may please the court then thorpe on behalf of the talents the georgia and p and common cause the district court erred in granting secretary camps into dismissing in our view the procedural posture of this case is highly re which is only case out the dealt with these two federal law when i look at the at the question the granite structure area on it seems to me although the case is a little bit different from this case the lose and also the district court never concerned the first amendment question which to me is a very significant question and that is does a person have a federal constitutional right not to vote same still may from a commonsense standpoint if you have a federal constitutional right to vote you would have a federal constitutional right not to vote with the district judge never addressed that question why should send this case lock stock and barrel back down to the district court to take a fresh look at this after the supreme court rules and posted for two reasons your honor though several of the points that you just made are included in our presentation today the first is that this is an ongoing practice that the state suspended while this was pending in the district court but has reengaged in well this case has gone on appeal  they informed this court when moving to hold this in abeyance pending the resolution of the husted case they indicated list maintenance has continued to happen meaning that more voters are purged as a result of what we argue reversed the first amendment question would remain pending obviously we agree with you that the district court did not address the question of whether there was a right not to vote but instead assumed it right not to vote and in our view reached factual determinations about the reasonability of the burden placed on that right you know it's also it's also interesting to me in this case usually my experience has been i've been a federal judge thirty four years is is because it implicates the right of so many people to vote in the federal statutes that are designed to protect that right there is no question that the purpose of the n p r a when initially passed was to increase the number of eligible voters that would end up registered and having the opportunity to vote yeah but there are provisions in there that allows as in the case of section two through four georgia where they can implement certain things driver's license expires and you've been notified that it has expired you have an obligation to go and get a driver's license or you don't get one that's correct your honor and in our view the n p r a includes among those rules a restriction on what the states can allow and that restriction is that they can't remove people as a trigger mechanism by virtue of their failure to vote and that is what this stat about in georgia the trigger  that indicates that non voting is any sort of proxy for change of address and even if it were we think that there is that explicit prohibition in the end the ira on using it for that purpose  determinant of the people in this country don't vote anyway that's correct and the opportunity to vote in the future is unquestionably constitutionally protected all parties agree that the question is whether the federal statute and or the first amendment preserves that right even in the absence of someone exercising it regularly and we think that's on the plain language of the n p r and that is section b two it requires states that are going to adopt these kinds of laws for list mean it's to maintain procedures that are uniform that are nondiscriminatory and that shall not result in the removal of the name of any person from the official list so why reason of their feeling about it so what should the georgia statutes in order to comply with the first amendment in the national structure which it sorry to comply with the first amendment the most important distinction is that it not draw a distinction between voters and nonvoters for the purpose of let's me that's it distinguishes people based on viewpoint by that function for the purposes of the n p r a it merely needs to be a reasonable effort as part of the general program to people that have moved on the basis and so how do you do that the only way you do it is to use the postal services sleepover we do not believe that's the only way to do it the u s p s safe harbor is an example that the plain text of the statute said  it would be on the other constitutionally permissible way to do it while there are others that georgia in fact already use all of the department of driver services coordination with the secretary of state the use of different forms of public assistance  number of ways that the state is informed about change of address actually have some indication of reliability as to why change of address is a reason that person has become an ineligible voter we think that the critical to the briefing in this case is that the state has argued that the how of amendments from two thousand to sanction this practice in our view it's completely the opposite of what the hava amendments make clear as an exception is the use on the backend of non voting after notice as confirmation that a change of address has occurred in relation to some reasonable effort to determine the change of address as occurred that change that but in any of the supreme court's going to that specific issue for us it will though when it does is an open question and the georgia elections are barred heard arguments that's correct we could inconsistent this because of the rights that this case implicates that the two thousand and eighteen elections in georgia are underway people will vote on may twenty fourth in general in prime time start may twenty second in general in primary elections  someone that has been purged and does not know that they have been purged may show up and be unable to cast a ballot and that is a reputable harm no question under settled law that we believe this court has the capacity to re and should by reversing the district court decision even if this court chooses not to reach the statutory question the first amendment should be reached in the sense that the district court committed several errors in performing its first  the first was pointed out by judge to be there is no analysis of the plaintiff's claim that there is a right not to vote that it is a corollary of the right to vote that is so clearly protected under settled law cases like reynolds the constitutional right not to associate with someone or a particular group or so full so that cases in a different come to where they you have a federal constitutional right not to whatever but i couldn't find any federal case anywhere that there's there is no question the supreme court has not held the right not to vote is a federally protected right as articulated by the plaintiffs here but the cases that you just cited are highly relevant to plaintiff's claim hurley is the boston parade case the boy scouts case from two thousand from the early two thousand and all make clear that how we choose to associate with others political cannot be compelled by state action and that reflects a very common principle in first amendment law which is it's not just what we choose to say it's what we don't want to be drawn into say the national libertarian party filed a brief in the makes precisely this argument that there is political value in the speech that says i want to be a