if this court does not enjoying the challenge provisions of house bill five eighty nine north carolinians who should be able to vote in the november elections will be prevented from doing so and that disenfranchisement can be prevented by simply having election administrators administer elections the way they have for years this circuit reviews the decision to grant or deny a pulmonary injunction for abuse of discretion and abuse of discretion is present if the court below mis apprehended the law on the underlying issues in litigation the district court made critical legal errors that require this court's intervention the severe irreparable harm that flows from an injury to the right to vote when weighed against the meritless justifications pro voting tens of thousands of voters will be unable to vote and will have no steps they can take to ameliorate their situation under the pre hospital five eighty nine system a voter who showed up to early voting to find there was a problem with his registration be it from a clerical error or a purging etc could take steps to rectify the situation and vote a regular ballot the brennan amicus brief at page six shares  report that was recently issued describing a veteran returned from eighteen months tour of duty in afghanistan went to early vote found his registration was not on the record find that the bird here is not severe the fourth circuit has been clear in mclaughlin in footnote six mclaughlin court said even if the burden is not severe a rational regulation can still be invalidated when the state's interests that are served are minor and here with with a proper application of the burdick balancing test i think the court can't help but conclude that the burdens are much more than minor are in fact severe and this context correct i think that anderson verdict has been a political since before crawford it's the most recent as time supreme court has said that analysis like this case is that certainly and and they applied that analysis and justice stevens in the plurality controlling opinion noted that what saved the voter id requirement in indiana was the fact that voters had a way to rectify their situation and he specifically examined the situation where a voter goes on election day does not have an id what saved it for justice stevens was that the voter could then go back sign an affidavit of saying he couldn't afford or couldn't get an id and his vote could be counted that is dramatically distinguished from the situation we have in front of us here if a voter goes during early voting and there's a problem there is nothing he can do to merely rate if a voter shows up at the wrong precinct at seven fifteen pm on election day there is nothing that voter can do under house bill five eighty nine to ameliorate so you would distinguish you from the supreme court's recent supreme court case on the amount of burden that the state is that is that the basis it's distinguished both on the burden and the justification so that's one i guess it more correctly you would say that there isn't as much justification here absolutely and the case that we handed out from the sixth circuit that came down yesterday the state justifications in ohio for a cut to early voting and a repeal of the or equivalent of same day registration where the exact same justifications proffered in this case and the district court in the sixth circuit found  demonstrably larger for example in in two thousand and ten perhaps the most comparable election two hundred over two hundred thousand voters voted during the eliminated days of early voting over twenty one thousand voters either corrected or newly registered using same day registration and six thousand voters had their ballots counted because of out of precinct provisional balloting how do the statistics come here with the primary year that was held under the news the in the primary recently there were a million votes cast in november we can expect roughly three times as many you know how does the primary under the new system  for worse here in the for yes absolutely your honor and still and still that doesn't end the inquiry because voters are and were disenfranchised under this new law gloria hill from the whole county board of elections testified that during the primaries she saw forty voters leave early voting while she was watching because they were not registered that during the most recent press during the most recent yet knowing and asked for a preliminary injunction before the primary did the scheduling order that we were put on put on with judge peak was entered in december and didn't really there wasn't really the possibility for that to happen preliminary injunction to leave ninety no certainly not i don't know i'm not familiar with any schedule certainly not your honor that there was a deadline for the filing of pulmonary injunctions and there was a substantial amount of discovery that needed to be done the elections in november again anticipated three to four times the volume and and this doesn't you know if we hadn't had a primary and hadn't had any stories to tell we might have been in the in the even harder situation then we find ourselves today but the reality is is that under the proper application you haven't directly answered my question i'm sorry really continued presage i know you have other things to say but can i take from this that you cannot make the same kind of case when you compare the primary under the new system if you could under the old system the kind of statistical case you've been making in your papers with respect to the different elections well same day what i think the answer is no there were there wasn't same day registration so i can't tell you how many people would have used it likewise out of precinct provisional ballots weren't count counted it's not in the record it's in the report in the brennan center but we're looking at in the hundreds of out of precinct provisional ballots cast and counted but election administrators were telling people your ballots won't be counted so why would you cast a provisional ballot why bother if you knew it wouldn't be counted whereas it was under the prior l a different election in that the percentage of voters voting in a particular