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

[00:00:06] Speaker 01:
Good morning, your honor.

[00:00:20] Speaker 00:
My name is Jared and I represent citizens for constitutional integrity.

[00:00:25] Speaker 00:
With me at council table is Dean Michael Meltzner.

[00:00:28] Speaker 00:
who served as counsel for the NAACP Legal Defense Fund in the Lanham Peak Hierarchies.

[00:00:34] Speaker 00:
I reserved two minutes for rebuttal.

[00:00:37] Speaker 00:
To enforce our sacred right to vote, Article 3 standing does not require proof of how the Census Bureau would apportion seats on remand.

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No plaintiff in an unfortunate case has ever proven the apportionment that a legislature or an agency would do if the plaintiff prevailed their court.

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The district court required that of citizens, but it did that although the Supreme Court rejected that argument directly in 1962.

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It held it would not be necessary to decide whether plaintiffs, whether repellent allegations will ultimately entitle them any relief in order to hold that they have standing to seek it.

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The Baker versus Carr case.

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Article III recognizes standing for malapportionment claims as long as the plaintiff

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presents an apportionment with a closer approximation to the legal requirements.

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Citizens' calculations show that it's possible for them to obtain new seats, and that establishes their Article III standing.

[00:01:41] Speaker 03:
So what would be the optimum requirement to report even with Germany, when the people are all serving?

[00:01:48] Speaker 00:
Well, Your Honor, that's a good merits question, and that is a very good remedies question, that the parties would brief, that they would

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investigate the facts of how that would work.

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And that's far down the line.

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For now, as long as this court has the power on redressability, and as long as exercising that power has some possibility of giving citizens their seats back, that satisfies the requirement of redressability.

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And here, simply setting aside and vacating the report would require

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and apply the 2010 census, and that would give New York and Pennsylvania the receipts back.

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That is the action against non-smoking case.

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That is the practice of this court.

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When a court sets aside under the Administrative Procedure Act by USC 7062, that requires the prior order to

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restore to spring back into effect.

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That is how Vakator works.

[00:03:01] Speaker 03:
There's a lot of sound in the interim, though.

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It's predicated on the apportionment that occurred.

[00:03:06] Speaker 03:
That would be quite something to take us back to before any of this happened.

[00:03:12] Speaker 00:
Yes, Your Honor, a lot of water has gone under the bridge.

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We've been litigating this case as quickly as we can.

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We could not bring it before the Census Bureau finished its apportionment.

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We brought it after that, and we've been moving at pace.

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It's not uncommon in malapportionment cases for them to take a while.

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The Supreme Court has voluminous malapportionment cases that are still ongoing.

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They addressed some this term.

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They issued opinions last term.

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But these are all ultimately remedies questions that we can address at that appropriate phase.

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Yes.

[00:03:46] Speaker 03:
No, I was just trying to say, you seemed to not believe that you had to put forward any facts with respect to New York or Pennsylvania, their voter registration, their ID requirements, and whether any of that was going to fall to the reduction clause.

[00:04:02] Speaker 03:
So I'm just trying to get a sense again of your remedy, your outcome with respect to this case.

[00:04:08] Speaker 00:
Because we have proven a procedural right and that arises from our zone of interest, arguably within the zone of interest of the statutes where our injury is, we only have to prove some possibility that the remedy could restore and cure the injury.

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And we have mathematical proof that if the Census Bureau

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did their reapportionment based on some analyses of the data that it could restore seats to New York and Pennsylvania, or both.

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And that is what differentiates this case from the Cantor case, from the Franklin case, from even the Sharrow case.

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Those situations did not have this mathematical proof.

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They did not establish the possibility that there was any possibility.

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The way it was articulated in briefing as I conceptualized it was that this is a C, causation straightforward.

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There's a report, and then at the end of the day, at least in two instances, we lost Cs.

[00:05:20] Speaker 03:
Exactly.

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But would that be equally true if then there's a report, but then the legal wrong you're complained of,

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corrected by your own estimation would actually result in a worse scenario.

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This is all, in some manner, speculative as in the Duke Power case, Your Honor, and that is the Baker versus Card case.

[00:05:43] Speaker 03:
I'm trying to take it out of speculation, so I'm just saying, let's just suppose that you have a case.

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Let's just take this case.

