honor may please the court my name is john eastman and i'm counsel for the american civil rights union in this matter as the clerk is noted i freezer four minutes for rebuttal a quarter century ago a grand bargain was reached in congress we're going to loosen up our state voter registration rolls to include registration of motor vehicle departments the so called motor voter law and welfare offices etc but exchange for that  also got in the national voter registration act mandatory list maintenance to ensure that only eligible voters were on the rolls those rolls with therefore have to be maintained to make sure that they were accurate and  current the district court's decision below and i must confess without benefit of the supreme court's more recent decision in the houston case really got the list maintenance side of that grand bargain it reads subsection  for the national voter registration act section eight as the only mandate for list maintenance or for cleaning the voter rolls only with respect to death and changes of address that decision ignores subsection a one which specifically refers to only having eligible voters on the rolls it ignores subsection c to a which specifically requires states to do a systematic effort to clean the road of roles of ineligible voters  and more specifically it ignores the subsequently enacted to help america vote act section two one zero eight three a for the supreme court's decision in hue stead made very clear that the hav a help america vote act elucidates or elaborates on or clarifies is the obligations under the national voter registration act the lower court's decision also treated on well the statute itself lays out multiple purposes not just one purpose in the case but what i want you to help me with is the text of the statute itself specifically with restarting with a four we're talking about a four which says the following it says in the administration of voter registration for elections for federal office each state shall the language is mandatory not record toward each state shall conduct a general program that makes a reasonable effort to remove the names of from the official list of eligible voters by reason of and it gives two possible alternative bases by reason of the death of the registrant or by reason of a change in the residen of the registry i think we can all agree that that's mandatory yes the obligation is on the state and on the county to review the official lists and to make sure as best it can that they have removed from the registered lists those who may have died or moved out of the county that's mandatory problem that i see in your argument and you can help me with it is that when you look at a three the language car always chose to use with very different languages awkward but as best i can tory not mandatory because they say each state shall provide that the name of a registrant may not be removed from the official list of the eligible voters except at the request  that's one choice second by reason of criminal conviction or mental incapacity and then third it references you to a four but that language seems to me to be pretty clearly preparatory rather than mandatory congress did not say although it seems to me it could easily have said if it wanted to in holland sing the various policies that it is numerated it could have said in the administration of voter registration for elections for a federal office each state shall conduct a general program that makes it reasonable effort to remove the names of intellectual voters from the official list of eligible voters by reason of one the death of the registrant to a change in residence three by reason of criminal conviction or four based on mental incapacity but it didn't do that it chose to treat criminal conviction and mental incapacity in a manner that was different from how it chose to treat the death of the registrant and change in the residence how do i get around that well the first issue is that in subsection three wanted to make the obligation to purge on account of criminal convictions or mental incapacity whatever the state law me a benefit wanted to make that mandatory all it had to do was registrant it begins with the same each state shall the same mandatory language covers both subsection three and subsection four and it and here under four just as they shall conduct a general program that makes a reasonable effort under three they shall provide that no one may be removed but for these reasons and we know that is doesn't say you must explore for those reasons it says you can't it's it's implicit is the problem you see they they flipped it around and made one portion of it mandatory and another portion in so far as it was an obligation on the state purely private tory it may be wise to purge for mental incapacity but it doesn't look to me like carl was chose to do that but rather chose to treated in a separate way that's the problem that i'm having maybe i'm misreading it now and i think if that's all we had was subsection three and four i might agree with you i think i would put more into the word registrant which in a one is defined as eligible voters it's implicit that by requiring people to only admit eligible voters to the rolls that they're not supposed to admit ineligible voters but that's implicit if that's all there was i think the lower court decision might well be right but we also have see to which is i think unambiguous it says and again in very mandatory language a state shall complete and then there's to restrict they have to do this they have to have a program that removes eligible voters it's not limited to death or relocation and then the second component of it is and they have to complete that more than ninety you know by the ninety day mark before  election but it also is a mandate a state shall have this program that removes eligible voters from the rolls doesn't that language say shall complete any program rather than a intended instead to give the court of the state the discretion on which program to use the notion that that mandate means they don't have to have any program at all is not the adoption of that language that the department of justice has used in the missouri case for