primary may be somewhat different certainly is always lower than the general election does it matter that a fair comparison one of the facts here were the previous system the numbers in the make up of the electorate make that comparison a little bit different there's ample evidence in the record on why primary elections tend to be the most excited most partisan most eager voters least likely to be affected sixth circuit also addressed the fact that yesterday that every election provides some sort of information so even the presidential election is informative and the numbers that i've been citing are all from the two thousand and ten primary they're even more stunning when you talk and i would like to discuss the balance of equities here with reinstating the counting of out of precinct provisional voting it would take zero lead time for the state to reinstate that all they have to do is instruct election officials to count provisional ballots after the election with regard to same day registration same day registration is enabled by an on early voting present a totally different situation seven days you'd have to reconfigure the way in which is going which is not very long now that's a different situation respectfully your honor it's a little different but the structure for early voting still exists if the injunction was entered all that would change was that would be that early voting would be offered at the county boards of elections starting seven days earlier counties that have already finished their plans can leave them as is and the provision north carolina general statute one sixty three dash two to seven point two just allows for the county boards to be open during weekdays starting seven day which if you enjoyed it would be seven days sooner and in fact eighty five counties in november have an early voting site as their county board of elections office or in the same building does it matter if you know that  know two reasons why that that doesn't completely solve the situation you're on or first is that election hours aren't fungible people like to vote at lunch and this is on the record people like to vote at lunch and right after work so adding an extra hour in the morning or an extra hour in the evening doesn't change the fact that you've taken away days opportunities for voters to go additionally the undisputed evidence in the record is that voters become habituated to early voting they final before voting day eighteen percent of voters who had voted on that eliminated sunday in two thousand and eight didn't go back and vote in two thousand and twelve they tracked them by number so there is a demonstrably will fall off people who cannot adjust going back very quickly to reinstating same day registration i point your honour's to the deposition testimony of mark first who is the i t director for the state board of elections at j five eighty to eighty one he describes this online application that's been run before has been tested before just needs to be put back up online as part of seams and the problem is solved this is i apologise she's she's a very nice lady she her her testimony was i i don't believe was that she couldn't get it done every election administered outlay blind no i mean it may be wrong but it's in the record there are always be some administrative burden on the state in administering elections that's just the reality it's being weighed against the fundamental right to vote and the fact that if you look at both the character and the nature of the burden on the right to vote here in north carolina it's substantial the district court erred by applying a binary rational basis or strict scrutiny they did not apply the heightened scrutiny required under the law and that was a critical legal error that led them to the wrong conclusion we otherwise proved all of the points we needed to for an injunction i see i am out of time  may please the court i am penda hair and i will address appellant section two claims and i request to reserve five minutes for rebuttal in shelby county beholder the supreme court describe section two as a nationwide ban on discrimination in voting section two prohibits voting practices that result in denial or abridgment of the right to vote and the test is whether the challenge to practice results in a political process that's not equally open to minority voters and as the supreme court held it sent me and well you determine yes yes your honor the supreme court in the gene gols case i think gives us  guide post the court there said that the essence of a section two claim is that a challenge to law interacts with social and historical conditions to result in an inequality in opportunities enjoy by white and minority voters to participate in the political process and the senate report on the one nine hundred eighty two amendments to section two which gave us this results tess makes it very clear in the jingoes case makes very clear that this is a broad law intended not just to prevent discrimination that actually occurs in the voting process but to prevent social and economic disadvantage as that are caused by a history of racial discrimination from being imported into the voting into the voting process so we believe that the district court below made several legal errors in analyzing section two and that when those legal errors are are corrected that it is clear that we did establish a likelihood of sense that yes on the on the claims that we made below and i'd like to walk through the legal errors that that the district court in court may first on same day registration and out of precinct voting and then on early voting and in this case the the findings that were made by the district court we believe actually support and compel a conclusion that section two is violated the district court made the finding that african americans use same day registration and out of precinct voting at roughly twice the rate of whites and the court also found that repealing these actresses would quote bear more heavily on african americans and that's one part of the jingoes test that is the adverse impact and then the second part of the jingles test is the cause of the adverse impact and again the district court made findings that african