pervasive failure of the state of tennessee to follow the national voter registration act which requires tennessee through the department of safety to allow applicants for state driver's licenses to simultaneously apply to register to vote by making the voter registration application part of the driver's license is i wonder i use you've worked hard on this and i wonder if you figured were the state has explained to you there there must be some hang up why they can't do it the way the way the law prescribes  really i think that maybe the attorney general is the best person to explain why the state is not following the n p r a from from the plaintiff's perspective your honor i don't see any technological reason why this so i'm asking in your in your discovery did you find some impediment we did your honor ask we we deposed the people who run the a list system which is kind of the software backbone and the website and online systems in i think that the direct quote is that we can make the system do anything you know if we are given enough time to be able to implement it so why don't you address the standing you would sure so as the court is all too aware standing centrally has three elements entering fact causation redress of guilt i don't think that there is really any debate that in november of two thousand and sixteen on the eve of the very contentious november election of that year that plaintiff howard suffered a concrete and particularized injury in fact he was not timely registered to vote that's not an injury it's a council the fact that he wasn't timely registered well it certainly would have been your honor if he was disenfranchised he wasn't disenfranchised we all agree about that well he was not disenfranchised your honor because the filing of the s and the order of the court on the eve of that election requiring him to be registered and to be allowed to vote so in this case you know everyone concedes that through the bowing of the lawsuit he was allowed to register to vote but is it your contention that even though he were allowed to vote because of the lawsuit that this is an injury that that is likely to be repeated of his statutory right to simultaneously apply for a driver's license and apply to register to vote that had a concrete and particularized effect on him because he could not timely register to vote for the election as a direct result of his inability even if he were this was later on cured if this particular plane did your thing the pact that he went and in the system to vote and he didn't get  that registration simultaneously simultaneously that that's the injury not that not something else the injury i think is definitely his statutory right of simultaneous application of driver's license and stack and register to vote which was denied him because the state of tennessee uses an undisclosed voter registration form and it's driver's license in other words the and this also goes t in the redress ability problems is that his injury derives from the fact that his driver's license application does not include a voter registration form it would be a question here were at least my question concerns injury and the injury here we know that the the law requires the injury to be concrete that adjective has to have some meaning i'm questioning hugh whether or not your plaintiff's injury here is the irrevocable as opposed to concrete well i mean it's you  question the theoretical you understand what it is if he because he wasn't registered in the way the law requires timely and there was undisclosed poorman cetera but he was registered timely to bloat in other words he however it was done it was in him according to the regular statutory scheme so the real injury for a concrete injury would be another plate of who came in and never filed a lawsuit and never got the extraordinary remedy that your client managed to get and and did vote so he wasn't arguably not disenfranchised here he was when he was and he voted your client voted for but the whole point of the n v are a is to guard it was the whole point of the word concrete that's where i'm sort of struggling but the point of the n v army is to guard against the need to take any additional action whatsoever other than feel that it drives it wasn't it wasn't power howard in order to do that had to take that additional action he had to take the extraordinary action of hiring sophisticated legal counsel to go in and get an extraordinary remedy in a federal court in order to register to vote that's the exact type of injury that the n v aright is guarding against the act that you shouldn't have to take any additional action let alone the extraordinary action that should allow he should be able to do that in a one step process are you well let's say that happens hypothetically what happened in that situation many changes of address a third to get that picture with that change of address with the state is he likely to suffer this injury again your honor we don't have to hypothetically wonder whether or not that happened that happened to mr howard during the pendency of this lawsuit he moved he felt that the change of address form and the change of address form in not automatically register and or update his voter registration record he had to take and again this goes to additional concrete and particularly his injury he had to take additional action in order to effectuate his voter injury the effort he had to put forth to manage to vote you know i'm sure you have the was in well i thought that's what you were just saying but he had to do this through you that the injury that's  concrete in particular nature of his injury yes but his his his injury in fact his statutory his injury in fact is the statutory stripping of his statutory right to simultaneously apply for state driver's license and apply to register to vote there was an interesting case that came out from the western district of tennessee or texas after the briefing closed here it's stringer vis versus pavlos twenty eighteen westlaw two one nine three zero three four which really was that opinion issued it came out maintenance two thousand and eighteen if you repeat the site again sure two thousand and eighteen westlaw two one nine three zero three four you didn't file that citation as additional authority with with our court did you i have not  but it does go alternately to the issues that the panel was raising today because in that case again you had people who were stripped of their statutory right to both simultaneously apply for in this case it was change of address