example they specifically said the state fair to have any program that was completed before ninety days violates the national voter registration act and that was that was in the complaint filed in the missouri cases acknowledged both in the district court opinion and in the court of appeals opinion that that was basis of their claim for a violation of the n p r a and then and then all of that is you know elaborated upon by the help america vote act which makes quite clear that the  list maintenance mandate of the n p r a is intended to remove ineligible voters for whatever reason you know if if we had somebody who fraudulently registered to vote as mickey mouse under under the lower court's interpretation of the n p r a that person could not be removed because the fraudulent registration is not being asked to be removed by the voter it's not dealing with felon or mental conviction it's not dealing with change of address or death and that's just a nonsensical under me with the war and that's what you're referencing and you say you say afore you had was a three an a for the district court probably got it right as an interpretive matter but if you look elsewhere in the statute and you read the thing as a whole it's clear that they meant to include incapacity and felon convictions with the others what is there and see one that suggests that not not see one see to your honor the state shall complete not later than ninety days we've got it we've got two components there any program so there can't be no program it's got to be some program the purpose of which is to systematically remove the names of ineligible voters from the official list of eligible voters that's not limited to a change of address or death it's not limited to felon or mental conviction it's not limited to requests to remove myself it includes any ground on which  voter is ineligible a fraudulent registration a non citizen somebody who's registered an actively voting in another state all of those things are covered by c to a as and hava makes that very clear with its mandate how does how do you think it says and i quote a system of file maintenance that makes a reasonable effort to remove or registrants who are in the eligible to vote blah blah blah under such system consistent with the national voter registration act of hundred ninety three consistent with they certainly didn't see how the drafters of hava didn't see haga as creating new obligations did it i think what what the supreme court said and who said was what hava did is clarify and elaborate on the things that were already implicit in the n b r a and i think the language about consistent with the national voter registration act is consistent with there was a reason why civil i guess my question is this if the only obligation on the state was to purge with regard to two things that appear in a for death or change in residence nothing in hava could change that could well you didn't read harvard or rewrite what they wrote in the national voter registration act unless congress it said we're changing it i think i think even if it in the national voter registration act didn't require broader list maintenance and i think it does see to i think clearly does that but hava specifically says to remove registrant or ineligible doesn't say ineligible by reason of death or relocation anybody who isn't eligible and that's that's part of the hava mandate and i think that clarifies the meaning of see to it indicates the inferred negative inf from a one in in v r a about only eligible voters being on the rolls all of which further the purpose to keep the voles current and accurate none of which happens if we only limit or truncate the mandate of list main and so only death and relocation let me ask a slightly different question we we've spent a whole bunch of time on the legal issue but your argument is two fold your argument is a she got the wrong law and be she committed a clear error in her findings of fact tell me what the clear is a couple of things on the clearer i think the most egregious one is we have undisputed evidence in the record that there were no ineligible voters removed from the rolls for a full two year period we have expert testimony that that itself alone indicates that list maintenance activities were not going on and this is this is in the in the summary chart of the data that we have by the expert it's in  tab two seventeen dash three at the end and this is an refuted in from from two thousand and thirteen to two thousand and fifteen not a single inactive voter was removed from the ro she was free to do that was and i don't not on the basis that she did camarade i used data sets for population as a denominator and active voters as the numerator she said the calculations are misleading while there was another expert who testified that what camerata did that was methodologically unsound was he overstated one and understated the other he did and the over statement and under the law or i'm saying is that was his account and the trial judge tros to believe the second expert who basically undermined the credibility or believe ability of the first expert i might have read it differently but the question is whether or not the district judge committed clear error in discrediting one expert and crediting an author i understand the point you're making goes beyond and has less to do with camerata than with something else but i'm just asking with respect camaraderie she was free to discard camerata wasn't the question is our committing clear and you know i don't think so your honor and here's why and the counter expert was pointedly asked well what are your registration rates to show because the issue is is the registration rate in broward county unbelievably reasonably implausibly high compared to the average nationwide and elsewhere in florida nationwide the average registration rate is about sixty five percent and in broward county it was nearly one hundred percent and the attack on mr cameron as methodology amounts to about zero point three percent difference so instead of ninety seven point six percent it would have been ninety seven point three percent  the reason the other expert never actually gave his dad on what