker 08:
The intention was to have two Democrats and two Republicans.

[00:01:01] Speaker 08:
Right now, we have two Republicans and one Democrat.

[00:01:04] Speaker 08:
Under the organic statute that created the commission, the Help America Vote Act, you need three commissioners to approve of a commission action.

[00:01:13] Speaker 08:
The obvious intent here is to make sure that

[00:01:16] Speaker 08:
one Democrat and at least one Republican support an action that the Commission takes to ensure bipartisanship.

[00:01:24] Speaker 08:
What Mr. Newby did here was literally turn the org chart of this agency on its head and threw the entire structure of the agency out.

[00:01:36] Speaker 08:
It is undisputed that three commissioners did not approve of Mr. Newby's actions.

[00:01:41] Speaker 08:
And as a result, those actions were ultra-virates.

[00:01:45] Speaker 08:
It's also undisputed that there was no delegation of authority by this commission, by three commissioners, to Mr. Newby to create, let alone change, the EAC's policy.

[00:02:01] Speaker 08:
No one is seriously contending that when this commission was reconstituted in 2015 with a quorum and they adopted a new management statement, that that management statement

[00:02:12] Speaker 08:
delegated the authority to change the federal form, let alone to change it in a way that was contrary to prior decisions of this commission, let alone prior decisions of the FEC, let alone prior decisions of the Congress.

[00:02:24] Speaker 08:
And at the end of the day, that is the bottom line.

[00:02:27] Speaker 08:
We have an executive director who acted without authority, and under the Administrative Procedure Act, his actions must be vacated.

[00:02:35] Speaker 07:
Even if the commission had done it itself,

[00:02:38] Speaker 07:
with no more than the language used by the executive director, there still would have been the problems of

[00:02:47] Speaker 07:
explaining the decision under Fox television and also explaining why this was necessary to carry out the state substantive requirement.

[00:03:02] Speaker 07:
I agree.

[00:03:03] Speaker 07:
And both of those are completely missing.

[00:03:05] Speaker 07:
Agree.

[00:03:06] Speaker 07:
Yeah, no, this is administrative.

[00:03:08] Speaker 07:
This didn't mean we want them to get lost in the delegation.

[00:03:12] Speaker 08:
I appreciate that.

[00:03:15] Speaker 08:
If you wanted to find ways to violate the Administrator Procedure Act and come up with a hypothetical for law students as to how to do it, this is a pretty good hypothetical.

[00:03:22] Speaker 08:
And at the end of the day, bottom line, that really is the case.

[00:03:28] Speaker 08:
And even the Department of Justice, which I think understandably faced with these facts, concluded that at a minimum they had to consent to a preliminary injunction of some form to reverse this.

[00:03:42] Speaker 08:
Now, let me take a step back.

[00:03:45] Speaker 08:
This is an unusual case, and we set it up as a preliminary injunction initially, because when these actions happened, it was back in February, and there were a series of primary elections in the various states, and obviously now we have the presidential elections.

[00:04:00] Speaker 08:
That's all by the boards.

[00:04:02] Speaker 08:
This court is a reviewing court, even with a preliminary injunction, actually has the authority to decide this case, and you actually have the power to vacate the actions.

[00:04:11] Speaker 08:
The case that actually comes to mind is actually, Judge Williams, one of your cases, a case that you released on the panel for.

[00:04:18] Speaker 08:
It was American Bioscience versus Thompson, 2001 case, 269 F3, 1077.

[00:04:25] Speaker 08:
What that case says, and that came up also on the denial of a preliminary injunction, where the judge not only found a lack of likelihood of success on the merits, but also the absence of irreparable harm.

[00:04:36] Speaker 08:
What the court said there is,

[00:04:38] Speaker 08:
the entire case doctrine applies.

[00:04:40] Speaker 08:
When a district court sits in review of an agency action, it's actually a question of law.

[00:04:46] Speaker 08:
You have an administrative record.

[00:04:47] Speaker 08:
That's the record, which is what we have here when this was decided.

[00:04:50] Speaker 08:
It's been certified by the Department of Justice.

[00:04:53] Speaker 08:
And at the end of the day, if you have established entitlement to, if you have established a violation of the Administrative Procedure Act, the remedy is vacator.

[00:05:02] Speaker 08:
And I'll read some language from the case.

[00:05:05] Speaker 08:
Yes, that's correct.

[00:05:07] Speaker 08:
That's correct.

[00:05:07] Speaker 08:
Not always.

[00:05:08] Speaker 09:
And you haven't discussed that in your brief, I don't think, have you?

[00:05:11] Speaker 08:
We've addressed that.

[00:05:12] Speaker 08:
We think that actually there is a grounds survey catered here, and it's pretty clear.

[00:05:17] Speaker 08:
But I'm happy to address your concern.

[00:05:20] Speaker 08:
So what this court wrote here is that when a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal.

[00:05:30] Speaker 08:
The entire case on review is a question of law.

[00:05:35] Speaker 08:
If an appellant has standing, and the League of Women Voters plainly has standing, which is undeniable here, and that's just a quote from the case, and prevails on its APA claim, it is entitled to relief under that statute, which normally will be a vacator of the agency's order.

[00:05:52] Speaker 08:
But whether or not an appellant has suffered a reputable injury, if it makes out a case under the APA, it is entitled to a remedy.

[00:05:59] Speaker 08:
I'm not trying to tell you here that we haven't made out a case for irreparable harm.

[00:06:05] Speaker 08:
This case fundamentally involves the rights of our organizations to organize, to communicate, to engage in political speech.

[00:06:14] Speaker 08:
It involves the rights of voters to have their votes counted.

[00:06:17] Speaker 08:
And we have no doubt and we think that there are circuits around the country that have agreed with us that irreparable harm is established here.

[00:06:24] Speaker 07:
What's your best formulation of the irreparable harm that happened here?

[00:06:28] Speaker 08:
Yeah, sure.

[00:06:29] Speaker 08:
Yeah, sure.

[00:06:30] Speaker 08:
So my best formulation of the irreparable harm here is I want to refer back to Judge Scalia's language and I'll tie it together with what happened here.

[00:06:37] Speaker 08:
What Judge Scalia said is that the federal form, this is not about the state's election forms.

[00:06:42] Speaker 08:
They can put in what they want subject to their own laws.

[00:06:44] Speaker 08:
We're not debating that.

[00:06:45] Speaker 08:
They can do that.

[00:06:46] Speaker 08:
They are doing that.

[00:06:47] Speaker 08:
What Justice Scalia says is, states retain the flexibility to design and use their own registration forms, but the federal form provides a backstop.

[00:06:56] Speaker 08:
No matter what procedural hurdles a state's own form imposes, the federal form guarantees that a simple means of registering to vote in federal elections will be available.

[00:07:08] Speaker 08:
How is that tied into our harm?

[00:07:11] Speaker 08:
So when we go out, it is absolutely true.

[00:07:14] Speaker 08:
We try, in Kansas in particular, to register voters to vote in both state and federal elections.

[00:07:19] Speaker 08:
That means trying to help them satisfy the documentary proof of citizenship requirements that are part of the state form.

[00:07:27] Speaker 08:
But there is a group of people we find

[00:07:30] Speaker 08:
time and time again that simply lack access, ready access to those documents.

[00:07:35] Speaker 08:
Who are they?

[00:07:36] Speaker 08:
Okay.

[00:07:36] Speaker 08:
They tend to be poor.

[00:07:38] Speaker 08:
They live in rural areas.

[00:07:39] Speaker 08:
They're African American.

[00:07:41] Speaker 08:
These are the people that, they're women who did nothing more than marry and change their legal name and moved into, moved out of the state.

[00:07:48] Speaker 08:
None of these people has done anything wrong.

[00:07:51] Speaker 08:
Okay, they have established their entitlement to U.S.

[00:07:54] Speaker 08:
citizenship with the meaning of the federal form by swearing under oath and fulfilling those elements.

[00:08:01] Speaker 08:
We use the federal form as the backstop for those people.

[00:08:06] Speaker 08:
Our core mission is to help all eligible voters to vote, not what the district court below thought was, well, your mission isn't harmed because you can help some of them to register because they have documentary proof.

[00:08:19] Speaker 08:
This form was created for our organizations.

[00:08:22] Speaker 08:
The statute expressly directs state election officials to make it available to us.

[00:08:27] Speaker 08:
The entire point of the National Voter Registration Act was to promote voter participation and to help voter registration organizations like ours do this important work.

[00:08:38] Speaker 09:
When you encounter an individual, a potential voter in Kansas, in a shopping center, you still have to go through all the various possibilities of establishing citizenship, regardless of the outcome of this case.

[00:08:59] Speaker 09:
Isn't that correct?

[00:09:01] Speaker 08:
If we want to get them to register in state and federal elections, yes.

[00:09:07] Speaker 08:
Yes.

[00:09:08] Speaker 09:
The voter drive and the registration is for both state and federal.

[00:09:12] Speaker 09:
Yes.

[00:09:13] Speaker 09:
So if that's the case, then you have to go through all the Kansas requirements for citizenship proof, even if you wouldn't have to go through for the federal.

[00:09:25] Speaker 08:
Well, if what you're saying is we have to have that conversation, the answer is yes.

[00:09:30] Speaker 08:
But there's a further conversation to be had.

[00:09:32] Speaker 08:
If you do not have those documents, the United States Congress has created a federal form that at least allows you to vote in a federal election.

[00:09:43] Speaker 08:
So it's that backstop function, again, that Justice Scalia himself identified.

[00:09:48] Speaker 08:
You are right.

[00:09:49] Speaker 08:
You are right.

[00:09:50] Speaker 08:
We would have that conversation with him.