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Suppose that you actually have evidence and you do the statistical analysis and your expert comes back and says,

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If we assume the legal wrong to be what you assume the law, legal wrong to be, which is to say the Census Bureau was supposed to adjudicate whether voter ID laws are invalid and assimilate that into the report, it turns out actually that the jurisdictions that you represent would be worse off.

[00:06:15] Speaker 03:
Would you say that causation is still established?

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Because look, all you need to know is there was a report and after that report was filed and an apportionment was done, we're worse off.

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Yes, Your Honor.

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That is all that causation requires.

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But for causation, the report paused the agreement that comes out of 5 U.S.C.

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702 of the Administrative Procedure Act, the data processing case, and the Ted Cruz percentage case.

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So even in correcting my Your Honor's information, correcting the legal wrong that you're complaining about, with which you've been in an even worse position,

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Yes, they'll say causation is established.

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Well, we can't prove that it would put us in a worse position.

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But I'm saying that's the only evidence you have.

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If you do the report, you need to file it.

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All that Article 3 requires is but for causation, whether the report caused our injury.

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And it did.

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Here it did.

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It is undisputed that that's what it did.

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Now, if the Census Bureau undergoes this process,

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hurts us, that would be unfortunate, but that doesn't change our threshold, our ability to get over the threshold into court.

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So you don't have to show that the legal wrong you complained of cost the... Correct, Your Honor.

[00:07:27] Speaker 00:
Let's look at the, I think the Blu Khan case and the Brown case discuss procedural injury based on failure to complete NEPA when building a dam.

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And the court said, of course you have procedural injury, a procedural right, and you can challenge that because they didn't complete the environmental analysis.

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So it could happen that when the agency goes back and analyzes the dam, that it turned out worse for the plaintiffs.

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They could end up taking the plaintiff's property to build the dam.

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They were nearby, and that is entirely possible that it could work out worse.

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But the Supreme Court did not recognize the procedural right

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as long as there's some possibility of a remedy, even if there is also a possibility that it might not turn out in your favor.

[00:08:14] Speaker 03:
How do you articulate specifically the procedural right that you have here given to you by either the statute or by section two?

[00:08:29] Speaker 00:
So the zone of interest test gives us the procedural right.

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That's the Peña case by this court.

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That's also the Lexmark case.

[00:08:38] Speaker 00:
We fall well within the zone of interest for Article 1 of the Constitution, the 14th Amendment Section 2, or the Census Bureau statutes, and for Section 209, which requires the Census Bureau to perform all of the constitutional requirements and references the 14th Amendment Section 2 specifically.

[00:08:56] Speaker 00:
The procedure itself is the calculation of denial and abridgments, which the Census Bureau did not do, has never done, and has stated in a letter to us that it would not do.

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So that is the procedure that we are seeking.

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And because we're within the zone of interest, that gives us this procedural right.

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And the procedural right is what allows us the lower burden of proving redressability.

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It also allows us a lower burden of causation.

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We only need to prove that there are two connections.

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And this is Your Honor's STD case, the service transportation board case from last year, where you have to prove two connections, a connection between the agency,

[00:09:38] Speaker 00:
legal flaw in the agency action and between the agency action and the harm.

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So that's another way to prove causation here.

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There's really lots of ways to prove causation.

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The district court wanted us to prove it in a particular way, but we think that we don't have to prove it in that particular way.

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We could have proven it in lots of other ways.

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Here the most straightforward, the easiest way to prove causation is but for causation.

[00:10:02] Speaker 00:
But for the report, we would not have suffered this injury and that proves

[00:10:08] Speaker 03:
even if the Census Bureau doesn't allocate the seats?

[00:10:12] Speaker 00:
Even if in the long run the Census Bureau doesn't allocate the seats, we can't prove what they're going to do for the future.

[00:10:18] Speaker 00:
That's the whole basis for procedural injury.

[00:10:21] Speaker 00:
That's the catch-22 from the trial case, from the Oglala suitcase that Chief Judge Garland ruled upon.

[00:10:33] Speaker 00:
So it presents a, if the entity doesn't do the analysis, it's hard to prove the injury from the analysis that they didn't do.

[00:10:40] Speaker 00:
And so you need to have some way to open that up.

[00:10:42] Speaker 00:
And that's what this procedural rights do.

[00:10:48] Speaker 03:
My colleagues don't have additional questions for you at this point.

[00:10:51] Speaker 03:
We'll give you to not provoke.

[00:10:53] Speaker 03:
All right, thank you, Ron.

[00:11:03] Speaker 01:
May I please support Sarah Clark for the United States.