his analysis it shows because it would make the exact same point that the difference was immaterial if they offer any data on the point the death the data is in the record you know no actual registration right before the election and the understates the denominator which was population because the population data comes from july rather than october but you know if you look at the population growth rates and add three more months and it is an immaterial difference to the point which is the registration rates in broward county approaching one hundred percent whether it's ninety six point six or ninety six point three percent they are implausibly high compared to the average in florida and nationwide and i think that was the point that camerata was trying to make and it was also the point that mr gessler relied on to demonstrate one of the things that ought to trigger a more sustained review of our processes is is these unbelievably high registration rates and that that was a unrebutted testimony by the expert and then again you can you can look at that i mean the data when mr gessler introduces the data on the registration rates and you can look in an extrapolation the numbers you can see that the rejection of mr kamerad it was over an immaterial me ask you slightly different question we've gone over and i'm going to give you your full we're bottle time it's an important case and we're looking for all the assert they didn't i'm not sure i understand how you can say that in the face of the evidence we have here including your own expert gessler who noted that he had quote learned that the secretary of state's office does provide the social security death index which i think is reasonable and proper and i by no means think that the supervisor was an error in relying upon that i think it's a good thing that's happening well the next statement is but they do not but they admit that they don't use the s s so security cumulative death index and the reason that significant is is that the state health records i understand about the cumulative but they use the s s d i did they not  are in the record they had they admitted in response in iraq authorities that they didn't they admitted during the course of the trial that they didn't know whether the state did is it still your position they didn't use the s s our position was that there was no evidence that they did in the record mr dessler then subsequently found out that the state may use it well don't actually yes lawyer said mystery's yes yes he says unambiguous lee he learned that the secretary of state provides  s index that's reasonable and proper and the supervisor did not make a mistake was not in error in relying on it well what we never connected the dots between whether that's part of the information that the secretary of state sends down to the supervisor but that's not my point the point is on the can you know but that's my question mystery's yeah mr gessler subsequently learned it says on the last day of trial that and we fairly read into this record as a fact that they relied on and they use the s s the what we learned as a fact is that the secretary of state did that we didn't ever learn in the record that that was actually transmitted down to the county supervisors i suppose we can assume it was  would guess like said well he had learned that the secretary of state office does provide the social security death index provide not that it has which i think is reasonable and by no means i think that the supervisor would not have been in  and relying upon that it's a good thing that that's happening yet again we don't know the extent of that connection might my point is that your expert was wrong on that assertion no your honor your honor we didn't they had stated earlier in the case that they didn't know whether the secretary of state use that information and therefore they didn't know whether they were getting it that mr gessler subsequently found that out we still don't have the actual connection is that being put into the record into the information that the state is passing down to the supervisor but that's not my main point here my main point goes back to guess there's other point that it's critically important that they use the cumulative so security index because the so security death index only picks up people at a particular point in time if you make an error and don't remove that person from the rolls then or if there is fraud going on with people harvesting names from the cemeteries and then registering to vote by not using the cumulative death and x you are not picking up those ineligible voters at all and as mr gessler goes on after making those statements he then retakes about the cumulative death index being a critical component of what a reasonable election supervisor would do to maintain your maintain current why is a county official the proper defendant and the suit rather than the state or a state official obviously these burdens in the statute or on the states rather than on the counties and i think the eighth circuit decision here in the missouri case is i think directly on point the government sued only the state and the issue there was can the state be held liable to enforce and v r a compliance against the local officials what they held there was that the obligation on the state is not to comply with the n p r a but also to ensure compliance wherever that occurs and in florida the client's obligations have been divided between the secretary of state and the local county supervisors so the county supervisors are standing in the shoes of the state when they do leave when they meet their list maintenance obligations imposed by the n b r a and i think the district court on that in denying the motion to dismiss on those grounds is absolutely correct it is a little bit different than what  write the circuit was looking at the opposite side of the coin that they were but that but the implication there was we can't hold the state liable for the things that the state laws have delegated to the local the local officials they are the ones that carry the obligation under the n b r a we're the one we've sued the local official who carries that obligation i take it that's true