registered voter i want to be counted but i want that my non voting to express my frustration with the candidates that actually end up on the ballot anything that puts the thumb on the scales and says we're going to choose to penalize people that don't exercise that right is discriminatory and that does violates the first minute i thank you mr thorpe will hear from good morning your honors and may please the court i'm just heightened assistant attorney general here on behalf of secretary of state brian kim what your position on what posed a possible disposition of this is  question and let the district court have a second look at it in the first mentions why should we do that well your honor i agree entirely with you that this case is the statutory question will be decided by the supreme court post the outcome of the state case and we argue that on the first amendment claim they've not made out any sort of viable claim for the right that there are certain and that's the reason why we believe the case should be heard here if the court decides as you did previously to not hold the case in the bands pending the outcome that posted and i'd just like to know all of the ills that the appellant's have identified with the upcoming election and folks who may have been taken off the rolls they had the opportunity they want so i want couldn't i do it if we send those guys back now they very well could that they wouldn't be they would be permitted to move for that injunction at that point in time a preliminary injunction what would that accomplish if their voters or significant number of voters who baretti been removed from the voter registration rolls were how would that work well depending on how they framed the injunction they could ask the state or das that order are the state to put them back on exactly because they keeps track of those voters who have gone through the address confirmation procedure those voters who have moved to the inactive list because they don't respond to the ad as confirmation postcard and then those voters who have also been removed we keep track of that are being asserted by plaintiffs are not really the rights that they've they've stated here today they say that there is this right not to vote that is the mirror image of the right to go but what they're really asserting is the right not to vote and then remain on the registration  section two thirty four says nothing about voting doesn't require someone to vote or not though all it says is that we are going to comply with the in the arias requirement that states maintain accurate registration rolls and we're going to do that through this process of inquiring as to whether some individuals have had contact with the stay over the course of three years and then after that contact if there is if there is no contact we will send them the address confirmation postcard that's required for found that section two thirty four wouldn't burden such a right and it did that under a number of different standards there have been a couple of different standards advanced by the appellants we have put forward a number of different standards and the reason for the different standard being put forth is because no court has addressed this but we would argue if if what's at issue is the right not to vote and to remain on the registration rolls that's really a for a classic form based analysis appellants are seeking to express their  displeasure with the slate of candidates through not voting by remaining on the registration list the registration list itself is the form through which they're seeking to express themselves essentially and because the registration list has never been designated by the state as any sort of forum for public expression or for the certain of the first amendment rights on behalf of the public it's a nonpublic forum because it's the nonpublic form all any regulation of speech through that form needs this tell me standard it needs to me is whether the regulation is reasonable and viewpoint neutral this is clearly a viewpoint neutral regulation it's not harsh yes or we're all in discussing the supreme court's consideration of the sex surrogate devotion on a similar case and while i agree with some of my colleagues that there is not on all fours but the general and the state of georgia here trigger is not compliance with the state with section two three four of the georgia rule would you care to comment on absolutely and i think that has made is that a sufficient  distinguishment so that we could we can get a little bit more confused than we already are and talk about talk about whether what we do pursued really with this well i think that is an important distinction i'm not sure that it's a distinction that will make a difference on how the supreme court comes out but we're not exactly sure how that decision will read there are a couple of differences between ohio statute and georgia's the first is the one that you identified under ohio statute the trigger for sending the address confirmation part is lack of voter activity under georgia statute it's lack of contact for three years with election officials which could include notification of some sort of change in your status it can include signing a petition for getting something on the ballot whether it's a candidate or some other type of ballot issue and it can include not signing a voter certification card but you it's time you go to vote but in addition this georgia statute looks back three years which necessarily covers a presidential election  statute only looks back to you and i think that coverage of nonvoter activity in there is important in this as it relates to georgia statute because going back to the one nine hundred ninety s when georgia was first implementing section t thirty four in response to the in the ira we initially included or had nonvoter activity as our trigger that went to the department of justice risk clearance under section five the department of justice sent it back saying that was a was problematic for its analysis under section five georgia legislature went back and rewrote the statute passed a new one and that went into effect in one thousand nine hundred seven that's the current language and that current language was passed was pre cleared by section  explicitly included voter activity and then we changed that so dan so your question yes there are some significant differences between the ohio statute in georgia statute well i want exact now and describe them significant but there are differences you know in all these cases we always look to see if this case they can be distinguished from case big that we might want to look at see which way they want to go well i think on the the issue here in the issue that's before the supreme court if they come down on the statutory interpretation question as presented by the challengers in ohio and by the appellants here that the failure to go clause in section eight b two of the n p r a prohibits a state from considering failure to vote data at all unless the state goes through both the permissive notice a change of address program and the address confirmation postcard this is their position if the state does not go through both of those programs it cannot consider failure to vote at all if the supreme court comes out and says yes that's the proper interpretation of the failure to vote clause and then i agree with judges to be in wilson that are our