[00:09:52] Speaker 09:
Can you also say that if, in fact, you're permitted

[00:09:55] Speaker 09:
to vote in a federal election but not permitted and not qualified to vote in a state election, that that would raise serious constitutional problems under Article 1 and the 17th Amendment.

[00:10:06] Speaker 08:
No, no, no, that's not it.

[00:10:07] Speaker 08:
With respect, I don't believe that's what he held at all.

[00:10:10] Speaker 08:
What he said, what he said was, if a state was precluded from being able to enforce its eligibility requirement,

[00:10:19] Speaker 08:
then a serious constitutional issue might arise.

[00:10:23] Speaker 08:
But happily, they didn't have to reach that because the state could go back to the EAC, which is the agency that has authority over the federal form.

[00:10:33] Speaker 08:
It's actually its only rulemaking authority that's binding on the states.

[00:10:37] Speaker 08:
This is an important central high-profile subject for them.

[00:10:41] Speaker 08:
and you can go back and demonstrate to the EAC that you are precluded, that because of whatever, that the mere oath is not sufficient, that you are not able to actually confirm eligibility and administer your elections without that proof, and what the EAC has

[00:10:56] Speaker 08:
What Congress decided, what the FEC decided afterwards, and what the EAC has consistently decided for more than a decade is that states are precluded.

[00:11:06] Speaker 08:
Most every state in this country already accepts the federal form to register in federal and state elections.

[00:11:12] Speaker 08:
Kansas is the outlier.

[00:11:13] Speaker 08:
Kansas is almost the only state right now, I think it is the only state right now, that is enforcing that requirement as a state in federal elections.

[00:11:20] Speaker 09:
Is Louisiana enforcing its ID requirement?

[00:11:23] Speaker 08:
I don't know if they are or they aren't.

[00:11:25] Speaker 08:
And also, I think, if you're referring to what the executive director referred to in her footnote, it's not clear that the AC was right in granting that request.

[00:11:33] Speaker 09:
Actually, I'm referring to what the Supreme Court in the Indian case referred to in its footnote.

[00:11:39] Speaker 09:
And also the oral argument by the Solicitor General saying that, at least implying, that what Louisiana was doing

[00:11:48] Speaker 09:
with requiring voter ID was quite all right.

[00:11:52] Speaker 08:
Well, and I will say the EAC in their 2014 decision on a footnote says they actually see that it actually might be wrong.

[00:11:59] Speaker 08:
They have never

[00:12:00] Speaker 08:
followed up on that, to be clear, but it is not clear that that's right, and it is different than documentary proof of citizenship.

[00:12:06] Speaker 08:
And the bottom line is you have consistent action going back by this agent, by Congress debated whether to include documentary proof.

[00:12:14] Speaker 08:
They rejected it.

[00:12:15] Speaker 08:
The FEC, when they adopted the rules that govern the federal form,

[00:12:19] Speaker 08:
considered whether to require naturalization information, they rejected it.

[00:12:24] Speaker 08:
The EAC, unanimously, a unanimous commission rejected it when they adopted those rules.

[00:12:28] Speaker 08:
The EAC, when they took over, consistently ruled against that.

[00:12:33] Speaker 08:
So the point being is, at the end of the day, it is up to the EAC to decide.

[00:12:39] Speaker 08:
whether that's necessary.

[00:12:41] Speaker 08:
And then if Kansas disagrees, if they think the EAC got it wrong, what Justice Scalia said is they can bring an APA challenge.

[00:12:47] Speaker 08:
And in fact, that's precisely what Kansas did in 2014.

[00:12:51] Speaker 08:
They went to the Commission.

[00:12:52] Speaker 08:
They presented their proof, which, by the way, was very modest and was certainly less than had been shown in the Arizona case that the agencies had previously had before them.

[00:13:02] Speaker 08:
And what the executive director said there is... Has the Commission ever

[00:13:05] Speaker 09:
pronounced either by way of an adjudication and interpretation or less likely a rule, that the word necessary is for the commission to decide as opposed to a state?

[00:13:20] Speaker 08:
They have taken, yes actually, they have not adopted a regulation that says that.

[00:13:24] Speaker 09:
Have they adopted, is there an adjudication by the commission saying that?

[00:13:28] Speaker 08:
Yes, adjudication in the sense of

[00:13:30] Speaker 08:
administrative procedure accents of an adjudication right, which is everything that isn't done as a formal rulemaking or as a formal hearing as an adjudication.

[00:13:37] Speaker 08:
So yes, they have.

[00:13:38] Speaker 08:
The first time they did it was in 2006 when the agency decided unanimously, initially, to reject Arizona's request for documentary proof of citizenship and there is a letter that sets forth the grounds and their understanding of necessary and who decides.

[00:13:54] Speaker 08:
That was not the first time, by the way, they took that position.

[00:13:56] Speaker 08:
In 2005, facing a Florida law that wasn't documentary proof, it had to deal with whether you had to provide information about your mental well-being, among other things.

[00:14:07] Speaker 08:
They also had taken the position unanimously, unanimously, it's undisputed that it was unanimous, that it was for the Commission to decide whether it was necessary and they deemed that was not necessary.

[00:14:15] Speaker 09:
The Louisiana change was, approval was by the Commission.

[00:14:23] Speaker 08:
Yes.

[00:14:24] Speaker 09:
What interpretation, if any, did the Commission give to the necessary phrase in deciding that?

[00:14:32] Speaker 08:
I don't know that they actually explain themselves.

[00:14:35] Speaker 08:
And as we have said and as we pointed out to the Commission, and the last word on the Commission is that might actually have been wrong.

[00:14:40] Speaker 08:
I can actually get the language if you want from the Commissioner's last decision.

[00:14:46] Speaker 08:
I think it's highly unlikely that it was a correct decision by the Commission.

[00:14:52] Speaker 08:
Do you want me to get the quote?

[00:14:56] Speaker 08:
Give me one moment, please.

[00:15:04] Speaker 08:
I'm actually running out of time anyway.

[00:15:07] Speaker 08:
You want to stand up for my rebuttal?

[00:15:08] Speaker 03:
I'll give it to you.

[00:15:09] Speaker 08:
Yeah, yeah, I'll give it to you.

[00:15:11] Speaker 08:
Sure, sure.

[00:15:12] Speaker 08:
Look, I've got 15 seconds left.

[00:15:14] Speaker 08:
Look, thank you.

[00:15:15] Speaker 08:
The most important thing I can urge you is the election – the registration deadlines are fast approaching, October 12th, October 19th, October 29th.

[00:15:21] Speaker 08:
I understand what that means for this appellate court.

[00:15:24] Speaker 08:
I understand what we're asking.

[00:15:25] Speaker 08:
I understand how fast we're asking you to act.

[00:15:28] Speaker 08:
It is not likely that we're asking you to do this, but given the gravity of the harm to voters and to our organizations, we urge that you do so.

[00:15:35] Speaker 06:
Thank you.

[00:15:45] Speaker 05:
Good morning.

[00:15:47] Speaker 04:
May it please the Court, as we indicated in our brief... Maybe you should identify yourself.

[00:15:52] Speaker 04:
I'm sorry, Daniel Tenney for the government.

[00:15:55] Speaker 04:
We are not defending the decision that's at issue here on the single ground that it doesn't comply with the statutory standard, especially as explicated by the Supreme Court in the Inter-Tribal Council case, and that is the ground on which we are suggesting that the Court could

[00:16:15] Speaker 04:
resolve this case.

[00:16:16] Speaker 04:
You know, in these unusual circumstances where we're not defending the agency decision that's at issue, we're content to rest on our briefs if the court does have questions and prepare to entertain them.

[00:16:29] Speaker 09:
Why do you think the leaks have demonstrated irreparable harm?

[00:16:36] Speaker 09:
You haven't mentioned that hardly in your brief, except that you agreed in the district court.

[00:16:42] Speaker 09:
That's it.

[00:16:43] Speaker 04:
Right, we agree the leagues are conducting voter registration activities contemplated as counsel discussed by the statute and they have affidavits suggesting that they want to use this federal form to register voters and that it's made more difficult to do that and the district court accepted that and said that they had standing for that reason.

[00:17:07] Speaker 04:
and given the nature of registration drives and that every day they're trying to register more people, we thought that that harm would be irreparable unless it was curative.

[00:17:19] Speaker 09:
Has the change actually been made on the, just Kansas for one thing, has the change been made on the website?

[00:17:29] Speaker 04:
The change has been made on the federal form, yes, in all three states.

[00:17:33] Speaker 04:
Yes, Your Honor.

[00:17:34] Speaker 09:
But Alabama and Georgia are not enforcing their requirements?

[00:17:38] Speaker 04:
The record suggests that, yes, so apparently if you disregard the instructions on the form and send in a form that does not include documentary proof of citizenship in those two states, they will still register you to vote according to the district court record.

[00:17:55] Speaker 06:
And the district court record includes representations from who in those states?

[00:18:01] Speaker 04:
I apologize, I don't recall exactly.

[00:18:03] Speaker 04:
The parties didn't, as I remember, dispute that that was the case.

[00:18:07] Speaker 04:
I'm just saying that because I don't want to be suggesting to you that I have separate, I can separately confirm that.

[00:18:13] Speaker 04:
I'm just going based on what the parties seem to understand and the district judge seemed to understand in the district court.

[00:18:22] Speaker 04:
Unless there are further questions.

[00:18:24] Speaker 04:
Thank you.

[00:18:25] Speaker 04:
Thank you, Your Honors.

[00:18:38] Speaker 05:
All right, Council for Intervener, the Kansas Secretary of State.

[00:18:55] Speaker 02:
Thank you, and may it please the Court.

[00:18:57] Speaker 02:
I'm Chris Kobach, representing the State of Kansas Office of the Secretary of State.

[00:19:01] Speaker 02:
With the Court's leave, I'd like to just very quickly hit three factual issues that I think there's no dispute about, that are important to understand and then get into the arguments already made.