[00:11:08] Speaker 01:
Plaintiff has not met its standing burden.

[00:11:11] Speaker 01:
Not only has it failed to grapple with the legal and practical barriers to its ability to obtain redress, it also hasn't shown standing even within the four corners of its hypothetical scenarios.

[00:11:23] Speaker 01:
So I just want to start with redress.

[00:11:25] Speaker 01:
I mean, we just heard a lot about causation, and I have plenty of responses to that, but I want to refocus

[00:11:32] Speaker 01:
on the redressability, Judge Childs, I think your question elicited a response that this is really a merits question.

[00:11:41] Speaker 01:
Whether or not anything will happen in the real world, that's not for now.

[00:11:45] Speaker 01:
And that's incorrect.

[00:11:47] Speaker 01:
I think it's important that this court consider that the relief that plaintiff is asking for cannot redress his injury.

[00:11:57] Speaker 01:
And I think it tries to run away from that analysis by saying,

[00:12:01] Speaker 01:
We have a procedural right.

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You just don't even need to think about it.

[00:12:05] Speaker 01:
And obviously, we disagree that there is a procedural right here.

[00:12:09] Speaker 01:
And it's certainly not correct that you just ignore redressability.

[00:12:14] Speaker 01:
I can just dig a little bit deeper on the procedural issue.

[00:12:19] Speaker 03:
So why wouldn't drawing the report in the statement have some impact?

[00:12:31] Speaker 01:
A few reasons, Your Honor.

[00:12:33] Speaker 01:
So for one, of course, even if the Census Bureau were to be faced with an order from this court that says the last report is invalid, that doesn't mean that New York suddenly has an additional representative or that Texas's two additional representatives just walk out of the Capitol.

[00:12:49] Speaker 01:
So there is no kind of real world effect in that sense.

[00:12:52] Speaker 01:
And I would also point to the Supreme Court's decision in Franklin after discussion of

[00:12:59] Speaker 01:
a chain of causation between the secretary's report and the president's statement.

[00:13:05] Speaker 01:
So of course there, they were observing that there was probably going to be, if the report changed, the president's statement changed.

[00:13:14] Speaker 01:
I just wanna distinguish this case and say that it's far from obvious here just because this is a different and more complicated issue.

[00:13:22] Speaker 01:
This is not a kind of a mechanical correction.

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This is a intentfully judgment-laden analysis

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the plaintiff wants the Census Bureau to engage in.

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And I think that brings us back to the redressability issue.

[00:13:35] Speaker 03:
All that might be true, those may be good arguments on the merits as to why I can't expect the Census Bureau to undertake the kinds of legal assessments that the theory would put forward.

[00:13:45] Speaker 03:
But for purposes of standing, we have to assume the legal merits of the theory that's being performed.

[00:13:54] Speaker 01:
Yes, but you don't have to assume

[00:14:00] Speaker 01:
can issue orders they don't have the authority to issue.

[00:14:03] Speaker 01:
So for example, one sort of fact that plaintiff doesn't grapple with is that the statute directs the secretary to send the tabulation of total population in its report, not some sort of adjusted count.

[00:14:18] Speaker 01:
So setting aside the practical difficulties of gathering this information, there are legal barriers as well.

[00:14:24] Speaker 01:
And those are rightfully considered in the redressability analysis, not just at the merits.

[00:14:30] Speaker 03:
equal but for regressibility purposes too, we assume that the plaintiff's program has no merits.

[00:14:36] Speaker 01:
We assume that they're gonna win on the merits, but that doesn't mean that the court has any powers that plaintiff posits they might have.

[00:14:43] Speaker 01:
There are still practical limits.

[00:14:45] Speaker 01:
So if a plaintiff were to come in and say, you know, I have an injury, it will be redressed by you.

[00:14:51] Speaker 01:
You know, I think I should be the secretary of defense.

[00:14:53] Speaker 01:
My injury will be redressed when you enjoin the president to appoint me the secretary of defense.

[00:14:58] Speaker 01:
I think it would be quite reasonable to say that's not redressed, we cannot.

[00:15:04] Speaker 01:
So even if you're right on your legal theory

[00:15:06] Speaker 01:
you should be the Secretary of Defense, that doesn't get you there.

[00:15:09] Speaker 01:
And I think it's quite proper to consider that at the standing stage, even if it could also be relevant at the merit stage.

[00:15:17] Speaker 03:
So the district court can do anything to this, right?