statewide that on the sixty seven counties in the state of florida each of them assume these obligations that's correct counties are constitutionally created offices or they're not yes and by the state and so the reference to the word state in the n b r a just says someplace in the state these obligations have to be fulfilled and as a matter of state law in florida those obligations are filled partly by the secretar state's office but largely by the county supervisors offices that vary from state to state what it would it depend on how the state had set up its particular election responsibility it could very well differ state by state and in the missouri case the court there recognizes that some obligations are retained by the secretary of state others are delegated to the local officials but it's your position that every every obligation that you are suing on here is one for it's the authority has been delegated to the county officials that's correct the list maintenance obligations now some of the data to do that list maintenance complication comes from the secretary of state they're checking of the state vital records  all security death index a judge marcus and i were just discussing to the extent that comes down from the secretary state the original data collection is done there but it is the obligation of the local elected official the local election official to implement that data and clean and make sure that the rolls which are still at operation is found in state law itself that's found in state law itself yet laura law the way the florida regime is structured if i have it right is it puts certain obligations on the state and gives express and explicit instructions that the county has obligations as well and they are blah blah blah blah blah that's right your honor and to go back to one of your earlier questions on where was there a blatant violation of  a's obligations as this two year period were not a single in eligible voter was removed from the list i understand that factual and it also violates state law section ninety eight dash point zero six five which specifically requires that by december thirty first of every year they remove all of the inactive that had timed out on the ineligibility period you can't get two full years without complying i'm going to have to bring this to a close will give me your four minutes for a bottle thanks very much good morning runners may please the court my name is jessica ring amundson and i represent the intervenor aptly eleven ninety nine sci united your honors are planned this morning is that i would spend approximately the first ten minutes of our time addressing the legal requirements of the n p r a and the reasonable effort standard mr joseph jerone who represents a broward county supervisor of elections will then address the just the court's findings that the supervisor in fact fully complied with that standard your honors because this is the only claim in this case is for violation of section eight of the n b r a i would like to begin as judge marcus did with the pla text of that statute and specifically section eight a for which can be found at pages two eighty three a of the statutory denham in our blue brief section eighty four requires that the state quote conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official list from the list of eligible voters by reason of the death of the registrant or change in residence of the registrant there is no ambiguity in that requirement as the district court correctly found a state must have a general program but that general program is limited in two important respects it is limited to those who have died or changed residence and it is limited in that a state must only make reasonable efforts to remove those who have died or changed residence the district courts conclusion about the requirements of the n p r a is fully consistent with that of the third circuit which found in the a c are you vs philadelphia case that quote by its terms the mandatory language in section eight for only applies to registrants who have died or moved away conclusion is also fully consistent with the legislative history of the n b r a which is quoted at page six of our blue brief which states as judge marcus was discussing before states are permitted to remove the names of eligible voters from the rolls at the request of the voter or as provided by state law by reason of mental incapacity or criminal conviction in addition states are required to conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists by reason of death or change in residence they see are you essentially asking this court to read section eighty four as if it stopped midway through as if it says that states must simply conduct a general program to remove the names of ineligible voters from the list of eligible voters but of course the statute does not stop there it goes on to direct states which voters must be found and removed those who have died and those who have changed residents to be sure states can and florida in fact does also have general programs of list maintenance to look for voters who  have lost eligibility by way of criminal in can a criminal conviction or have been found mentally incapacitated but those are not mandated by the end v r a those are simply programs that the state has chosen and the reason that the n p r a does that is because as mr eastman stated states have different requirements not all states require removal for a criminal conviction or mental incapacity what's your proposed reading of the section that you were there from the other the state has any program to remove the voter that systematic program must be completed within before ninety days before the next election and in fact that's exactly how this court read that exact provision in the r c a actually a protective program it's supposed to protect the voters on the rolls when the risk of a run yes deprivation of the right to vote is the highest which is the ninety days before the election and that's exactly what this court found in arceo the other provision in the n p r a that mr eastman pointed to was section eighty one and while he reads that as somehow imposing some mandatory lists maintenance