[00:19:10] Speaker 02:
Number one, since the creation of the federal form, virtually all of the state-specific instructions have been approved.

[00:19:15] Speaker 02:
and the vast majority of those by the executive director alone, without any action by the commission.

[00:19:20] Speaker 02:
Now, the Supreme Court correctly described this as a, quote, entirely informal, end quote, process.

[00:19:27] Speaker 02:
In the state of Kansas's experience, we would simply send a letter, and then their change would be made without any explanation of why the change was made, why our request was granted.

[00:19:35] Speaker 02:
Other states would send email, although we relied on letters.

[00:19:38] Speaker 02:
And never, prior to Mr. Newby's recent case about which we are talking now, never was any acceptance ever explained.

[00:19:46] Speaker 02:
When the EAC granted a state request to change the instructions, it was just made without any explanation.

[00:19:51] Speaker 02:
Second factual issue, in this recent request, November...

[00:19:56] Speaker 02:
Correctly.

[00:19:57] Speaker 02:
Yeah, that's correct.

[00:19:57] Speaker 02:
Although, yeah, the only other litigation was regarding denials.

[00:20:02] Speaker 02:
In November 2015, Kansas requested the instructions we're talking about now.

[00:20:06] Speaker 02:
There are three significant differences between these instructions and the 2013 request by Kansas in Arizona.

[00:20:13] Speaker 02:
One, the new instructions include a 90-day limit that is part of a new Kansas regulation.

[00:20:17] Speaker 02:
You have 90 days to provide your proof of citizenship.

[00:20:19] Speaker 02:
You can email it in, fax it in, whatever.

[00:20:21] Speaker 06:
There's a reference to a suspension list in connection with that nightmare.

[00:20:29] Speaker 02:
The suspense file is the term of art that our system uses.

[00:20:33] Speaker 02:
It just means that once you've provided your registration form, your registration is held in suspense until you finish it by providing proof of citizenship.

[00:20:41] Speaker 06:
Are the names of the persons who are on the suspense list, is that maintained in a computer file?

[00:20:48] Speaker 02:
Yes, and actually, so we have our statewide voter registration database.

[00:20:53] Speaker 02:
You could be active, which means you've completed your registration, inactive, meaning that you may have moved out of the state.

[00:21:00] Speaker 02:
Sorry, inactive is you haven't voted recently.

[00:21:03] Speaker 02:
We have reason to believe you've moved out of the state, and we're in the process of potentially removing you if we confirm that.

[00:21:09] Speaker 02:
And then suspense could be any number of reasons.

[00:21:12] Speaker 02:
It might be that you're a 17-year-old who hasn't turned 18.

[00:21:14] Speaker 06:
Are the Browns on that list?

[00:21:18] Speaker 02:
The Browns are in a separate category and they are, it's important to note this.

[00:21:22] Speaker 06:
The answer to my question is no.

[00:21:25] Speaker 02:
They are, I believe they are not in the suspense list.

[00:21:30] Speaker 02:
Well, their registration is incomplete, but we have a separate list for this 180 people who used the federal form prior to the change of instructions on February 1st.

[00:21:39] Speaker 06:
Are they receiving 90 day notices?

[00:21:43] Speaker 06:
No, they are being given all of the benefit of, as if the federal form was never changed per our request, and so they are allowed to vote in federal, they're fully registered for federal elections, they cannot vote in... So who has the authority to bind the state of Kansas so that no challenge can be made to the eligibility of the Browns to vote in the federal and state elections?

[00:22:10] Speaker 02:
I'm not sure I understand your question, but... It's very clear.

[00:22:13] Speaker 02:
Who has the authority to bind the state of Kansas?

[00:22:16] Speaker 02:
Yes.

[00:22:16] Speaker 02:
Well, obviously an Article III court would have the authority to bind the state of Kansas.

[00:22:20] Speaker 02:
The EAC has the authority only to

[00:22:23] Speaker 02:
modify the wording of the federal form.

[00:22:25] Speaker 02:
Who in the state of Kansas has that authority?

[00:22:28] Speaker 02:
The Kansas law is applied by the Secretary of State's office and by the counties, and so the counties are the ones who go in and change the status of any individual voter.

[00:22:37] Speaker 02:
The Secretary of State determines statewide voter policies and registrations, both rules and statute, if approved by the legislature.

[00:22:45] Speaker 06:
Is it your representation that if the Browns vote

[00:22:50] Speaker 06:
in whatever elections, federal and state, that there can be no challenge to their eligibility?

[00:23:03] Speaker 02:
Under state law, we treat them as eligible to vote in federal elections.

[00:23:06] Speaker 06:
So Kansas would concede in any litigation that the Browns are

[00:23:12] Speaker 06:
fully eligible to vote?

[00:23:14] Speaker 02:
In federal elections only.

[00:23:15] Speaker 02:
The Browns, it's important, this, this court's decision will have no effect on the Browns.

[00:23:18] Speaker 02:
It's very important to note they registered prior to February 1st.

[00:23:22] Speaker 06:
Well, I think the record is unclear.

[00:23:24] Speaker 06:
All right, that's why I'm trying.

[00:23:26] Speaker 02:
In their reply, if you're talking about what they asserted in their reply, that is false.

[00:23:29] Speaker 02:
They asserted that the Browns are not on any registration role.

[00:23:32] Speaker 02:
What they did is they made a public request for the list of all active voters.

[00:23:36] Speaker 02:
The Browns are in the special role of 180-some people who used the federal form prior to it being changed in the federal first.

[00:23:43] Speaker 02:
So that one, if you remember the public, you walk into your county clerk's office, you're not going to get that role.

[00:23:47] Speaker 02:
But they did vote, and they voted in the... So the change in the federal form was not retroactive.

[00:23:54] Speaker 09:
Correct, correct.

[00:23:55] Speaker 09:
We are treating those people, it's not correct.

[00:23:58] Speaker 09:
And is it correct that the federal form really only deals with people who have not been previously registered?

[00:24:06] Speaker 02:
As a practical matter, yes.

[00:24:08] Speaker 02:
If you're already registered, we had a grandfather clause so you didn't have to prove your citizenship.

[00:24:14] Speaker 02:
If I might just quickly go to a couple more factual matters that may help the court.

[00:24:17] Speaker 06:
So this new request... So the litigation in state court

[00:24:23] Speaker 06:
involving the Browns?

[00:24:25] Speaker 02:
Yes.

[00:24:25] Speaker 06:
Has Kansas conceded error?

[00:24:28] Speaker 02:
No, not at all.

[00:24:29] Speaker 02:
The question in district court, in state district court, is this.

[00:24:32] Speaker 02:
Does the state have the authority to bifurcate the election and say this voter can vote in federal elections only and this voter can't?

[00:24:38] Speaker 06:
E.g.

[00:24:39] Speaker 06:
what you have described as to the Browns.

[00:24:43] Speaker 02:
Correct.

[00:24:43] Speaker 02:
And there's only been a TRO judgment.

[00:24:47] Speaker 02:
We have a preliminary injunction hearing on September 21st.

[00:24:50] Speaker 02:
We're a long way from summary judgment.

[00:24:52] Speaker 02:
And so the decision with respect to the Browns is, do we have the authority to say you can vote in federal elections only?

[00:25:01] Speaker 02:
The court said no on TRO, that the Secretary of State didn't have authority under Kansas statute, that the statute wasn't specific enough.

[00:25:08] Speaker 02:
We argue that no, the statute does give me the authority to

[00:25:12] Speaker 02:
take any steps necessary to comply with the NVRA.

[00:25:15] Speaker 02:
And because this is an NVRA issue, but no, that decision is far from, we've only had a TRO judgment at that point, we have a hearing on September 21st.

[00:25:23] Speaker 02:
Let's just jump to irreparable harm.

[00:25:25] Speaker 02:
The leagues have failed to establish, and contrary to their reply brief, the wording of the federal form in no way bars the plaintiffs from engaging in First Amendment-protected registration activities.

[00:25:36] Speaker 02:
Their only real-

[00:25:39] Speaker 07:
But the question is whether it need not be a bar, it could be an impediment.

[00:25:45] Speaker 02:
It's not even an impediment, Your Honor.

[00:25:48] Speaker 07:
Doesn't it require the leagues to incur expenses and engage in activities that add to the difficulty of getting

[00:26:02] Speaker 02:
What it does is it forces them to change the content of their educational materials.

[00:26:07] Speaker 02:
The materials say, well, if you use a federal form, this happens.

[00:26:10] Speaker 02:
Now they have to say, if you use a federal form, this happens.

[00:26:12] Speaker 02:
But they are producing materials of about $13,000.

[00:26:14] Speaker 07:
There are cases on the significance of a mere change, but this is a change which clearly adds to the task to be performed to get someone registered.

[00:26:28] Speaker 02:
I think on the contrary, and we put this point in our brief, it simplifies things.

[00:26:32] Speaker 02:
Before the federal form was changed, they had to explain to a confused voter, why does the federal form have a different requirement regarding citizenship than the state form?

[00:26:39] Speaker 02:
Now that the EAC has made the change, federal form and state forms are the same.

[00:26:43] Speaker 02:
It's easier to explain to the voters.

[00:26:45] Speaker 02:
And as Judge Leon noted, the amount of material they produce is the same.

[00:26:49] Speaker 07:
Isn't it, from what you've just said, it seems clear that it makes it more difficult to get voters registered for the federal election.

[00:27:00] Speaker 02:
The proof of citizenship requirement in and of itself adds another step.

[00:27:04] Speaker 02:
We do not concede that it makes it more difficult.

[00:27:06] Speaker 02:
Ninety-four percent of the people who have started the process have completed the process, and many of the ones who haven't have moved out of the state.