americans in this state suffer from  severe social and economic disadvantages and that those disadvantage as are directly impact their ability to vote lack of transportation thirty four percent of the african americans bar to voting but a burden on voting that is an equal so when the district court pointed to the other ways of voting which are made available under the federal national voter registration act those those ways of voting have been required by congress since one thousand nine hundred ninety five and implemented in the state of north carolina but what the record shows is that when african american registration started really increasing was when same day registration was brought into effect in two thousand and seven so that and the district court there's no evidence in the record that these other methods of registration actually work for african americans all the district court did was just cite to the to the federal law are not we believe that the district court committed legal error when it described the burden of repeal of these provisions as a mere preference and we believe that that is true because the district court made the finding that the social and economic conditions and disadvantages of african americans in this state which the district court also found stem from racial discrimination those shows on economic disadvantage court in our view went to the brink of making a correct application of section two in the fat findings and then the and then it and then the district court stepped back and said well these other factors that i'm going to take into account that are going to cause me to rule against a likelihood of success and one of the other factors is the district court said that would be improper importation of the retrogression standard and i just want to be clear that that pla have never sought the retrogression standard which measures how african americans are treated under the against each other under the under the current plan versus how african americans were treated under the prior  contention is that african americans with the repeal of these provisions are going to be treated equally as compared to whites and that's the section two standard and arc and we believe though that the evidence of how african americans used a same day registration and out of precinct voting is it is relevant and the sixth circuit yesterday explained that very clearly that the evidence is relevant in addressing the ultimate section two question which is how african americans will fare compared to whites under this new system and  were we are seeking to preserve the status quo as it existed in the last uncontested state of affairs between the two parties and that we believe is a prohibitory and junction let me just turn very briefly to another error that the district court made and that is in its analysis of that of the tenuous or tenuousness or non tenuous of the state's interest in this law and i want to start with out of precinct voting is the district court beyond again disparate impact connected to social and economic conditions that caused african americans to to use  need to out of precinct voting more them why and that to me is a classic section two violation for the jingles case but the court then said i'm not going to find a second to violation because so few voters use these ballots that the impact is minimal and we believe that that is legal error because the test under the voting rights act is not whether the number of voters that are impacted but whether there is a quality and the district court's own findings make clear that african americans use out of precinct ballots more often than whites because  of they as mr riggs said you can be at the precinct at seven fifteen in the evening you're at the wrong place and you have no transportation to get to the to the correct precinct and under the under the new system your ballot just won't that has gone out but with with respect to out of precinct ballots the state has to offer provisional ballots in any event federal law requires that so that even following that wisconsin yes your honor and apparently things are in to that kind of mass confusion because the voters in this state have been using these methods and we're just asking that the court allow the voters to vote this year the way that they voted in two thousand and twelve and two thousand and ten and i see that my and also a fourteenth amendment challenge akin to the the burdock challenge that you heard argument on before this is been a curious proceeding for the twenty sixth amendment cl because despite several rounds of briefing and a lengthy hearing the state has never contested are likely to success and now once they had an opportunity to address our motion for an injunction and an appeal with this court and they fail to do so well you do have a rather novel argument you don't your honor i don't believe it is a novel argument is an argument grounded in the plain text of the us constitution the twenty sixth amendment states the right of citizens the united states who are eighteen years of age or older to vote shall not be denied or abridged by the united states or by any state on account of age that language mirrors identical with the exception obviously i want to on account of age the fifteenth amendment and the one thousand the men the legislative history in the passage of that amendment could not have been plainer they intended to make the twenty sixth amendment coextensive nineteen and twenty one year olds yeah the purpose of the amendment your honor was to it is sometimes referred to as the eighteen year old right to vote amendment well for example somebody fifty years old according to you would also you could also be governing them right absolutely everybody in the that we pointed to the pre registration the repeal of preregistration of sixteen and seventeen year olds as an industry under arlington heights of what the legislature had in mind right because legislators don't come out and say let us discriminate against its eighteen year old one terrell twenty year old because we don't voting in our elections the fact is we have the twenty six amendment because lots of states didn't want one thousand nine hundred twenty one to twenty year old