obligation on the state or supervisors of elections in fact again that is a protective provision designed to further the n v ari's purposes of increasing the numbers of eligible voters on the rolls it's actually requires supervisors of elections to ensure that any eligible applicant is registered to vote in an election provided that they submit their their voter registration application in time etc mr eastman also pointed to the help america vote act or have but as judge marcus stated hava does not impose any new obligations that are not already found on the n p r a in terms of categories of people that must be found and removed from the rolls  to the extent that how the does impose any new obligations hava is is not private there is no private right of action under hama it can be enforced only by the attorney general or through a state created in ministr scheme when congress in hava one to two actually amend the n b r a it did so explicitly in section nine zero three of hava it explicitly amended the n p r a with respect to clarification of the supervisors or of the state nevertheless congress felt obliged in harvard to go beyond the language that appeared originally it said among other things a system of  maintenance that makes a reasonable effort it mandates that the states implement a system of file maintenance that makes a reasonable effort to remove registrants or ineligible to vote from the official list of eligible voters under such a system consistent with the national voter registration act registrants who have not responded to notice and have not voted in two consecutive elections for federal office shall be removed so it goes beyond well your honor it's important to understand the context of how so have it wasn't acted in in response to the election of two thousand and essentially how it was all about getting states to update and modernize their election systems both are action equipment and there are the lists and so have a for the first time imposed upon states the obligation to keep a computerized list and really all that it is doing throughout hava is imposing the same obligations that are in the end you are a true the new system of computerized lists so as your honor just read under such system consistent with the n p r a registrants who have not voted in two consecutive election general elections shall be removed except that no registrant may be removed solely by by reason of failure to vote that of course is the provision that the court the supreme court was interpreting in the hugh stead case but the point your honor is that a c r you read hava as it as  imposing mandates upon the state to look for categories of persons beyond those that are required by the n p r a and again section eighty four cannot be clearer that the only general program that a state is mandated to have is a general program to remove ineligible voters who have died or who have moved away your honour's if i can move to the district courts reasonable effort standard the district court correctly held that the reasonable effort standard under section eight day is met if the county uses national change of address information or n c information supplied by the us post office or similarly reliable information i'm garnered from other sources such as mass mailings or targeted mailings to identify registrants who have changed residence and uses information from the state health department or similarly reliable sources to identify voters who have died the a c r use contention is that the reasonable effort standard should be equated with a professional standard of care and really what the is arguing is that the district court was obligated to accept the opinion of its expert about what constitutes a general program that makes a reasonable effort to remove ineligible voters the a c l u actually faults the district court for quote substituting its judgment for that of the a c r use expert but of course the district court did what district courts do in any situation it evaluated the expert testimony that was before it it weighed that expert testimony against the documentary evidence and lay witness testimony in the record and it gave the that expert testimony the weight that the district court felt it deserved the district was under no obligation to simply accept the a c r use expert and beyond having no legal foundation professional standard of care standard that the a c l u urges also unworkable as it essentially means that the you would have an expert in every case opining record tori but mandatory on the supervisor of elections in the state see to a set as a state shall complete not later than ninety days prior to the date of the primary or general election for federal office any program the purpose of which is to systematically remove the names of ineligible voters from the official lists of eligible voters your position is it's simply a timing statement it's what it was designed to do it didn't expand or contract the obligation other than to put a time deadline on for the completion yes your honor our position is that what's mandated is a program to remove voters who have died or changed residence what's optional is a program to remove voters by reason of criminal conviction or mentally i know i understand there are other reasons too to be read see to aid to be read as relating both to a three and a four when congress wrote this requirement that the state shall complete no more than ninety days prior to the primary or the general election and he program the purpose of which is to systematically remove the names  of in eligible voters it was referring not simply day four but also to any program that was conducted pursuant to a three as well is that a fair reading that's a fair reading your honor and you can see that also from the the exceptions to the ninety day provisions so which refer back to the categories of people that are also in a three as well as a four so essentially what what and  this court interpreted this exact provision in the r c a case and says that what this means is that if the state has any program whether that program be the mandatory program for death or change of residence or whether it be a program that the state has undertaken in the