[00:27:16] Speaker 02:
people get over a hurdle does not mean that it was not a hurdle.

[00:27:20] Speaker 02:
Well, and then, Your Honor, we have to fall, that's their fallback harm.

[00:27:23] Speaker 02:
So if their first harm is, well, we just changed the wording of our materials.

[00:27:26] Speaker 02:
Now the fallback harm is, well, we're not as successful registering people because we have this proof of citizenship requirement.

[00:27:32] Speaker 02:
Two problems with that.

[00:27:33] Speaker 07:
Another one has to look at degree of success.

[00:27:37] Speaker 07:
I would think that we had an objective thing.

[00:27:38] Speaker 07:
Let's just assume.

[00:27:39] Speaker 02:
It's an additional hurdle.

[00:27:41] Speaker 02:
Let's assume that it's a very big additional hurdle.

[00:27:43] Speaker 02:
Give all the benefit to them.

[00:27:44] Speaker 02:
Still, it is speculative.

[00:27:46] Speaker 02:
And this is what the district court correctly noted.

[00:27:48] Speaker 02:
It is speculative whether somebody is going to fail or succeed based on the change they have in the way they approach these voters and give them information.

[00:27:56] Speaker 02:
And secondly, even if it were not speculative, if it were certain... I mean, you're talking about hundreds of people being

[00:28:07] Speaker 07:
having the registration process facilitated by the leagues and all of them are now required to produce documentary proof of citizenship.

[00:28:18] Speaker 07:
It seems to be hardly speculative to say that it's likely to reduce the quantity of registrations.

[00:28:25] Speaker 02:
It is speculation when you say it is likely, Your Honor, with respect.

[00:28:28] Speaker 02:
I mean, you're saying it's very likely.

[00:28:29] Speaker 07:
It might be.

[00:28:31] Speaker 07:
irreparable harm has never required absolute certainty.

[00:28:35] Speaker 02:
But then let's assume it is absolutely certain.

[00:28:37] Speaker 02:
Then this court would have to disagree with the Sixth Circuit, which says the plaintiffs are organizations and cannot vote.

[00:28:42] Speaker 02:
Instead, they assert the right to vote of individuals not even presently identifiable.

[00:28:46] Speaker 02:
So then they have this problem of their claiming harm to a hypothetical individual who hypothetically is unable to complete the registration process in time.

[00:28:54] Speaker 02:
For irreparable harm purposes, they can't.

[00:28:56] Speaker 07:
They're actually claiming harm to the achievement of their mission

[00:29:01] Speaker 07:
which involves facilitating potential voters actually getting themselves registered.

[00:29:08] Speaker 02:
That they are.

[00:29:08] Speaker 02:
But the Sixth Circuit has ruled, and I think it makes sense, that you can't claim as part of your mission my independent decision or your independent decision to register or not register.

[00:29:18] Speaker 02:
That is a separate decision that they can't say, we as an organization have an interest in making sure that Judge William registers whether he knows he needs to or not.

[00:29:26] Speaker 02:
We're going to persuade him.

[00:29:27] Speaker 07:
I think you're misformulating what the leagues

[00:29:30] Speaker 07:
And then let's go to that final point.

[00:29:39] Speaker 02:
What they, by their own declaration, say is their goal, as Judge Randolph noted, is that you register for both state and federal elections.

[00:29:46] Speaker 02:
And to the extent that they use a federal form that suggests that you need not provide proof of citizenship, they undermine their own goal and these people do not get registered for state elections.

[00:29:56] Speaker 07:
Don't you think they're entitled to make priorities among their goals?

[00:30:02] Speaker 02:
By their own admission, their goal is to register people for both federal and state.

[00:30:06] Speaker 07:
But their declarations also make clear that getting people registered for the federal elections

[00:30:14] Speaker 07:
is an independent goal and it appears at least in this context to be one that they regard as independently important.

[00:30:21] Speaker 02:
I would like to suggest here that the attitude of the attorneys may not reflect the attitude of their clients in a deposition for a related case, the Fish case, and they grouse about this in a footnote in their reply.

[00:30:31] Speaker 02:
the representative of the Kansas legal and voters made very clear that we want them registered.

[00:30:36] Speaker 02:
It is of utmost importance they vote in Kansas elections, not just federal elections.

[00:30:40] Speaker 02:
But let me jump to some important points on the merits.

[00:30:42] Speaker 06:
Well, you're overlooking other declarations indicating the decrease in the number of persons actually registered

[00:30:54] Speaker 06:
So those are not speculative.

[00:30:58] Speaker 06:
Those are facts in this record.

[00:31:01] Speaker 02:
You're talking about in their registration drives, they assert that we didn't register as many people in this drive as we did in last year's drive.

[00:31:08] Speaker 02:
The actual registration tallies for the state of Kansas indicate that we have set an all-time record this past August in the number of people registered prior to a presidential year of primary.

[00:31:17] Speaker 03:
Well, Canada is not the league.

[00:31:20] Speaker 02:
Right, but they're asserting what we think last year's drive was more successful, but of course there are

[00:31:24] Speaker 02:
thousands of reasons why OneDrive may have been more successful, location, time, whether it is simply a far-fetched assertion to say, well, and it was the change in the federal form, which now makes it simpler to explain things to voters.

[00:31:38] Speaker 02:
But let me go to the merits, and this is one thing that hasn't been discussed yet, and I think it is of decisive importance.

[00:31:43] Speaker 02:
The executive director's decision was compelled by federal rule.

[00:31:46] Speaker 02:
The FEC promulgated a rule mandating that the federal form, quote, shall list U.S.

[00:31:52] Speaker 02:
citizenship as a universal eligibility requirement and include a statement that incorporates by reference each state's specific additional eligibility requirements.

[00:32:00] Speaker 06:
But this is not an eligibility requirement.

[00:32:03] Speaker 06:
This is simply a means of demonstrating.

[00:32:06] Speaker 02:
And I anticipated you might ask that.

[00:32:08] Speaker 06:
The same rule has another section.

[00:32:10] Speaker 06:
even focused on that.

[00:32:12] Speaker 02:
Well that maybe, and I apologize, there's two sections of the rule.

[00:32:15] Speaker 02:
We put one in the brief proper and one in the addendum.

[00:32:18] Speaker 02:
Please look on page five of our addendum where you will find 9428.3b 9428.3b of the same rule.

[00:32:26] Speaker 02:
It says the state specific instruction shall contain the following information regarding the state's specific voter eligibility and registration requirements.

[00:32:35] Speaker 02:
So not just eligibility requirements like citizenship or

[00:32:38] Speaker 02:
whatever you, how you want to find those, but registration requirements as well.

[00:32:41] Speaker 02:
That's 9428.3b on page 5 of our addendum.

[00:32:46] Speaker 02:
In both cases, the rule promulgated by the predecessor of the EAC, the FEC, used the word shall, and they used the word shall intentionally.

[00:32:56] Speaker 02:
Now, the appellant leagues, and Mr. Newby, by the way,

[00:33:00] Speaker 02:
His behavior and his decision, and he did articulate a rationale for his decision, which is in the administrative record, both on page one and then his declaration on page 242.

[00:33:08] Speaker 02:
He is perfectly consistent with this rule.

[00:33:11] Speaker 02:
He says the states have changed their law.

[00:33:13] Speaker 02:
I am supposed to make an according change when requested in the state's specific instructions.

[00:33:18] Speaker 06:
Now, the appellant- Consistent with the statute?

[00:33:21] Speaker 02:
Absolutely.

[00:33:22] Speaker 02:
And this is another point- All right.

[00:33:24] Speaker 06:
How can that be when he says the statutory reference is irrelevant and you and your brief make an argument about context and reading and all that sort of thing, but the Commission seems to have been pretty clear about that.

[00:33:40] Speaker 02:
What he was saying, the statute has two parts and that's something that the leagues actually physically omit in their brief.

[00:33:48] Speaker 02:
They continue to put an ellipsis about the part they don't want you to read.

[00:33:51] Speaker 02:
and the statute says, right after the word necessary, such information as is necessary to enable the appropriate state election official, one, to assess the eligibility of the applicant, and here's the part they omit, and two, to administer voter registration and other parts of the election process.

[00:34:08] Speaker 06:
I know, and you want us to read and as or.

[00:34:14] Speaker 02:
I think that's the most reasonable reading of it, because there are some things... Congress chose the word and.

[00:34:20] Speaker 02:
The reason it's most reasonable is there's lots of information in the state's specific instructions that include things like, here's the address of the office.

[00:34:26] Speaker 02:
Well, the address of the office doesn't assess eligibility.

[00:34:30] Speaker 02:
Here are the dates by which you need to do things.

[00:34:33] Speaker 02:
Those don't assess eligibility of the applicant.

[00:34:35] Speaker 02:
Those are things that are

[00:34:36] Speaker 02:
needed to administer the voter registration process.

[00:34:39] Speaker 02:
So it has to be read as an or because there's so much that doesn't go to the eligibility of the applicant that is included in the state's specific instructions.

[00:34:48] Speaker 02:
And so the statutory interpretation that he offers when he says, well, it's irrelevant whether I think proof of citizenship is the best way and is necessary in a subjective way to assess eligibility in terms of citizenship.

[00:35:01] Speaker 02:
What is relevant is the second part of that statute, again this is 20508B1, to administer voter registration in other parts of the election process.

[00:35:12] Speaker 09:
Can you take me through, I was late in getting to your addendum, but I'm looking at it now, and just briefly give me the argument that you just made from the

[00:35:28] Speaker 09:
Yes.

[00:35:29] Speaker 09:
You said addendum page 5.

[00:35:31] Speaker 02:
Page 5, yeah.

[00:35:32] Speaker 02:
So there... Is it 5 or 6?