and twenty one year olds voting in their elections and congress passed a constitutional amendment which was ratified by the states to tell states they can't deny or abridge they can't bridge the right to vote of those of that class just they can't do it based on race they can't do it are kind of vague so why did we how eighteen year olds nineteen year old twenty year old twenty one twenty two year olds made it harder for them to vote because the north carolina legislature didn't want them voting in their election so how did they do that well one thing they did is they made it harder when you're sixteen and seventeen to get on the rolls to then vote when you're a kid and that's the pre registration provision not because i represent sixteen and seventeen year olds rather it's an indication of the hostility that the legislature had towards the eighteen to twenty two year olds what else did they  at the same time interestingly when they passed an id law they said well we're going to let all we're elect state ids driver's license tribal i d s but not university of north carolina id i think about that for a sec what interest with the state have  campus in the fall twenty twelve submitted a new registration form updating his residence to an on campus address he believed he had been registered he showed up and attempted to utilize early voting in the twenty twelve election and was told that he was not registered had there not been same day registration he would not have been able to vote mr duke in several of the other plaintiffs have also said that they would utilize same day registration and they would utilize early voting if they were permitted to the expert report that we submitted which is uncontested right correct your honor and shaw versus reno you didn't have a class you had a you had five others in but in mccutcheon just before the supreme court you didn't have a class you had one donor citizens united you had one have a right not to be discriminated against and have voting laws changed to make it harder for them to vote based on their age of the same day registration not deliberate same day your honor if you look at if you look at the the record and the the the expert report that we submitted you will see that say that young voters disproportionately use early voting disproportionately you same day registration disproportionately use out of precinct voting compared to other age cohorts so if you were a legislature that wanted to discriminate against young voters what you would do is repeal those things because like african americans young it was far in excess of their proportion of the population make use of those voting methods and what's important here honor though is that this is in the record and the state hasn't contested it and the trial court didn't find it and i think it's because they know that they discriminated against young voters their position is it didn't matter not that they didn't do it and so my position what i'm here to no what assists me is that the state of north carolina intentionally discriminated against this class in a way in which if i had it's not a class i'm not representing a class i'm representing individuals who fall within a class in the same way that i might what relief does the united states seek that the relief the united states asked for is every man to the district court for the application of proper standards to evaluate the section of the united states doesn't think that we should enter any injunction ourselves prior to the election we do not object to the plaintiff's request for this court to enter that injunction and that why would we be asking what the united states thinks we should do here we felt that it was appropriate for the district court offered opportunity to properly apply the legal standards however the district court really got almost all the way there and its anal so is the united states ready to foreclose or go that relief in this election not at all your honor we believe in the united states appeal and as for that really that the united states was considering whether to appeal at the time that this court issued its invitation for us to file a statement of no we do not we certainly do not object to this court immediately entering an order we've believe that there is time for the district court to go ahead and do the correct thing because the district court already has all the findings that it needs to enter in in order to enter into an area injunction section two has a tally of circumstances analysis not it's not a balancing requirement such as as applies to the constitutional claims in this case that's a tally of the circumstances analysis looks at the past and present history of the political situation in north carolina looks at the history of discrimination looks at present socio economic step circumstances of minority voters and and determine whether or not those voters will have less opportunity under the current law and we believe that the district court erred in making that analysis by discounting the importance of the history of the that the changes that north carolina had made to its voting system over the course of the two thousand with that history different from a retrogression analysis yes so and the first the supreme court has made very clear that the history of the history of a state matters in making the section two analysis in reno versus voter paris the parish the court said that it makes no sense to talk about the right to vote being a bridge without something to compare it to so what we're looking at here is not a comparison for the rights of minorities to vote today versus the rights of minorities under the prior system it's looking at whether minorities have an equal opportunity to white voters and that's what the prior system helps us see is that under that system minority registration and turnout both went up in fact the rates exceeded the rates for white voters in the two thousand and twelve election and so we know that if we go back to the system that existed prior to those changes the two thousand and what the circumstances will look like and that minorities will a bit again be less equal so what section five is talking about backsliding what section penalized we don't believe that the