transactions and update their voter registration records and they alternately had their voter registration records updated before an election without the filing of a federal lawsuit and in that instance once again  the court there finds standing and finds that their claim is not new principly because the systemic cause of those statutory violations continue unabated and that's the exact situation here tennessee has not updated its voter registration process the nature of the claim there it was a pure envy or a claim claiming that the change of address forms in the renew our applications were not in compliance with section two zero five zero four and seeking a temporary and permanent injunction injunction injunctive relief yes ok i would that's actually distinguishable well that's exactly what plaintiff's complaint here alleges is that he wants a temporary and permanent injunction ending the state's use of an application it's in violation of section two five zero four and that's precisely the court found no standing yes and that's the precise relief that he was denied by the district court because the district court found that he lacks standing in the his claim was moot because the district court allowed him to vote but that's just a recipe of and move forward so if this happens to let's say twenty thousand people who go in and do this we would need to have twenty thousand legal actions and and addressing each one of those to let that person vote would enough to satisfy whatever that would seem like that would be really really cumbersome and if you think to some level impossible you're wrong and that's why i don't think that the standing doctrines or the good morning your honors i am andrew campbell of the tennessee attorney general's office here on behalf of all of the state defendants and your honor we ask that this court affirmed judge froggeries decision in all respects some of the questions that your honors already have asked serve to highlight a point that i wanted to make on the front end we need to be precise when we talk about this case this case is not about online registration transactions it not it is not even about online change of address transactions it's not about kiosk transactions the reason that this case is not about any of that is because none of it was alleged the complaint but didn't did mr howard allege that he went on line to complete the application the form did not pop up he printed up with form and then went in person to the kiosk to effect the driver's application form online filled it out on his computer in the quiet of his study and then brought it to the driver's license center too for presentation and that he had checked affirmatively the question number eight would you like to register to vote today now under that process and this gets to a question that judge cook asked earlier under that process the department procedures mandate the examiner behind the counter to print a prepackaged voter registration form for the applicant to review sign and submit it that every did that happen in this case for whatever reason that did not happen ok now lets the food that mr howe want to continue on with the online application completed it and then answered that question eight what should have happened under tennessee's procedures under the testes the transaction that mr howard wanted needed to perform only could be done in person it could not be done online so to answer your honor's question he takes the driver's license application form to the driver's license center and presented to the examiner on the other side of the counter and the mistake was that if it's this atypical i thought you were about to tell us that it is it is  atypical your honor we have the person didn't follow through and present the registration that day for him to sign correct the entire cut and thrust of the planet's argument is that this is a systemic failure it is not there anything in the record below about the error rate of tennessee's in the procedure yes your honor we submitted a declaration from michael hogan who is the director of driver services for the department of safety is founded documentary number twent one day two and mr hogan stated in his declaration that between february and november of twenty sixteen over three hundred ten thousand in person driver's license applications  clear processed in accordance with the department policy that when someone walks up to the counter and says i would like to register to vote a pretty populated voter registration forms given to them and it is then submitted to the local election officials so they are on the voter rolls the transaction has to occur in person it can't occur online because you have to have your photo taken you that photo was subjected to facial identification imaging capture you were about to say how many of that three hundred thousand they were found to be in error or repeat the process broke down three hundred ten thousand were processed over that period of time february to november and the plaintive only has been able to identify six complaints with regard to that process and all of them by the way were resolved to address a question asked by judge cooke earlier to paraphrase i think i think your honor said why can't the state do it as the statute prescribes in short we are the statute specifically allows us to use two forms the consent order which the plaintiffs have cited repeated repeatedly in the lower court and here specifically allows us to use two forms and the reason that we do is because the voter registration form requires additional information that's not contained on the driver's license application it also needs to be signed it also needs to be sworn to and it also goes to an entirely different recipient it goes to the secretary of state's office does not it does not go to the department of of the the process of the play the getting access to the form in a timely way about that with their argument what that is their argument and their argument misconstrues the statute their argument states that the statute requires that vote both forms be given to the applicant simultaneously that's not what the statute says the statute says that both applications should be made we conceded that the error occurred with the examiner because that is a liability issue and it does not go to issues a moot misunderstanding the plaintiff however submitted additional information on his own from a representative of the davidson county national metro election commission which specifically said that the department of safety sent documentation