[00:15:20] Speaker 01:
Right.

[00:15:21] Speaker 01:
The district court sort of said, OK, we're in the world of your scenario, accepting that the Census Bureau could do something of the nature you're asking.

[00:15:32] Speaker 01:
even though you haven't shown that you would be better off, that your injury has been caused by the report.

[00:15:38] Speaker 01:
And I think, you know, they relied on a vision, but for many reasons, you know, it wouldn't be addressed by a different report.

[00:15:45] Speaker 01:
So they focused, I think, frankly, on plaintiffs' reliance on their scenarios that involve Wisconsin, right?

[00:15:54] Speaker 01:
So plaintiffs' theory, one of their theories is that voter ID requirements require adjustments to total

[00:16:04] Speaker 01:
They allege in their complaint and they reiterated in our community district court that states other than Wisconsin have these offending laws and that adjustments would need to be made.

[00:16:15] Speaker 01:
There are scenarios three and four, which are the only two that benefit the plaintiffs that they allege, the members that they allege are injured, include Wisconsin only.

[00:16:25] Speaker 01:
They don't take into effect any other states and therefore they tell us nothing frankly about what

[00:16:31] Speaker 01:
an apportionment might look like if voter ID laws across the country were taken into account.

[00:16:37] Speaker 01:
So there's just no way of knowing what would happen.

[00:16:40] Speaker 01:
I think this court's decision in National Law Center versus Cantor is quite instructive.

[00:16:46] Speaker 01:
That case involved a challenge to the Census Bureau's method for counting homeless persons during the census.

[00:16:52] Speaker 01:
And the panel observed, if you haven't shown us that you would be better off,

[00:16:59] Speaker 01:
if a count was done according to how you think it should be done.

[00:17:02] Speaker 01:
And in fact, you haven't said how you think you want it to be done anyway.

[00:17:06] Speaker 01:
And that is also akin to plaintiff here.

[00:17:09] Speaker 01:
They say, you know, we don't know how the Census Bureau should do this.

[00:17:13] Speaker 01:
We don't know all the states that have denials or refugements.

[00:17:17] Speaker 01:
That's the Census Bureau's problem.

[00:17:19] Speaker 01:
And yet they want to take the position that they would be backed off.

[00:17:25] Speaker 01:
And that's exactly the argument at this point projected in Cantor.

[00:17:29] Speaker 03:
I think that the response to that would be, right, when you don't have any idea how it's going to turn out, it can't be expected to forecast the future.

[00:17:38] Speaker 03:
And so the Bureau, in our view, and the legal narrative, which has yet to be tested, should have done X. X was never done.

[00:17:46] Speaker 03:
So it's not incumbent upon us to say how the different artifacts were done.

[00:17:54] Speaker 01:
Right.

[00:17:55] Speaker 01:
That's not enough to get them.

[00:17:56] Speaker 01:
Of course, that doesn't sort of free them from the requirements of showing group 3 standing.

[00:18:01] Speaker 01:
And if it did, I think, you know, potentially the plaintiffs in Cantor put it in a different position.

[00:18:07] Speaker 01:
We do expect plaintiffs to, you know, allege of the motion to dismiss stage and later prove that causation and redressability actually exist.

[00:18:16] Speaker 01:
And I think you see in their briefs

[00:18:23] Speaker 01:
being so heavily on their procedural argument and on the argument that, you know, we can't possibly know, therefore, you should just say we have to.

[00:18:32] Speaker 03:
When you have a situation in which the only, what the Census Bureau did is give a report that's blank.

[00:18:40] Speaker 03:
And somebody wants to say, boy, that's not what you're supposed to do.

[00:18:45] Speaker 03:
And then the report just stays the same because there's no change in it because the report just doesn't do anything.

[00:18:55] Speaker 03:
I have no idea what the report would do if it were done.

[00:18:58] Speaker 03:
I'm just telling you this.

[00:18:59] Speaker 03:
A blank page, not a report.

[00:19:01] Speaker 03:
What would you say about causing any of this?

[00:19:04] Speaker 01:
Well, I guess one thing that I would like is just, it's not clear that we would be in the world of nothing changed because the president has his own independent statutory obligation to transmit population totals and apportionment to Congress.

[00:19:17] Speaker 01:
And that's actually why, no, sorry.

[00:19:20] Speaker 03:
Well, suppose the president just says, okay, I'm just,

[00:19:24] Speaker 03:
The report is blank.