[00:35:34] Speaker 02:
It might be 6, Your Honor.

[00:35:35] Speaker 02:
It's 20508.

[00:35:40] Speaker 02:
B1 is the first one that we quote, and then the other part of it is 20508C.

[00:35:47] Speaker 09:
B is on page 6, right?

[00:35:52] Speaker 02:
Let me just check if that co-counsel has got it.

[00:36:05] Speaker 02:
It might be 0.4.

[00:36:06] Speaker 02:
We're going to check the addendum real quick.

[00:36:11] Speaker 02:
But the language that you'll find that I'm referring to is... Well, we have the statute on page six.

[00:36:18] Speaker 09:
On page five are the regulations that you say the Federal Election Commission initially promulgated, right?

[00:36:27] Speaker 02:
Yes.

[00:36:28] Speaker 09:
Okay.

[00:36:28] Speaker 09:
So what is it on?

[00:36:29] Speaker 09:
Is it 9428.4 that you're referring to?

[00:36:33] Speaker 02:
Um, yeah, it's, um, addendum page six, you are correct, is page six.

[00:36:41] Speaker 02:
And, um, it's right at the bottom of the, two-thirds down the page.

[00:36:46] Speaker 02:
Specify each eligibility requirement.

[00:36:49] Speaker 02:
Show list U.S.

[00:36:49] Speaker 02:
citizenship as eligibility requirement and include a statement that incorporates by reference each additional eligibility requirement.

[00:36:54] Speaker 02:
And then that's the first one.

[00:36:55] Speaker 02:
And then the second one is 11 CFR, C-F-R 9428.

[00:37:03] Speaker 02:
0.3B, which is found... 0.3B, okay.

[00:37:11] Speaker 02:
It is found on page 5.

[00:37:16] Speaker 02:
Oh, here we go.

[00:37:18] Speaker 02:
It's written on page 5 in the middle of the page, paragraph B. The state-specific instructions shall contain the following information for each state arranged by state.

[00:37:28] Speaker 02:
Address, dot, dot, dot, information regarding the state-specific voter eligibility and registration requirements.

[00:37:36] Speaker 02:
So that's found on page 5 of our addendum right in the middle of the page.

[00:37:38] Speaker 09:
And I... Well, how does that answer Judge Rogers' question?

[00:37:42] Speaker 09:
about whether proof of citizenship, documentary proof of citizenship is an eligibility requirement or just simply a means of proving eligibility.

[00:37:53] Speaker 02:
Because that second language says both, both the eligibility requirements and the mere registration requirements.

[00:38:02] Speaker 02:
I think she's drawing a distinction between maybe citizenship is just the eligibility requirement and that's enough.

[00:38:07] Speaker 02:
but the registration requirement is proof of citizenship.

[00:38:10] Speaker 09:
So in other words, specific voter eligibility and registration requirement, and then the proof of citizenship is a registration requirement if it's not an eligibility requirement.

[00:38:21] Speaker 02:
Right.

[00:38:21] Speaker 02:
We think it's both, but I think everybody concedes it's a registration requirement.

[00:38:25] Speaker 09:
This is probably not the right question to ask you, but if you know, clear something up for me.

[00:38:31] Speaker 09:
When did the commission reduce to three members as opposed to four?

[00:38:36] Speaker 02:
It still is four members.

[00:38:37] Speaker 02:
The Congress just hasn't finished confirming the empty spots on the commission.

[00:38:43] Speaker 02:
But it makes things difficult because the statute requires three votes to do anything.

[00:38:48] Speaker 02:
And so you have a three-member commission that has to be unanimous to do anything.

[00:38:52] Speaker 06:
So what is the record with regard to the Commission's reaction to Mr. Newby's decision?

[00:38:59] Speaker 02:
There has been no reaction.

[00:39:01] Speaker 06:
Well, I thought one member of the Commission said we need to vote on this.

[00:39:05] Speaker 06:
So he didn't have three votes, is that correct?

[00:39:08] Speaker 02:
Right, right.

[00:39:08] Speaker 02:
He didn't have three votes.

[00:39:09] Speaker 02:
And that's a great question because, look, the Commission at any time, could Sue Esponte reverse his decision on their own?

[00:39:16] Speaker 09:
Again, I'm asking the wrong person.

[00:39:20] Speaker 09:
Mr. Tenney, I hope you pay attention to this question because I'm going to ask you in rebuttal.

[00:39:26] Speaker 09:
Mr. Newby is a defendant in this case, and Mr. Newby is the one who made this decision.

[00:39:31] Speaker 09:
How can the Department of Justice represent a commission opinion if the commission acts only with three votes?

[00:39:44] Speaker 09:
the uh... the commission act here at all and i think the plaintiffs have been playing a little fast and loose with their words of unit you know if we did this or that commission wondering about the department of justice's representation of the of the commission that week is required when it makes a policy decision to have three votes if the commission believed that unanimously believed that mister newbie violated his

[00:40:13] Speaker 09:
role in this case, which is what the Department of Justice is representing to us.

[00:40:19] Speaker 09:
The case shouldn't be here.

[00:40:21] Speaker 09:
The commission tomorrow could render a decision and just say, that's wrong.

[00:40:27] Speaker 09:
These are executive director.

[00:40:28] Speaker 09:
We're responsible for supervising.

[00:40:31] Speaker 02:
That's exactly right.

[00:40:32] Speaker 09:
But if the commission can't do that because it only has two members believing that or one member believing that, I don't understand how the Department of Justice

[00:40:41] Speaker 09:
can stand up here and represent the commission's position to us.

[00:40:46] Speaker 02:
That's exactly right.

[00:40:46] Speaker 02:
And that's what I wanted to end on.

[00:40:48] Speaker 02:
There is no policy.

[00:40:49] Speaker 02:
There has never been a vote of three commissioners saying it is our policy to reject proof of citizenship.

[00:40:55] Speaker 02:
Never.

[00:40:55] Speaker 06:
Well, in fairness, if you go back to the beginning, that's not correct.

[00:41:02] Speaker 02:
Which beginning, Your Honor?

[00:41:02] Speaker 06:
205, 206.

[00:41:06] Speaker 06:
We even have the executive director in 2012.

[00:41:10] Speaker 06:
after when there were no commissioners.

[00:41:17] Speaker 02:
But in 05, and this is where their brief is deceptive.

[00:41:19] Speaker 06:
My point is that Mr. Newby's explanation of his action is this is not a change in policy.

[00:41:29] Speaker 06:
This is just

[00:41:31] Speaker 06:
I'm looking for, what did he call it, correctness and proficiency, something like that.

[00:41:37] Speaker 06:
So he didn't make any reference to the statute.

[00:41:40] Speaker 06:
He didn't make any reference to what the Commission has previously said.

[00:41:44] Speaker 06:
This is his interpretation.

[00:41:46] Speaker 02:
It's so important that I think you understand, but the brief was a little, I don't know if it was intentional or not, deceptive on this.

[00:41:52] Speaker 02:
Let's not talk about deception.

[00:41:57] Speaker 02:
The commission did not unanimously, that's their word, did not unanimously reject Arizona's decision.

[00:42:03] Speaker 02:
The executive director unilaterally rejected it.

[00:42:07] Speaker 02:
There was no commission vote and then Arizona appealed to the full commission and the full commission deadlocked 2-2.

[00:42:14] Speaker 02:
So I think the word unanimously is deceptive whether it's intentional or not and I think that is a fair statement.

[00:42:21] Speaker 02:
There has never been a vote by three commissioners ever saying that proof of citizenship is a criterion or an eligibility requirement that we reject.

[00:42:30] Speaker 02:
Never.

[00:42:31] Speaker 02:
And there was no commission vote in 2013-14 because there were no commissioners.

[00:42:35] Speaker 02:
So that's why all of their discussion of this reversal of policy makes no sense because the commission never had three members adopting such a policy.

[00:42:44] Speaker 06:
And what about all the legislative history

[00:42:49] Speaker 06:
Congress's rejection, the FEC's rejection, all of that the executive director is free to ignore?

[00:42:58] Speaker 02:
The legislative history, and we explain this to some extent in our brief, Senator Alan Simpson offered an interpretive amendment that said we should not interpret this law to prevent any state from acquiring proof of citizenship.

[00:43:13] Speaker 02:
Then the principal sponsor of the NVRA in the Senate said, that is unnecessary because the language cannot be interpreted to bar a state from providing proof of citizenship.

[00:43:25] Speaker 02:
And so the subsequent committee... Is that a particularly accurate counsel?

[00:43:30] Speaker 02:
Wendell Ford is the person I'm talking about.

[00:43:32] Speaker 02:
Wendell Ford is the one who said,

[00:43:33] Speaker 02:
It would be redundant, I think was the word he used, because the statute cannot be read.

[00:43:38] Speaker 06:
I'm looking at a conference committee report.

[00:43:41] Speaker 06:
In any event, those words speak for themselves.

[00:43:44] Speaker 06:
Do you have anything else to argue?

[00:43:45] Speaker 02:
Your Honor, finally, the last point I just wanted to briefly touch on was the constitutional doubt.

[00:43:54] Speaker 02:
The ITCA decision says very clearly that not only can we avoid constitutional doubt by just sending it to the EAC with the expectation that the EAC would not put an impediment to enforcing the registration requirement of citizenship, and that's what this is.

[00:44:09] Speaker 02:
This is an enforcement mechanism to citizenship.

[00:44:12] Speaker 02:
but also by extension where that was the words that the court used the EAC should also accept the request and not create an impediment to enforcing the registration requirement because if they did create an impediment that would raise constitutional doubt by violating article one section two because the state would be unable to enforce their citizenship qualification as the EC fit and you would have separate qualifications for state and federal elections which is the situation that resulted prior to the February 1st change so

[00:44:40] Speaker 02:
You add all of these factors together, the regulation compelling Newby to do so, the very permissive standard that applies in cases like this, the statute with the second half, the reason why something might be necessary, and the ITCA decision, an expectation that the EAC would the second time around say yes, Mr. Newby's decision can be defended on multiple grounds.