r c a case the state undertook a program a systematic program to attempt to remove non citizens from the rolls and this court read this provision as applying both to the mandatory as well names of individuals who have died or who have changed residences in my short time i wanted to address some of the factual questions that the panel alice start with change of addresses other than getting the post office data and using your vendor and i understand how that process works is there any other program to remove those who have changed addresses certainly the other th process through the post office yes your honor the other programs include mass mailing of not forwardable mail the trial court concluded were lying upon the testimony of witnesses at trial as i was dug out in time of that mass mailing the supervisor's office also uses through the department of highway safety and motor vehicle information provided to the department of state the department of state and provides that same information to the supervisor's office in all of that how do you explain that nobody was removed during that twenty thirteen twenty fifteen period if in fact that factor at the trial court was exactly right of this gap it was just that it was unexplained ok that you concede there was evidence nobody was removed between thirteen and fifteen which can feed your honor that there is another one hundred thirty thousand moved fifteen to seventeen will get to that in a minute but nobody's ours nobody removed from change of residence for two years old can feed your honor that there is a document in the record which reflects that no one was removed for these two years however a supervisor of people are removed due to change of address i guess seventeen to eighteen are the numbers that were provided in the record are the numbers from january two thousand and fifteen to two thousand and seven january two thousand and seventeen and that's nobody of that number one hundred eighty thousand roughly were an act of voters who were removed ok so that as of january what you say fifteen january other fifteen to two thousand ok and there's also how do you explain the fact that during a two year period of time they were moved no one your honor as the trial court states that  one reasonably infer from the failure to remove anyone that they didn't do anything that it's inexplicable that no one would have been removed for twenty four months that's the heart of his argument yes that in the figures that kamerad offered right that's the that's the ballgame from his perspective exact the question is whether or not those two facts are enough explain no one being removed for twenty four months and yet still say that the supervisor of elections complied with the requirements of law  so even assuming that you're right about reading the statute yes with respect to people moving people die in so i would concede to your honor that the what there was no one removes on account of death there is a record reflecting that no one would know it's your honor that was that just with respect that was a change of residence i guess change or with respect to removing people on account of death the record will reflect that they were a number of folks who were removed due to a change of residence and having gone to jail i just want to be clear on this the record reflects that in fact they removed people on account of death during the two year period that ran from january thirteenth to january fifteenth do i have that correct your honor i am unaware of whether there is a statistics of the number of people removed on death for that particular period of time but i know there's a there's record evidence that at some point people were moved on account of death yes the fraud and you also put in evidence that suggested that whenever someone died and the state picked it up they would refer it to the county and the counties testimony was we input and remove those people on a daily basis that's correct your honor so were people removed during that two year period on account of  e although i am unaware of the data points that would reflect that the testimony at trial from the supervisors witnesses indicated that these individuals were removed on your what's yours when you say datapoint you mean you can't tell me how many i can't tell you how many that's what you mean by data point yes your honor though from the january two thousand and fourteen ok so now let's talk about then the all the thing so his argument really is zeroing in on people who were not removed on account of the fact that they had moved no one was removed for two year period it's inexplicable to me that in the county as large as broward county that nobody moved in a two year period your how do we account for the fact that no one is taken off the list on account of this this issue of moving your honor it could be over range in residence of the  the registry and it was there anything that was put in front of the district judge court to explain the district court stated that it was unexplained this particular certification indicating that  individuals were not removed from now the document number on the certification you're talking about to your certification the certification the docket number  is if you don't have it i don't want take too much of your time it's not right there it's because the language at the sort of fit cation just that just say change of address what is the certification i thought it was about the whole really yes there were no changes nobody but i could be wrong it may have been limited to a change of address your honor i don't have that particular certification in front of me it's attached to the words report ok and if i am corrine correct that it is not now if somebody had moved but moved within the county they wouldn't be removed right if someone had moved within the county no they would have their address changed so that people who may have moved and weren't counted because they still remain registered voters in broward but nevertheless presumably some people moved out of broward county over a two year period you know i said i certainly agree your honor that people certainly moved out of the county  however what this evidence is is