same thing is being penalized for doing for doing something good we're not saying our argument is not that a state can never make a voting change and then go back on that change what we're saying is that if you look at the changes that were made in two thousand and one two thousand and five two thousand and seven you can see that that equalized opportunities are helped to equalize opportunities for minorities to vote so you know that if you so ever every time you make a change that helps i can't  that it's not it's not trying to tease out just what we do do yeah sure and it's not the it's not the it's not the fact of the change in the united states view that matters what the change gives you is a comparison it gives you that comparison that both your parish is asking for and allows you to see that yes this is a system under which minorities are more equal but you could have a section two violation in a state that that had never been a right to be done to not have a section two violation in a state that has had a more favorable provision for that absolute limit and what and what would what would be the basis for that what would the rationale you would make the totality of circumstances analysis in every case so if you had a state where you didn't have factors such as the history of discrimination in voting where you didn't have a history of discrimination that had led to present socio economic burdens that film or have lay upon minorities then when you made that totality of circumstances analysis you might not find that for instance cutting back on the number of days of of early voting led to a section two violation you would really look at a case by case and that's another error the district court made here isn't that assuming that finding a violation in north carolina would mean that every other state could be could be liable but that's just not that's just not so the analysis is intensely local as the court said in jingles it's really looking at the specific jurisdiction the final error and i know my time's almost up with that the court failed to look at the cumulative effect of this law we believe that cutting back on the early voting eliminating same day registration and out of precinct balloting will have combined to create have a very heavy burden upon a minority voter and in an election in north elect peters of the north carolina attorney general's office representing the state of north carolina and the state board of elections defendants in these three cases with me at counsel table is tom far and will strike who also represent the defendants with me and which powers and bob stevens who represent the governor i will with the court's permission take up to thirty minutes to address the standard of review and to address what we've really heard very little about in this appeal and that is the judge's findings the district court judge's findings on likelihood of suffering irreparable harm then mr farrer will take the remainder of the time to discuss  the section two and fourteenth amendment arguments twenty six amendment arguments likelihood of success on the merits three legged bird say yes your honor that i have worked into the irreparable harm and i can start there because i think it's important very important to remember when the court considers this case the standard of review is a high one to begin with it's an abuse of discretion standard at least as to the courts the district court's findings of fact and those are not to be disturbed unless there is clear error the supreme court in the personal case in two thousand and six noted that there is a particularly high hurdle that needs to be considered when election laws are at issue because the closer we get to an election the more likelihood there is that changing the verdict confusion and the supreme court went so far as to say in that case as your work all the district court had denied a preliminary injunction the ninth circuit entered a preliminary injunction and the supreme court said doing that can actually contribute to voter confusion what we have in this case the election has already begun absentee voting started on september now i recognize absentee voting by mail is not one of the provisions that at issue here but nevertheless the election has already started mailings describing the rules and the procedures that are going to be followed have been is a booklet your honor it's a booklet that describes not only the procedure at that age but i believe it is around thirty pages to each other to each household in north carolina it's a combination booklet your honor it describes not only the rules and the procedures that are to be followed that important dates with the election it includes a form for voter registration it includes a form for requesting an absentee ballot and the other thing it does is include short biographies early voting is going to start with no longer be correct because that date would to change under but let me check to make sure i understand it seems to me the information would have to be changed but it would be additional information nothing in the book would would change and so far as well since the early voting which is only ten days if it moves to seventeen it just gives them more dates not less it would be quite a different circumstance if we were saying well household is the only way that pub is being publicized how the election is going to be run county boards of elections or publicising where the satellite sites those counties that will have them not all counties  will be published or party publicizing where those satellite sites are if for example the court were to order that early voting must begin seven days earlier then currently required by law it is true that the only thing that would have to happen under the previous law is that the county board of elections office would have to offer early voting during business hours on that thursday friday and monday tuesday wednesday but it's also true that the county board of elections is going to have to have personnel to handle that because the people working in the county board of like we saw shane in to another area we're still talking about out to the voters at this stage the point would be that the information that the state