[00:45:01] Speaker 06:
And one last question for me.

[00:45:04] Speaker 06:
How many people

[00:45:07] Speaker 06:
are on this suspension list in Kansas, including the special category that you say the Browns are in.

[00:45:15] Speaker 02:
Right, the special category of people who use the federal form prior to the change in the federal form.

[00:45:20] Speaker 06:
How many people are in that category?

[00:45:21] Speaker 02:
That's, I believe, 181 or 182.

[00:45:23] Speaker 06:
How many people are in the suspension?

[00:45:26] Speaker 02:
The overall suspension list is people who are

[00:45:29] Speaker 02:
whose registrations haven't been completed and that list changes every day because people complete them every day.

[00:45:34] Speaker 02:
It's approximately 17,000 and it's important to note.

[00:45:38] Speaker 06:
Where can I find that in the record somewhere?

[00:45:45] Speaker 02:
I don't think it's in the record because it changes every day.

[00:45:49] Speaker 02:
If you look at the declarations of Mr.

[00:45:51] Speaker 02:
Uh, Caskey, from our side.

[00:45:52] Speaker 06:
Money has gone from, what was it, 16,000 up to 25,000, and now you're representing today it's 17,000.

[00:46:00] Speaker 02:
It's about 17,000, yeah.

[00:46:01] Speaker 06:
All these people are leaving the state of Kansas.

[00:46:03] Speaker 02:
Well, no, it's, they, as soon as you provide your proof of citizenship by texting it in or emailing it in, you come off the list.

[00:46:09] Speaker 02:
You have completed your registration, you are no longer in suspense.

[00:46:12] Speaker 02:
But if your brother comes in today and registers the vote but doesn't provide proof of citizenship, he goes on board.

[00:46:18] Speaker 06:
Are you making representations about what happened to these people that simply are not in the record?

[00:46:23] Speaker 02:
The ones that are not in the special category of 181, they are... No, I'm talking about what you represent today is 17,000.

[00:46:30] Speaker 02:
You'll see a Caskey exhibit from our office and he gave the number on the date of that declaration.

[00:46:38] Speaker 02:
But we don't have to, if you wish, we can certainly update the court with numbers, the most recent number, even today's number, if you wish.

[00:46:45] Speaker 06:
It's hard to know what these numbers represent.

[00:46:47] Speaker 02:
They just represent the people that are in that flux.

[00:46:49] Speaker 02:
They come in, you register, you have it.

[00:46:52] Speaker 02:
Those are people who have filled out a card but haven't yet provided proof of citizenship.

[00:46:56] Speaker 02:
They've got 90 days to do it and the number

[00:46:59] Speaker 02:
changes every day.

[00:47:01] Speaker 02:
If you don't have any of the documents, you just request an informal hearing of the state election board.

[00:47:15] Speaker 02:
And in that hearing, you can provide whatever you want.

[00:47:17] Speaker 02:
And there have been four of them so far, and in all four cases, the citizenship has been approved.

[00:47:21] Speaker 02:
People have provided family Bibles that have the names of their birth on it, school records.

[00:47:26] Speaker 02:
There are usually extraordinary cases where somebody was in foster care and their birth certificate was in a fire, and they can't get the, you know, for whatever reason, they can't find the documents.

[00:47:35] Speaker 02:
But in every case, they provide affidavit from your brother saying... Just by a telephone call.

[00:47:40] Speaker 02:
Just by a telephone call.

[00:47:43] Speaker 06:
So how big is this office?

[00:47:46] Speaker 02:
The Secretary of State's office?

[00:47:47] Speaker 06:
You're saying I can just make a telephone?

[00:47:49] Speaker 02:
Oh, you call the Secretary of State's office.

[00:47:51] Speaker 02:
The Secretary of State's office then convenes a meeting of these three people, of which I am one, and usually the meetings are done telephonically.

[00:47:59] Speaker 02:
You send in, you fax in whatever you want.

[00:48:02] Speaker 06:
of these before the next election.

[00:48:05] Speaker 06:
I just want to understand what's going on here.

[00:48:07] Speaker 06:
This is not what a number of states have done where they have provided an alternative to meeting this method of proof.

[00:48:19] Speaker 06:
Kansas is still requiring

[00:48:21] Speaker 02:
No, we provide an alternative, and the alternative is you give us whatever you want, a declaration from your aunt saying you were born on a certain day and born in the United States.

[00:48:31] Speaker 02:
That's enough.

[00:48:31] Speaker 02:
So the alternative, and it's important to note, the vast majority of the 17,000, and I'm talking overwhelming majority, will go on and come off within a 30-day period.

[00:48:41] Speaker 02:
They're just there temporarily until they find their passport or their birth certificate and fax it in.

[00:48:48] Speaker 06:
If they have them.

[00:48:49] Speaker 02:
And if they don't have them, again,

[00:48:51] Speaker 02:
they can use that alternative mechanism.

[00:48:53] Speaker 02:
But at this point, bear in mind, nobody has challenged the constitutionality of our law, the proof of citizenship requirement.

[00:48:58] Speaker 06:
I understand, but Congress has passed the statute that says you mail in this form and you can attest, and if the state wants to challenge it, they can prosecute you.

[00:49:06] Speaker 06:
And that's what states do, and indeed, that's what the executive director pointed to, it's what the Tenth Circuit pointed to.

[00:49:13] Speaker 06:
You have all these other means as well.

[00:49:15] Speaker 02:
Right, and as we pointed out in our letter to the EAC requesting this, that all of those other means have failed in Kansas.

[00:49:22] Speaker 02:
The reason you can't prosecute someone who's a non-citizen is because by the time you learn that they're not citizens, they're on the rolls, the statute of limitations has run.

[00:49:30] Speaker 06:
Your representation today that they have failed, I don't know how you can make that representation.

[00:49:35] Speaker 06:
We don't know how many cases were brought

[00:49:38] Speaker 06:
We don't know how many cases could have been brought.

[00:49:41] Speaker 06:
We don't know what happened to those cases.

[00:49:43] Speaker 06:
So to represent that when you have it on the books and other means have worked according to the 10th Circuit.

[00:49:50] Speaker 06:
according to the executive director of the commission.

[00:49:55] Speaker 02:
The 10th Circuit didn't say that the other five means have worked.

[00:49:58] Speaker 02:
They said the state hasn't proven that they haven't.

[00:50:00] Speaker 02:
And on the record you will find the cases of 18 aliens in one county alone of our 105 counties in Central County.

[00:50:06] Speaker 06:
But Mr. Newby didn't rely on that at all.

[00:50:09] Speaker 02:
He did mention it either in his declaration or in his memorandum.

[00:50:12] Speaker 06:
In his decisions and his quote contemporaneous.

[00:50:16] Speaker 02:
He talked about the new evidence that Kansas has provided.

[00:50:20] Speaker 09:
I can't remember, but the Southern Circuit recently came down with a procurium opinion dealing with a change in Wisconsin law.

[00:50:29] Speaker 09:
Are you familiar with that case?

[00:50:30] Speaker 09:
It was like, not a week ago, I think it was.

[00:50:34] Speaker 02:
I confess I haven't read the decision, but I believe that's their photo ID law, which is a different challenge.

[00:50:40] Speaker 02:
It was not a proof of citizenship.

[00:50:46] Speaker 02:
If there are no further questions, thank you.

[00:50:54] Speaker 06:
All right.

[00:50:57] Speaker 06:
Let's see.

[00:50:59] Speaker 06:
Intervener Public Interest Legal Foundation.

[00:51:03] Speaker 06:
Good morning.

[00:51:04] Speaker 01:
Good morning.

[00:51:05] Speaker 01:
May it please the court.

[00:51:06] Speaker 01:
My name is Kaylin Phillips, and I'm here on behalf of Appellee Intervener Public Interest Legal Foundation.

[00:51:12] Speaker 01:
Non-citizen voting is a serious problem in the United States, a problem that Kansas, Georgia, and Alabama have done something about.

[00:51:20] Speaker 06:
And your proof of this is what

[00:51:23] Speaker 01:
We actually provided, on the record, we provided several key pieces of evidence, including 13 forms from one county in Texas, where the applicants either checked no to the Citizenship Checkbox or left it blank, or checked yes and no, and their registration was still processed.

[00:51:46] Speaker 06:
And the courts have viewed this as a minimal showing.

[00:51:53] Speaker 06:
at least the courts in these states.

[00:51:56] Speaker 01:
Have you the proof of citizenship?

[00:51:58] Speaker 01:
Yeah.

[00:51:58] Speaker 01:
Attestations?

[00:52:00] Speaker 06:
I mean 13, 18.

[00:52:04] Speaker 01:
Well, I assert that even one evidence of non-citizen voting is sufficient, but these are only mere examples that we've provided.

[00:52:13] Speaker 06:
We've also provided— Well, you made this broad statement about voter fraud.

[00:52:18] Speaker 06:
Yes.

[00:52:19] Speaker 06:
Major concern in these three states, and I just wondered what the evidence was, that's all.

[00:52:23] Speaker 01:
Sure, sure, yes.

[00:52:24] Speaker 06:
Since there have been all these books and articles written saying it isn't.

[00:52:30] Speaker 06:
In any event, that's your organization's position.

[00:52:33] Speaker 01:
And your organization is saying your mission is being inhibited because... Our mission is the promotion of election integrity and therefore non-citizen voting is directly contrary to our mission.

[00:52:47] Speaker 06:
So one voter fraud case is sufficient in your view to establish an inhibition to your

[00:53:00] Speaker 01:
Well, that's not even where we are.