[00:19:25] Speaker 03:
I usually rely on the report because the report is blank.

[00:19:28] Speaker 03:
I'm just going to, you know, stand over the same stuff that was in place now.

[00:19:32] Speaker 03:
That's reporting.

[00:19:34] Speaker 03:
So it comes along and says, the president just relied on a blank piece of paper.

[00:19:38] Speaker 03:
The paper had to have something on it.

[00:19:40] Speaker 03:
And the challenge is, yeah, the paper had to have something on it.

[00:19:43] Speaker 03:
And what would you say about that?

[00:19:45] Speaker 01:
Right.

[00:19:45] Speaker 01:
So setting aside the cause of action issues, I think a plaintiff would need to come in and say,

[00:19:50] Speaker 01:
Census Bureau, if you had actually counted the total population of the states, or if you had actually put the total population of the state down on paper and passed that to the president, we actually would have gained a reference.

[00:20:02] Speaker 01:
So they would show that there would be some sort of difference in the real world for them if the Census Bureau had complied with whatever point of view because it's legal obligation to be in a given case.

[00:20:16] Speaker 01:
I just wanted to emphasize that

[00:20:20] Speaker 01:
they do have to connect the challenge conduct to the injury.

[00:20:25] Speaker 01:
So we don't agree with their suggestion that causation is satisfied just by saying, oh, the report said minus one.

[00:20:33] Speaker 01:
They need to make a connection between what they're saying the Census Bureau has done wrong, which for them is not applying this judgment and their injury.

[00:20:45] Speaker 01:
And the way they try to get out of that obviously is by saying procedural injury, we don't have to do any of that.

[00:20:51] Speaker 01:
And so I'll just say briefly, this is not a procedural injury that triggers those sort of soften causation or redressability burdens, right?

[00:21:02] Speaker 01:
They try to fit it into that framework by saying this is the process that the Census Bureau should have engaged in.

[00:21:09] Speaker 01:
But those kind of classic procedural injury is, you know, environmental impact report or letting me comment on our rule of things that are adjacent to the substantive

[00:21:20] Speaker 01:
decision here, they're challenging the substantive decision.

[00:21:22] Speaker 01:
And if it were correct, that sort of any process that a defendant does, it's sufficient to bring it within the more lenient procedural injury world.

[00:21:32] Speaker 01:
I think all rapid cases are very different, including the spring horse on pieces, Franklin, Utah, this court's decision in Cantor.

[00:21:43] Speaker 01:
I think those would all look different if the mirror in the

[00:21:50] Speaker 01:
Of course, we don't think that even if we're in the procedural injury world, that they met that more lenient burden because it part of some of the redress ability issues that we were talking about earlier.

[00:22:05] Speaker 03:
You also suggest that they should be here anyway, because section 209 is not the, they're not a property in that regard.

[00:22:14] Speaker 01:
Right, so if we were to get to the cause of action issues, we don't think that they fit within that section at all.

[00:22:20] Speaker 01:
They don't have a cause of action under section 209 because they're not a person within the meaning of that provision, and also because they're not challenging, they're not approved by the use of any statistical method.

[00:22:33] Speaker 01:
So that provision is just, they're not within it, they can't rightly bring a claim under it, and it's designed for a totally different set

[00:22:43] Speaker 01:
So there has been, I believe, a three-judge district court panel that rejected states attached to bring such a claim saying you're not one of the listed persons.

[00:23:00] Speaker 01:
So that's really one of their problems under Section 209.

[00:23:04] Speaker 01:
And then obviously they have the problem of not being agreed by the use of any statistical method.

[00:23:09] Speaker 01:
I think there they would say

[00:23:11] Speaker 01:
We're challenging the report.

[00:23:12] Speaker 01:
The report is an activity.

[00:23:13] Speaker 01:
The activity is related to statistics.

[00:23:17] Speaker 01:
And that's just not consistent with the plaguing of the section.

[00:23:23] Speaker 02:
I'm trying to understand who could ever bring a section to a case more costly.

[00:23:32] Speaker 02:
Let's suppose the state passes a call that says,

[00:23:38] Speaker 03:
And so, these, let's say, for the sake of the hypothetical, Wisconsin could pass that law, and they're the only state that has such a law.

[00:24:02] Speaker 03:
But, and these plaintiffs,

[00:24:05] Speaker 03:
bring the same philosophy and say, we know exactly how many people are on the stamps in Wisconsin.