demonstrating that mr howard's registration was received by the davidson county election commission so as a matter of fact as a matter of liability who made the mistake was it the department of safety it was at the davidson county election commission that point is is not the court the lower court did not have jurisdiction over these claims with regard to online and kiosk transactions certainly had jurisdiction over the over the in person transaction no jurisdiction with regard to the online and transactions because no written notice was tendered to the state and that is a jurisdictional requirement under section twenty five t big no notice no jurisdiction and the notice must be a violation specific that's the way the statute reads if a if an applicant is aggrieved  violation that applicant must provide written notice of the violation to the election official of the state before the applicant can file a lawsuit lawsuit with respect to the violation and the purpose as this court previously said the purpose of that provision is obvious it is allow it is to allow the state to correct the  arguing that there is a systemic problem here there's no evidence of a systemic problem once again six complaints at a three hundred thirty three hundred ten thousand complaints manifested what is it about those that that causes they to identify those as errors is it because the applicant comes in and and brings it to this state's attention is it some audit that the state does that have been a five these is problematic and how do you how do you how do you like about this like rashard of these these were identified by the plaintiffs as as errors then the the complaints manifested addresses all six of them ok so the state based on its own audited receipt is a what if you don't really know whether there are six sixty or six thousand because you're relying on the complaints that they have brought to your attention correct the state is doing this and they are hearing that trying that's what you want that's what timothy wants ok so but there is no audit procedure that you could have that would let you know if there are in fact six sixty or six thousand but and i understand they have the burden of proof i don't your honor i don't want to say that there is no audit procedure i'm i simply i'm not familiar with one and not prepared to discuss one tearing up the only thing that we're left with is the planet's riginal complaint with regard to his for whatever reason failure to get registered prior to the nov twenty sixth teen election that was resolved as judge  was resolved by the agreed order that directed the state to do nothing directed the davidson county election commission to get him registered and he was and he voted and he never has been deprived of his franchise he hasn't been defrauded to turn back for a second with regard to his change of address transaction he hasn't been deprived of his franchise in that respect either his address was updated plaintiff's complaint about that is well yes his address was updated but it wasn't updated in accordance with the procedure that is mandated by the statute that is an encoded intangible non concrete injury that he doesn't have standing to pursue assuming that he followed the first two  prerequisites one sending written notice of the problem and number two articulating it in a complaint if your honour's were for example to remand this case back to the district court to consider that claim in order to bring this case in compliance with federal rules of civil procedure your honour's also would have to issue an order directing the district court to allow the plaintiff to amend his complaint that would necessitate a finding of abuse of discretion no abuse of discretion occurred here or both because the plaintiff never asked to amend his complaint there is no motion to amend on file this allegation was made in a summary judgment motion after the deadline for the pleadings had expired after discovery had been closed and emotion by definition is not  pleasing your honour's if you have no other question i rest my argument and we ask for the judgment to be affirmed thank you the district court and the appellee both speak in terms of transactions you heard mr campbell mention a lot that the transaction was completed in person the n v or a does not speak in terms of transactions it speaks in terms of applications it does not matter under the n p r or a how howard completed his transaction it matters that the application he filled out to instigate that transaction failed to comply with the n p r a because it did not include the voter registration form it did not because the voter registration application is not part of the driver license application in the exact same way well don't have to guess who dept acknowledge council that there are individuals who wish to get a driver's license and are not simultaneously seeking to register the boat sure they didn't check the box for example right but the point is that wanted to be one simultaneous transaction poor poor mr howard who did yes you heard the state argue that you have to be in person per driver's life i mean for your facial recognition other features that require in person what about that absolutely that there are some people who want to just get a driver's license  that each state including two zero five zero for anyone each state motor vehicles driver's license application submitted to the state motor vehicle thirty end of the state law shall serve as an application for voter registration and last the applicant fails to sign the voter registration application portion for so the application can be two pages i'm not saying that the application can't be that doesn't dictate that  all be as opposed to your undisclosed form that those words don't dictate that it must be one piece of paper don't section c of to a five four then goes on to to to to talk about how that affects you a and it says each state shall include a voter registration application form for elections for federal office as part of an application for state motor vehicle driver's licenses it is very clear what was part of necessarily mean and i'm not sure well whatever the act of the transaction absolutely maybe whatever whatever the outer bounds of that term means it certainly does not encompass the process here because the motor voter or the voter registration form is not attached it's not contained it's not referenced it's not mentioned it's not included in the driver's license application it's not part of it and that's alternately plaintive howard's complaint and the