[00:53:02] Speaker 01:
Kansas alone provided 18.

[00:53:03] Speaker 06:
How about that question, answering that question?

[00:53:06] Speaker 01:
Yes, I would say yes.

[00:53:07] Speaker 01:
I would say yes.

[00:53:08] Speaker 01:
I said this is a very, and I submit that this is a very serious problem with more than one example.

[00:53:13] Speaker 06:
So from the league's point of view, taking that logic, the failure to register one voter is an impediment to the establishment of their mission.

[00:53:28] Speaker 01:
I think that that goes more to standing about you.

[00:53:32] Speaker 06:
I asked you the question about how does this interfere with your mission and you said one.

[00:53:37] Speaker 06:
voter fraud was enough.

[00:53:39] Speaker 01:
Certainly, certainly.

[00:53:40] Speaker 01:
And I would let them speak to their their mission, but that's what they've submitted to the court, that that is their their goal is to register voters.

[00:53:47] Speaker 01:
And our submission is that their goals are not impeded by what the Election Assistance Commission has done.

[00:53:54] Speaker 01:
In fact, they are facilitated because for in Kansas, for example, the federal form now reflects accurately the state qualifications for voting.

[00:54:03] Speaker 01:
But one

[00:54:05] Speaker 06:
Let me ask, what happens in Alabama and Georgia?

[00:54:08] Speaker 06:
I'm just not clear.

[00:54:10] Speaker 06:
I go to register to vote, and I'm told, well, Alabama's not enforcing this documentary requirement now.

[00:54:20] Speaker 06:
So we're going to register you.

[00:54:24] Speaker 06:
Has the state legislature said that?

[00:54:28] Speaker 06:
Has the attorney general said that?

[00:54:30] Speaker 06:
Has the secretary of state said that?

[00:54:32] Speaker 06:
Because what's to stop somebody from challenging my vote after the election because I didn't

[00:54:40] Speaker 06:
comply with the state requirements that are listed as part of the federal form.

[00:54:47] Speaker 01:
Certainly, and there's certainly nothing on the record that says that any voter has been challenged for that reason, for failure to have.

[00:54:52] Speaker 06:
Well, we haven't had the election yet.

[00:54:54] Speaker 01:
It's true, but we have had primary elections since the addition of the state's assistant.

[00:54:59] Speaker 06:
I'm just not clear what the status is in those two states.

[00:55:03] Speaker 06:
I mean, the representation is those states aren't enforcing these requirements.

[00:55:07] Speaker 06:
What does that mean?

[00:55:08] Speaker 01:
you know and who's making those representations you're you're concerned about election integrity yes yes and that your point goes to the broader picture the tree that i think has been lost in the forest here which is that the district court is hearing a motion on summary judgment on monday this case has been fully briefed uh... more evidence have has been provided to the district court that has been provided here and under this circuit's law

[00:55:37] Speaker 01:
It is prudent for this court, even if you find that there's irreparable harm, which we submit there's not, even if you find that there is the proper course of action, the prudent course of action is to send it back down to the district court.

[00:55:49] Speaker 01:
The district court did not address any of the other factors, including likelihood of success.

[00:55:55] Speaker 01:
So therefore, I think that's something that's been missing here, that really the only inquiry here is irreparable harm.

[00:56:01] Speaker 01:
And more than that, there are those factual questions about enforcement.

[00:56:05] Speaker 01:
The district court found that the law was not being enforced in Alabama and Georgia, and therefore, there was no irreparable harm.

[00:56:13] Speaker 01:
And then as to Kansas, found that the state law has been in effect since 2013.

[00:56:18] Speaker 01:
So therefore, it simplifies the process for the leagues, because now, in one step, they can register voters for both state and federal.

[00:56:26] Speaker 09:
Are you suggesting that if the district court renders a decision, let's say on Monday after the hearing, denying summary judgment or are there cross motions, I guess?

[00:56:39] Speaker 09:
There are.

[00:56:40] Speaker 09:
Or granting summary judgment for you as intervener in Kansas, that this case becomes moot?

[00:56:45] Speaker 01:
I am.

[00:56:46] Speaker 09:
Yeah, because where we are now is

[00:56:51] Speaker 09:
Preliminary injunction means preliminary to the final decision of the district court.

[00:56:57] Speaker 09:
Yes.

[00:56:57] Speaker 09:
And if there is a final decision of the district court, then there's nothing preliminary left to decide.

[00:57:03] Speaker 01:
Correct.

[00:57:04] Speaker 01:
Yes.

[00:57:04] Speaker 01:
And the fact that that case has now been expedited also with briefing is complete argument in this very building in three days, then it is even more prudent for this court not to address those issues that the district court will be addressing.

[00:57:21] Speaker 01:
I see that my time is up.

[00:57:23] Speaker 01:
Thank you.

[00:57:29] Speaker 06:
All right.

[00:57:30] Speaker 06:
Councilor Pelham.

[00:57:32] Speaker 08:
Hi, thank you.

[00:57:34] Speaker 08:
So let me just take a few points here in no particular order.

[00:57:41] Speaker 08:
One, the ITCA case clearly held that there has to be a finding of necessity within the meaning of the statute.

[00:57:50] Speaker 08:
the Secretary's reliance on a regulation that he would read as essentially contradicting the statute and also ignoring it.

[00:57:59] Speaker 08:
You can't get through the back door where he couldn't get through the front.

[00:58:03] Speaker 08:
That's really what that is an attempt at.

[00:58:05] Speaker 08:
Nobody's interpreted that regulation, not even Mr. Newby, the way Mr. Kovacs suggested it, and we submit it would be a violation of the NVRA and the Supreme Court's ITCA case to read it that way.

[00:58:17] Speaker 08:
I don't have anything else to say on that subject.

[00:58:21] Speaker 08:
With respect to this notion that there's no policy, that we're policies actually being misused here,

[00:58:28] Speaker 08:
The point is there is a long-standing precedent by, as we've said, Congress and the regulatory agencies that have had authority over this to reject documentary proof.

[00:58:38] Speaker 08:
And I wanted to address the point you raised, which is this two-to-one thing, why can't this commission just decide?

[00:58:43] Speaker 08:
The issue is, as Justice Scalia recognized in the ITCA case, the fact that the – this isn't a question about overruling the executive director.

[00:58:56] Speaker 08:
He didn't have authority to begin with.

[00:58:58] Speaker 08:
Okay.

[00:58:59] Speaker 08:
That's the premise.

[00:59:01] Speaker 08:
So the way to think of it is you have to get three votes to effectively abandon what he did.

[00:59:08] Speaker 08:
That's not the law, and Justice Scalia made it pretty clear that what happens here is if you don't get three votes, the result is no action is taken.

[00:59:16] Speaker 08:
It's not that no action is taken on what the executive director did.

[00:59:19] Speaker 08:
It's no action is taken on what was proposed by the state.

[00:59:25] Speaker 08:
So it's not as if, I can't explain why the EAC hasn't addressed this.

[00:59:30] Speaker 09:
My point was the Department of Justice has taken a position in this court that Mr. Newby acted unlawfully.

[00:59:37] Speaker 09:
Yes.

[00:59:37] Speaker 09:
Right?

[00:59:38] Speaker 09:
Yes.

[00:59:39] Speaker 09:
They're making that representation on behalf of the commission and yet you're making the argument the commission can't make a decision unless it's by three votes.

[00:59:49] Speaker 09:
My point was, well, if the commission made a decision that the Department of Justice is correct and allowed them to file this brief, why can't the commission just simply issue an order to that effect and end this case?

[01:00:03] Speaker 09:
Kansas can bring it up that they won or not?

[01:00:06] Speaker 08:
Yeah, I mean, look, I can't explain that.

[01:00:08] Speaker 08:
I know you can't answer.

[01:00:09] Speaker 08:
Yeah, I can't answer that.

[01:00:09] Speaker 08:
I wish I could.

[01:00:10] Speaker 08:
It would make all of our lives easier.

[01:00:12] Speaker 08:
That was my question.

[01:00:13] Speaker 08:
I understand.

[01:00:14] Speaker 08:
I understand.

[01:00:15] Speaker 06:
But it's not an unfamiliar problem with these election commissions.

[01:00:19] Speaker 08:
No, correct.

[01:00:20] Speaker 08:
That's right.

[01:00:22] Speaker 08:
And they're intended to be this way.

[01:00:23] Speaker 08:
It's intended for this to be.

[01:00:25] Speaker 08:
So let me talk about a couple of other topics.

[01:00:28] Speaker 08:
One, I wanted to give you the site, a judge that I promised, which is the 2014 memorandum decision, page 44, footnote 26.

[01:00:38] Speaker 08:
where we raise this actually as part of that process.

[01:00:43] Speaker 08:
And what they say is the EAC will consider the issues that we've raised.

[01:00:46] Speaker 08:
After consulting with Louisiana officials, the commission will consider whether there are necessary and appropriate modifications in item six of the state-specific instructions for Louisiana on the federal form to clarify any lingering confusion.

[01:00:57] Speaker 08:
and to ensure the instructions in full compliance with requirements of Hava relating to federal elections.

[01:01:01] Speaker 09:
It sounds like they express doubt about the validity of the Louisiana decision.

[01:01:07] Speaker 08:
That's how I read it, but I invite you to read it yourself and form your own judgment.

[01:01:12] Speaker 08:
The timing, this notion that the judges try to get out ahead of you below by setting forth a summary judgment schedule, we have elections coming up, we have deadlines a little over a month, we have no guarantee

[01:01:26] Speaker 08:
of when the court will rule or what he will rule.

[01:01:29] Speaker 08:
As I pointed out, there is authority in this circuit, which says at this point, we have an administrative record.

[01:01:36] Speaker 08:
It's closed.