[00:24:15] Speaker 02:
There's a lot of work.

[00:24:19] Speaker 02:
Census had that information.

[00:24:23] Speaker 02:
They planned it to stay in the United States for approximately a year.

[00:24:38] Speaker 01:
I think they would still have, frankly, the same for dressability problems that go to the Census Bureau's ability to do this kind of analysis in the first place, but those not.

[00:25:10] Speaker 01:
Well, that obviously wouldn't resolve the limits on their ability to transmit.

[00:25:22] Speaker 01:
For one, it wouldn't resolve their limits and their ability to transmit information to the president.

[00:25:27] Speaker 01:
They have to report on the total population.

[00:25:29] Speaker 01:
Also, what plaintiff envisioned, and I think even in not hypothetical, what the plaintiff would be saying is,

[00:25:36] Speaker 01:
the Census Bureau has an obligation to survey all 50 states, use that statement to decide what state laws constitute aburgence or denial.

[00:25:46] Speaker 01:
So maybe in this hypothetical, they would ultimately determine it was only this Wisconsin stamp law, and then determine with precision how many people were subject to that.

[00:25:56] Speaker 01:
So within the world of scenarios, scenario three, scenario two, I think a place in that situation would be

[00:26:06] Speaker 01:
that are able to show, you know, okay, if you only remove these people, recalculate, do you think we're better off?

[00:26:13] Speaker 01:
They would satisfy kind of that rep, but they still would not, I don't think, be able to overcome the sort of broader issues with requiring the Census Bureau to do this.

[00:26:24] Speaker 01:
It's not within the law.

[00:26:26] Speaker 03:
In that scenario that would play out, then the case couldn't be exposed as an issue or as a business.

[00:26:34] Speaker 01:
I think it still could be.

[00:26:35] Speaker 01:
I think the causation and redressability inquiry.

[00:26:37] Speaker 01:
Oh, so sorry.

[00:26:39] Speaker 01:
I guess in that they examine the specific scenario, yes, I think that's a different sort of approach to it.

[00:26:45] Speaker 01:
Obviously, we think both would be correct and both would be sufficient to be plaintiff standing.

[00:26:51] Speaker 01:
Both being the sort of broader redressability problems and the specific.

[00:26:56] Speaker 01:
No, that's not what it is.

[00:26:58] Speaker 01:
Right.

[00:26:59] Speaker 01:
And versus the specific, what have you alleged?

[00:27:02] Speaker 01:
We see that that isn't even enough.

[00:27:04] Speaker 01:
taken at face value to get you over the causation.

[00:27:08] Speaker 01:
So maybe that particular issue could be handled better in a different case, could be handled more precisely, but obviously not what we have here because they haven't even kind of narrowed the analysis sufficiently.

[00:27:21] Speaker 03:
I guess I'm being confused.

[00:27:26] Speaker 03:
But you're saying that even in the high synthetic system,

[00:27:31] Speaker 03:
in a suit brought against the Census Bureau, I think that's correct.

[00:27:45] Speaker 01:
That's not to say that there is no... I'm not sure, Your Honor.

[00:27:51] Speaker 01:
It's not clear because of the way that the production clause and the statutory scheme exist.

[00:27:58] Speaker 01:
There's no obvious thing.

[00:28:01] Speaker 03:
I have a problem when you make an argument that with respect to a specific constitutional provision, you can't articulate for me how any plaintiff would ever have standing to enforce it.

[00:28:26] Speaker 01:
Well, enforce it is a different question, right?

[00:28:29] Speaker 01:
One of the issues is

[00:28:31] Speaker 01:
the correct defendant.

[00:28:33] Speaker 01:
And of course, this court doesn't need to go so far.

[00:28:35] Speaker 01:
It doesn't need to sort of have a sweeping theory of the reduction clause and who might be able to break the case.

[00:28:42] Speaker 01:
It's sufficient to say that this plaintiff here has not satisfied the requirements of standing.

[00:28:47] Speaker 01:
We don't know if anyone else, we don't know what circumstances might be sufficient, but this plaintiff has not met the requirements of article.

[00:28:58] Speaker 03:
We don't know what defendant could redress

[00:29:10] Speaker 03:
in the tax.

[00:29:11] Speaker 01:
Well, again, I don't know that this court needs to opine on that necessarily or to speak categorically on that issue.