statute likely will follow along with ohio but we would argue that that's not the proper interpretation and we don't believe that that's the way the supreme court will come out and there's a couple problems with that interpretation first and foremost it turns the permissive notice a change of address provision in to require provision second appellants it meant that there are other possible triggers or other possible programs that a state could use other than the permissive knows change of address program for sussing out change of address however if the state was a have some other program the didn't have to vote as a trigger such as comparing the registration list to juror rolls or even canvassing every single voter in the state the state would then still be required to go through the address confirmation procedure because that procedure is a requirement for any change of address program at that stage under the address confirmation procedure of the state has to consider failure to vote data so under a llants reading the state would have an alternative program the didn't have failure to vote as its trigger but it would still consider failure to vote and not use the permissive structure in the notice of change of address program in other words  vote would still be a but for cause of someone's removal but it wouldn't be the trigger that's why we think that reading is just incompatible with the plain language with the statute which is exactly what the district court found the only thing that is compatible with the fact that a state has to have some sort of program to insure the accuracy of their lists by base based on someone's change of address that they notice a change of address program is explicitly permissive but a state must consider failure to vote at the address confirmations state and the fact that the statute is completely silent as to what can trigger the address confirmations statute to address confirmation procedure it's clear that the proper reading of the failure to vote clause just a clarification amendment to the billiard failure to vote clause it adds that except that language to eight be two but the hov itself contains in the provision about list maintenance for change of address in which it says change of address program will not result in someone being removed soley by reason of their failure to vote and that soley language while not explicitly inserted and the m b are a absolutely can be read in conjunction with the in the our right because we know that hava was passed in part in response to problems that came up in the one nine hundred ninety s after the in the are able to pass this is with the department of justice taking that position that states could not consider failure to vote data at all unless they were going through both  permissive notice of change of address program and the address confirmation procedure we know that was in response to that that's why we had the clarification and i'd just like to turn the final few minutes back to the first amendment question les your honour's have any further questions on the statutory interpretation issue on the first amendment appellants now argue that the district court applied a rational basis level overview it very clearly did not it on palin's invitation it fourth circuit said that the time there are the four part test in o'brien has later been construed by the supreme court to really be nothing more than an application of the time place and manner restrictions a clickable to public forums and designated public forums which is why we turn back to the right this being asserted here as the right not to vote in to remain on the forum of the registration list so we would argue that while at the district court here we've said that a form based analysis is the proper analysis but the core and under that analysis this is a nonpublic forum therefore the lower reasonable steps to plies where the district court really did and what the hofman court did is apply the more stringent standard for public forms so if the statute would survive that it certainly would survive the lower level of review that we say is now appellants an argument that this was some sort of ragin rational basis review is just not supported by the district court's opinion the district court clearly found that there is a significant interest here and that there are reasonable avenues alternative avenues for expression section two thirty four says nothing about disallowing voters from going out and expressing their displeasure with the candidates in any other form all it does is should apply here because there's no allegation in the complaint that there's a some sort of viewpoint discrimination they argue that we treat voters and nonvoters differently but the in the ira treats voters and nonvoters differently and there's no there's no attempt to curtail the voter's expression there i'd the idea that they're expressing them throughout selves through non voting we're not doing anything to curtail that so strict scrutiny i don't think should apply or only immediate intermediate level of scrutiny should apply and with the right to vote a fundamental right the right to vote absolutely is a fundamental right but that's not what the it's issue it's the right not to vote and to remain on the registration lists thank you thank you you your honor and i certainly understand the panel's impulse to discuss waiting for the supreme court to decide the who's dead case because the right to vote is a fundamental right and because of the operation of this statute we would urge this court to act of state to put those voters who were removed back on the voter registration rolls in the state of georgia two answers your honor first that depends on fortunately entirely on when the supreme court chooses to decide the who's so if they decided at the end of term there will be both general and primary elections that occur before that time at which persons may choose to vote who have been removed from the voter rolls second we don't really understand the mechanics of its order if it were to send it back to the district court to indicate what a preliminary injunction would require and your question of the state judge wilson is is precisely the important part of that it's not just suspending the practice currently it is actually restoring voters to the rolls and doing so with sufficient time that the registrars have the opportunity to have updated election lists that cover all of those voters and possibly notify those voters that they are back on election as an illustration of the operation of the statute and the number of the hundreds of thousands of voters it likely effects if somebody chose to vote in two thousand and eight did not do so in two thousand and ten or two thousand and twelve they received a notice and if they did not respond to that notice and did not vote in twenty fourteen or twenty sixteen they are now purged those are the voters that need to be restored their voting rights under statute the second point i want to make it i understand the impulse to wait on the statutory question is that the state frankly misstates our position as to when failure to vote or whether failure to vote can ever be used hov amendment it is clear allows the non voting on the back and as part of this confirmation procedure that is required in all contexts where you have made to her a determination that somebody until nine o'clock tomorrow morning