certainly i would concede your honor that it is poor testimony and reflects badly however and if that were the only point to the only evidence in the record not a question of testimony it's a that they were moved no one on account of having a change residence testimony was there any testimony that any efforts were made during that time period re there exists also the testimony from the witnesses at trial stating we removed people in addition and if if the doctor let me stop you at that point there was testimony that people were actually removed even though the certification didn't indicate yes your honor there is also for example evidence they testify that no one forwardable mailings were sent out even though the certifications didn't originate to this time period thirteen to fifteen did they say during the year fourteen no we did or do they just talk about generally we've always made efforts to remove people were changed i believe it is it was the general change just a general statement we make efforts in our office and there's  a cross as to the time period let me just general statement as your last a little bit further on that point i take it there is testimony in the record that in fact during this timeframe i'm talking about thirteen to fifteen that the board of elections in broward county used to beth and ology that we have already been speaking about right right what did they say they did during that time frame use the postal method and mass mailings at the same time during that timeframe yes your honor and the trial court stated that it was found evidence that list maintenance was going on because these millions of mailings were sent out notice here is my question they're continuing to do what they were required to do and what they did subsequently between fifteen and seventeen and yet the certification says no one is removed although they in fact say they did remove people right where they asked in words or substance to explain this disconnect between what they did and what the certifications said i am not aware of that they were asked those specific of the professor smith testified that the data that their expert used was misleading and under simply undermined that doubt has credibility and weight over the supervisor did not put any affirmative data  references that were used in this case were incompatible with one another that the consequence of that was completely misleading that's just racial odd date an october day is that what you're talking about yes your honor so that they they took the number of registered voters in july to the population count as of october is that the discrepancy that was used to know the discrepancy that's being used is that the the number of the registration rate is right before a federal judge general election when registration has at its highest that is that in october in october are october versus a everybody's registered to vote let's take a even if you have averaging i'll take ten point ten points off of it or he says three or four but even if it's off by some it's inconsistent with other counties in florida everyplace else in the country i don't know what your responses to that initial your order is the actual registration rate is not in the indicated that upon his review of the maintenance system going on he reviewed the numbers of people being taken off and added to the registration or not and not added to but just taken off that he stated that reasonable less not my question or apologize i thought you said that he reviewed something that predated fifteen that's that's correct january went from january fourteenth to january of sixteen december two th he looked at one of the two years for which there was no or suppose there were the the certification related to a yes so in essence he looked at the period from fourteen fifteen sixteen and seventeen he just didn't look at thirteen i'm just trying to boil it down to make it easy for myself do i have that right yes ron i believe so well if his explanation about why he saw reason efforts and fourteen was it something we haven't talked about yet know he would he looked at the numbers he looked out of people being removed noticed addresses being changed and he testified that this was indicative of reasonable less maintenance occurring so did he find that it was reasonable that no one had to believe that no one had moved out of the county in twenty fourteen i don't know i don't believe he commented specifically on those certifications your honor  i just want to get this right neither lawyer asked smith whether was reasonable that no one was removed for that one year period your honor the testimony regarding this this two year period was fairly brief and the trial is primarily part of mr gessler is testimony that the supervisor's office practiced in consistent list maintenance and he stated that it was an reasonable  for a two year period no one would be removed nevertheless this argument that it was inconsistent and under and therefore unreasonable was provided by the subsequent testimony showing numerous people were in fact being removed  during these years because of registration movement these years being thirteen to fifteen understand we're not concerned about fifteen to seventeen the numbers are high the philco point is on the certification and thirteen to fifteen right where the experts asked to explain how no one was removed we had period i do not believe that professor smith was assets as a question no thank you thank you and you have reserved four minutes so there's a lot to go over all see if i can do it let me just try and clear up some of the things in the record judge hall you're asking about the removal of death versus change of address voters all of certifications the process for removing somebody for change of address is a multi step process mandated by the n b r a we first got to identify that they've moved we've got to send them a notice if they don't respond to the notice we put them on ok and on the certifications there are separate lines for how many people were removed for death on each of the semi annual certifications and also the number of inactive voters those because of the change of address that have been put into inactive