[00:29:21] Speaker 03:
I mean, what we have before is that it's relevant to whether we should agree with you with respect to kind of how the brain when the census heroes

[00:29:39] Speaker 01:
So I guess another way to look at that issue could be through the lens of, I guess, timing really, timing in relation to the power of the Census Bureau.

[00:29:56] Speaker 01:
So to contrast in, say, Franklin and Utah, some of these other cases, those cases were resolved before.

[00:30:06] Speaker 01:
the new apportionment took back.

[00:30:08] Speaker 01:
So I think that's another sort of barrier to regressibility here that I wasn't sort of emphasizing enough earlier.

[00:30:14] Speaker 01:
That I think also would be sort of sufficient to block regressibility and would not require sort of opining more broadly on the scope of the census bureau's authority.

[00:30:27] Speaker 01:
I think the bottom line though is plaintiffs can't obtain the relief that they're

[00:30:34] Speaker 01:
asking for the kit get redressed for the injury that they have asserted and relied on.

[00:30:40] Speaker 01:
And so there's just no artichoke-free controversy here.

[00:30:43] Speaker 03:
I mean, we could assume that you're wrong on all your broader arguments about regressibility needs to be the Census Bureau and still affirm on the district court's rationale, which is to say, yeah, you can bring it to the Census Bureau.

[00:30:55] Speaker 03:
Yes, opposed?

[00:30:56] Speaker 03:
State adopts bold acts.

[00:31:10] Speaker 03:
But if you have a political speaker whose showing suffers from the same law that the district court identified, it may well be that the theory could still work.

[00:31:24] Speaker 03:
It could still be against the Census Bureau.

[00:31:26] Speaker ?:
It could still go forward.

[00:31:27] Speaker 03:
But if the proof isn't there, that there'd actually be a better off scenario if the math

[00:31:37] Speaker 01:
That's correct.

[00:31:38] Speaker 01:
That certainly would be sufficient to affirm the district court's decision.

[00:31:41] Speaker 01:
Here, I mean, we would obviously suggest that the court shouldn't apply, you know, embrace plaintiff's theory that the Census Bureau is the correct entity to sue, even in that sort of more limited decision.

[00:31:53] Speaker 01:
But I agree with Your Honor, that would be sufficient to affirm the dismissal on stamping grounds of plaintiffs' suit.

[00:31:59] Speaker 03:
And the Dutch law says that a fortunate shall be reduced, doesn't say who, and then there's no enabling statute with respect to this.

[00:32:08] Speaker 01:
Exactly.

[00:32:08] Speaker 01:
There's no constitutional, there's no language in the reduction clause or in any statute that assigns this responsibility to any particular government actor.

[00:32:21] Speaker 03:
And you're not taking a position on who that government actor is.

[00:32:31] Speaker 03:
But you know, it's 850 plus years later, you still got that.

[00:32:37] Speaker 01:
That's correct.

[00:32:39] Speaker 01:
To the extent it's any, you know, comfort, I don't want to take myself too far off course, but I think what we know from the history is that to the extent the original, the drafters of the 14th Amendment had a vision about who would do this, they thought that it would be Congress.

[00:32:57] Speaker 01:
Maybe these adjustments.

[00:32:58] Speaker 01:
Of course, again, that is sort of aside from.

[00:33:02] Speaker 03:
But Congress can't do anything without that.

[00:33:05] Speaker 03:
I mean, when the 18th census, seven of these census stuff, they come about in the briefs.

[00:33:13] Speaker 03:
I don't know if anyone attached to the briefs in the actual form.

[00:33:18] Speaker 03:
But the actual forms that the census takers used, you know, had a column where they asked them not to just, like, we're going to do this, we're going to sue you, how much money, how much money you have, et cetera.

[00:33:37] Speaker 03:
And as you were writing about shit.

[00:33:42] Speaker 03:
Right.

[00:33:45] Speaker 03:
Well, we didn't even really like tell our people really asked that.

[00:34:21] Speaker 03:
That's the question.

[00:34:24] Speaker 01:
Right.

[00:34:24] Speaker 01:
I think that history just underscores sort of the lack of fit between what plaintiffs want and what the Census Bureau does and can do.

[00:34:33] Speaker 01:
I mean, again, I think Congress envisioned that it would be the one making the changes.

[00:34:37] Speaker 01:
And it's one attempt to sort of do this through the census was not successful.

[00:34:42] Speaker 03:
So I think that the Census Bureau doesn't.

[00:34:46] Speaker 03:
They are the ones who are supposed to be balancing it.