[01:01:37] Speaker 08:
It is what it is.

[01:01:38] Speaker 08:
And this court has the ability now to decide this and to vacate.

[01:01:42] Speaker 08:
We don't have time, unfortunately, to go back.

[01:01:45] Speaker 08:
We brought this case early.

[01:01:46] Speaker 08:
We brought it as a PI.

[01:01:48] Speaker 08:
And unfortunately, the court delayed in responding.

[01:01:50] Speaker 08:
And he may have had good reasons to delay.

[01:01:52] Speaker 08:
But the bottom line is we didn't get an opinion until we wrote and asked him for one.

[01:01:57] Speaker 08:
And we are now finding ourselves on the eve of an election and we really need to have this resolved and sending it back to the court and sending it will just be right back here when this court already has the power to decide this last point I want to make.

[01:02:11] Speaker 08:
You mentioned this, you mentioned that this process, all this is a phone call to the Secretary of State.

[01:02:17] Speaker 08:
I didn't mention that.

[01:02:18] Speaker 08:
Oh, okay, okay.

[01:02:19] Speaker 08:
I want to address that point.

[01:02:19] Speaker 08:
It seems like... I asked the question, how did it go about?

[01:02:23] Speaker 08:
That's a very burdensome approach, right?

[01:02:26] Speaker 08:
When we do a voter registration drive, we can't just have him on speed dial and have a conference call.

[01:02:31] Speaker 08:
He's only done four of these things in three years, tried to get a Secretary of State on the phone in the middle of a voter registration drive to do this.

[01:02:38] Speaker 08:
And at the end of the day, the notion that you can do that by phone, I assume it's under oath, I don't know if it's under oath, that's exactly what the federal forum does.

[01:02:45] Speaker 08:
It has someone prescribe under oath that they are a citizen.

[01:02:49] Speaker 08:
And more importantly, while you may agree, we all may agree or disagree, whatever, about the validity of these laws, it's not an issue.

[01:02:56] Speaker 08:
The bottom line is Congress has spoken and the agency that is charged with addressing these issues has consistently rejected it.

[01:03:06] Speaker 08:
The notion that there isn't a policy, I want to focus on one thing because the council suggested I misrepresented something.

[01:03:13] Speaker 08:
I did not.

[01:03:15] Speaker 08:
This commission, in its early days, did everything by consensus because that was the spirit in which this was passed, this create was created.

[01:03:23] Speaker 08:
It was a bipartisan commission.

[01:03:25] Speaker 08:
HAVA was passed with enormous bipartisan support following the 2000 elections.

[01:03:31] Speaker 08:
And they had a practice, which you can see in the record, it's part of the record,

[01:03:35] Speaker 08:
that even says, and this is actually one of the opinions that came out in 06, after careful analysis the EAC's general counsel with the unanimous support of EAC commissioners issued a determination to Florida, this is that early one, which upheld the 13-year president of the NVRA that the federal form was promulgated by the EAC, must be unconditionally used and accepted by all NVRA jurisdictions.

[01:03:56] Speaker 08:
I cite it because it shows that there was that practice of

[01:03:59] Speaker 08:
informally agreeing that you need to have a vote under the statute, but the statute says you need three commissioners to approve.

[01:04:06] Speaker 08:
That's important.

[01:04:07] Speaker 08:
There was no requirement of an on-the-record vote.

[01:04:09] Speaker 08:
The only reason it became an on-the-record vote is that Arizona approached the commissioner, the chairman of the commission, I think it was the chairman of the commission at the time, and said we need an accommodation because we're in the middle of all the litigation.

[01:04:20] Speaker 08:
That's why they wanted it being an on-the-record vote, but historically they had actually done this precisely this way.

[01:04:26] Speaker 08:
There was no misrepresentation.

[01:04:27] Speaker 08:
at all.

[01:04:29] Speaker 08:
Let's talk about one misrepresentation I do want to address.

[01:04:32] Speaker 08:
The notion of the Browns being registered.

[01:04:35] Speaker 08:
They are not registered in any meaningful sense in Kansas law.

[01:04:38] Speaker 08:
What they're allowed to do is to vote at the pleasure of the Secretary of State.

[01:04:42] Speaker 08:
They receive provisional ballots for the August 3rd primary, which the Secretary of State, in his good grace, decided to let them cast, and they were allowed to vote in a federal election.

[01:04:53] Speaker 08:
He may do that on November 8th, okay?

[01:04:55] Speaker 08:
There's nothing that binds him to do that.

[01:04:57] Speaker 08:
And frankly, in the litigation that they've been having in other courts, there have been suggestions more categorically that he wants to reserve the rights as to what to do with those people.

[01:05:08] Speaker 08:
And this is exactly the kind of procedural hurdles that Congress tried to avoid, at least for federal elections.

[01:05:16] Speaker 08:
It's why the NVRA was passed.

[01:05:19] Speaker 08:
It's why we have the federal form.

[01:05:21] Speaker 08:
And the notion

[01:05:22] Speaker 08:
that this is speculative harm.

[01:05:24] Speaker 08:
This is coming from the secretary's own brief.

[01:05:27] Speaker 08:
I didn't come up with this number.

[01:05:29] Speaker 08:
This is not my number.

[01:05:30] Speaker 08:
This is in his brief, page 56.

[01:05:33] Speaker 08:
What he says is that Kansas has accepted 62,992 applications to register to vote from the date, which is February 1st, to present.

[01:05:42] Speaker 08:
of which 11,655 were mail-in applications that may have been on a federal form.

[01:05:53] Speaker 08:
That is an extraordinary number.

[01:05:56] Speaker 08:
By any means, that is mass disenfranchisement.

[01:06:00] Speaker 08:
This court has the power and the opportunity to do something really important here, which is to prevent these people from being disenfranchisement.

[01:06:08] Speaker 09:
Under Kansas law, you have 90 days to provide

[01:06:11] Speaker 09:
proof of citizenship.

[01:06:12] Speaker 09:
So if you mail your registration form in without it, you're on a waiting list with 90 days to provide.

[01:06:20] Speaker 09:
So that's a constant flux.

[01:06:22] Speaker 09:
That list is constantly changing.

[01:06:25] Speaker 09:
And some people may never provide it because they move out of state or they die.

[01:06:29] Speaker 09:
Or they decide they don't want to vote.

[01:06:33] Speaker 08:
Judge, this isn't my number.

[01:06:34] Speaker 08:
This is their number.

[01:06:35] Speaker 08:
That's all I'm saying.

[01:06:36] Speaker 08:
It's what he put in a brief and he chose to put in a brief.

[01:06:38] Speaker 09:
It's not mass disenfranchisement, though.

[01:06:41] Speaker 08:
If that is a mass disenfranchisement, with respect, Judge, I don't know what is.

[01:06:44] Speaker 08:
But even one voter that'd be disenfranchised would be too much, given the strength at which Congress has spoken here.

[01:06:52] Speaker 06:
All right.

[01:06:53] Speaker 06:
Thank you.

[01:06:54] Speaker 06:
Did you want to hear from Mr. Jennings?

[01:06:57] Speaker 06:
Yeah.

[01:06:57] Speaker 06:
All right.

[01:06:57] Speaker 06:
Counsel, thank you.

[01:06:58] Speaker 06:
Council for the Department or for the Commission.

[01:07:02] Speaker 06:
Mr. Tenney, where are you seated?

[01:07:06] Speaker 06:
Thank you.

[01:07:09] Speaker 09:
You've heard my question.

[01:07:10] Speaker 09:
I don't want to repeat it for the third time.

[01:07:13] Speaker 09:
Do you have any response?

[01:07:14] Speaker 04:
Yeah, the brief that we filed in this court was filed by the Department of Justice, which has authority to represent the commission.

[01:07:21] Speaker 04:
The commission does not have independent litigating authority in the federal courts, and so the representations that are made in the brief are representations from the department.

[01:07:29] Speaker 09:
Now, wait a minute.

[01:07:30] Speaker 09:
If you are representing a commission and I read your brief,

[01:07:36] Speaker 09:
I'm not reading the Department of Justice's policy position.

[01:07:40] Speaker 09:
I'm supposedly reading the Commission's policy position.

[01:07:44] Speaker 09:
And the Department in the Civil Division or the Solicitor General's Office has meetings with the General Counsel of the various commissions to decide exactly what their position is on these things.

[01:07:57] Speaker 09:
So you're telling me

[01:07:58] Speaker 09:
that what we have here is not the commission's position, it's the Department of Justice's position, and the Department of Justice is not a party to this case.

[01:08:07] Speaker 09:
This is not, so this brief is not the commission's

[01:08:12] Speaker 04:
Just to be clear, we're not talking about policy positions, we're talking about legal positions.

[01:08:18] Speaker 09:
A legal position can't be a policy position?

[01:08:22] Speaker 04:
It could.

[01:08:22] Speaker 04:
I guess I just want to make clear.

[01:08:24] Speaker 04:
You've represented that Mr. Newby acted illegally.

[01:08:28] Speaker 04:
The Department of Justice is charged by federal statute with representing the Commission in court.

[01:08:34] Speaker 04:
I know that.

[01:08:35] Speaker 09:
That doesn't say that the Department of Justice gives its views

[01:08:40] Speaker 09:
regardless of what the Commission or the agency's views are.

[01:08:43] Speaker 04:
Well, I wouldn't say regardless of what the agency's views are, Your Honor, but the Department of Justice has an obligation to the court if the agency's decision is irreconcilable with governing law as the department concluded it was in this case, the Department of Justice sets out the government's position.

[01:09:03] Speaker 04:
And that is what we've done here, and I hope that at least now I've been clear about what it is that we are saying in our brief.

[01:09:10] Speaker 06:
Thank you.

[01:09:11] Speaker 06:
We will take this case under advisement.