status and then after two federal elections are supposed to be removed and the individual certificates both the original certificates and the doctored or amended ones that were subsequently and sixteen first half of the year fifty eight hundred seventy eight remove for death on twenty fifteen first half of the year six thousand nine hundred seventy remove for death but on both of those zero to seventeen dash six where the amended certificate but those numbers are the same or roughly the same on both the summary chart that was put together that indicates all of this for the inactive removal those for this district court exclude your expert testimony entirely with regard to the registration rights are just found not credible or defective i'm tom a total exclusion versus really it was not it was not totally excluded it was admitted into evidence you found it misleading because of the calculations and your honor was exactly right that the difference the population data was from july because that's the data that's available from the  american community survey from the census bureau they average the month over the year and then they take that midpoint on the year to be the years population data so everybody uses that it wasn't totally excluded she just gave it little white misleading yeah but but and i want to correct one thing it wasn't three point differential it was a point three point differential when you actually look at the day out of a difference but if i if i if i adjust the july population data to account for the increases over the next three months it gives me a point three difference what the rate would be from ninety seven point six down to ninety seven point three this is immaterial counsel for the county also said that that registrations tend to spike right before federal elections is that typical for it to by ninety seven percent no it doesn't and it's not a misleading number to use the actual registrations before the election that was the actual registrations it's simply false to claim that that was an inflated number it was the actual registrations nationwide we go from like sixty five percent in non presidential election years up to seventy one percent in presidential election years we don't get anywhere near one hundred percent which is what we have in broward county and that our expert testify and i will say professor smith was not offered as an expert on election administration he was typically offered as a political science esper to address the dad i mean read to you what judge blum found after trying the case i'm reading from pages nineteen and twenty of her opening in effort to go in through what she excluding those registered voters who are not physically present at the time of the survey while at the same time his chosen numerator inflates the number of registered voters including the same population these data says do not allow for an accurate comparison similarly camarade as use of the five year period two or one for data which accounts for population in july of twelve does not reflect the population numbers in existence in october twelve the net effect she writes here is that kamerad as compared voter registration numbers when they are high at their all time high to population estimates from july of twelve she rejects the comparison and says given the foregoing quote the court finds that the registration rates presented by a c r u are inaccurate a c r use argument that broward county's registration rates are unreadably high is therefore unsupported by any credible evidence and necessarily fails to support a c r s contention that snipes failed to comply with the n v are a list maintenance requirement now she may have been wrong she may have been clearly wrong you may be right that there's clear era in the determination but i don't know how to read this other than to say she rejected kamerad as analysis kamerad as numbers and the critical inference that you would have her draw from camera is testimony my mis reading this i'll disagree that it was such a critical inference because that's not what i'm misreading what she found no you're not misreading what she found ok but but i will say that  e mr camarade is evidence included a chart that has both the one year population data as well as the five year he did not rely on the five year the five year bolsters the registration rate even more because she was right about this judge bloom was right about this the five year data looks back to an average point in the five years that's two and a half years old data so that would be inflated or not but the conclusion she draws from all of this is your argument that the registration rates were unreasonably high is unsupported by the credible evidence and that i disagree with because they but that's a finding of fact as i would have to show me that it's clearly erroneous will give you another minute to finish up ok so only one minute counts that we've already gone ok way over all right all right well let me because i want to because there's another point here that i want to make and that is whether they were complied even on the on the mass mailings the record it makes very clear that for example the mass mailings t certificates say there were no mass mailings they then amended the certificates to say there were but they had no idea what the mass mailings do the state law required that they be non forwardable they testified oh yeah they must have been on for a while but but the evidence in the record actually has the mailing pieces specifically says that they are forwardable mails this kind of inability to even know what they were doing it was manifest throughout the record i think the cum ulative effect of all of that as testified to unrebutted by mr dessler what and then when you add the fact that not a single person was removed for two years his his says this is manifestly evidence that is not a systematic system of voter list maintenance going on even with respect to change of address and that doesn't even begin to get to section c two's obligation and it's not just our statement on this it's the federal government's statement thank you all we're going to take a ten minute break when we come back we'll finish up with the last