[00:34:50] Speaker 03:
So who better?

[00:34:52] Speaker 03:
to count how many of the everyone's were denied their right to vote.

[00:35:00] Speaker 01:
Right, the Census Bureau is certainly the expert at counting the number of people in the United States.

[00:35:06] Speaker 01:
They're not the expert at evaluating voting rights law or voting rights violations as the Census Bureau

[00:35:18] Speaker 01:
Talk to the Department of Justice, talk to the Civil Rights Division.

[00:35:20] Speaker 01:
They're the kind of experts in terms of voting rights violations.

[00:35:24] Speaker 01:
That's not something that the Census Bureau does or is well positioned to do at all.

[00:35:30] Speaker 01:
They count the total number of people in the United States, and that's what they transmit, of course, to the president, what they send along their population.

[00:35:41] Speaker 03:
So we should just kind of deduce that

[00:35:44] Speaker 03:
Is this more of a ministerial act, or don't do anything about it?

[00:35:49] Speaker 01:
I guess I don't, I'm not saying necessarily that it's ministerial, but I don't think anything would hinge on that sort of difference in this case.

[00:35:57] Speaker 01:
I'm just saying the type of tasks that they do is very, very different from the type of tasks that the plaintiff thinks they should be engaging in.

[00:36:08] Speaker 03:
Any other questions?

[00:36:15] Speaker 03:
Does that not open in two minutes for a vote?

[00:36:18] Speaker 03:
Thank you, Your Honor.

[00:36:21] Speaker 00:
There's a lot there.

[00:36:21] Speaker 00:
I'm going to try to cover as much as I can.

[00:36:24] Speaker 00:
First of all, this is what the framers said about whose responsibility is.

[00:36:29] Speaker 00:
The census taker will find it necessary to ascertain who were capacitated to vote.

[00:36:35] Speaker 00:
That is the Congressional Globe, 39th Congress, first session on page 29 of our reply.

[00:36:41] Speaker 00:
This is the Constitution that we are expounding upon.

[00:36:44] Speaker 00:
And that is an important obligation that the framers have signed in passive voice so that they could make sure that everybody had a responsibility to implement it.

[00:36:55] Speaker 00:
Shall be reduced was his passive voice in the Bart, I forget the exact Bart Weiler case I think, is the Supreme Court said that means the actor is not quite important.

[00:37:06] Speaker 00:
And there the framers were intending a broad implementation of the 14th Amendment section two.

[00:37:14] Speaker 00:
So the Census Bureau recognized themselves in 1870 that it was their obligation, and they have not done it in 150 years.

[00:37:25] Speaker 00:
We've proven that it would change seats, that there is some possibility that it would change seats.

[00:37:31] Speaker 00:
And this report never addressed that possibility.

[00:37:34] Speaker 00:
They never looked at our procedural rights to figure out if that was enough, I expect because they knew that was enough.

[00:37:41] Speaker 00:
They didn't look at it because they made logical analyses.

[00:37:44] Speaker 00:
They said, oh, the only procedural rights are public participation rights.

[00:37:48] Speaker 00:
And we know that from the Summers case.

[00:37:50] Speaker 00:
But that's not accurate because the Japan whaling case is a procedural right that the Lujan case recognized.

[00:37:57] Speaker 00:
And in that case, the Secretary of Commerce was deciding whether to issue sanctions against Japan.

[00:38:08] Speaker 00:
There was no conceivable public participation in that.

[00:38:12] Speaker 00:
So the district court is wrong on its procedural right.

[00:38:15] Speaker 00:
And so there's really, on whether we have procedural rights and there's, we've proven at least some possibility.

[00:38:22] Speaker 00:
It's possible also that the abridgment, I see them over time, that the abridgment and the denials that we've identified are maybe the only ones that the Census Bureau will do.

[00:38:31] Speaker 00:
We don't know, but that's possible.

[00:38:34] Speaker 00:
We have a blank sheet of paper.

[00:38:37] Speaker 00:
I see him out of time.

[00:38:38] Speaker 00:
Your Honour to me, the Supreme Court recognized that we all took oaths to support, to protect, and defend the Constitution, and to fight political thickets and mathematical quagmire.

[00:38:50] Speaker 00:
We request the Court to reverse and to revamp the case for further proceedings.

[00:38:55] Speaker 00:
Thank you, Council.

[00:38:56] Speaker 00:
Thank you to both Councils.