will have given the voters about how the election will be run about the need to go to your own precinct about all about the registration deadlines will no longer be you make a fair point in terms of what has to be done to what extent do we consider at least the whole procedure way in which is happening i mean we've got a situation in which you go back to the history of how this bill even went through the house within one day of the well i guess it was the next day after the shell the decision you're going to be all put on the floor that's a full bill there's nothing like very much like the previous bill and you move that through very quickly but the timing of when this bill went through is really something that happened in terms of state in north carolina and so if it happens that even in expediting this man this is a matter that just came to us within one week couple weeks ago or so and we move as quickly as we can find out if we find it to be to standard and on the second to i'm i'm just saying we haven't decided if we do if there is that well we're going to say well you just don't have time to do it because we can't fix these books and we've sent out these books and we knew what was out was books you had this court thing going on reality here and take it just which argues judge this is kind of what we can do here and i just look at it black letter law and forget how it really really happened but there's more to it than just there's not enough time and that's really where i'm going to how do respond i think the answer your honor is it's not a matter simply of not having time to redo the booklets it's a question of what voters expect and understand the law to be understands the procedures and requirements today and it's a if you come down to that section five because i think it's pretty clear unless you tell me something wrong was before us now section five would have allowed in many aspects six and five goes away next thing put a bill out that's has much more in it in a building that's already been debated is already on the floor then you move forward then it goes through the court system and i don't think you can say that lay has happened from the court system just wrote a very long opinion but it took a long time to do it and in turn the done it  or it was brought to the floor or to committee excuse me to committee that day and moved quickly after that that the evidence that he heard was that was not unusual in legislative practice for bills of this type or for high profile bills challenging or at least asking you about that aspect of what even seeing it wasn't something you couldn't do but in doing it how do we not consider the fact now today when if there is something here in terms of the potential impact me calling for an injunction that we have to say no you just don't have time to fix it your honor i think there are two two or three things that you would look at there the first is as the court has already noted the primary went forward under the law that the pla i'm sorry on primaries are very different in general and there's no question that they're very different but they're but you probably wouldn't change as love you just had primers there but but there testimony at the hearing of gary bartlett who for twenty some years was executive director of the state board of elections was that it takes two or three elections and by that he met primaries and general election for people to become used to the way things are done now the plaintiffs allowed it to go forward it is true that that says that you know it because your honor this isn't more than two or three elections that the other got acclimated to the old and there have been two or three to get acclimated and you think because the status quo of this case is that the law that the plaintiffs are challenging has gone forward and has been applied the status because your honor if it's two or three we're halfway there on that on that application all the way there well but the point of that as that filed primaries have a different dynamic from a general election the testimony of the former executive director was that what happens in a primary is part of what informs the public about how elections work and the election the primary in two thousand and it is also true as the court is noted that this case was filed immediately after these bills becoming law and we were in this what does this say in terms of the status quo if it basis filed at the time that the govern signs it which is pretty close to the day of the yeah what's the status quo that the status quo is that the new law has become affective at that point it has not actually been enforced so everything suffered besides correcting the pam no your honor it's again have any of your yes here on voter confusion that is what the supreme court has said is the very real risk here of changing the rules this close to an election and did you have testimony that your honor the supreme court has said that is what happens when courts change the rules this case why would any particular testimony about this record your your honor i cannot recall at this point that there was any specific testimony that were the laws an injunction to be entered forty days before the general election twenty eight days before one stop voting is set to begin and twenty one days before the plaintiffs would like for it to began i don't recall any specific testimony that doing so would create voter confusion and you recall in general that yes or on i believe there was testimony that changing the rules late in the game can create voter confusion i believe sherry pelter testified to that and i believe that michael dickerson may have as well the elections director of mecklenburg county i know it's not part of the record that was in front of judge schroeder but the declaration filed by ms struck in response to the motion to expedite or a motion for stay pending appeal i forget which goes into it in great detail elections and county boards of elections were required to begin preparing for the election once judge schroeder's decision came down saying there would be no policeman arion junction county boards of earth with regard to if an injunction is issued well your honor i think the main the primary thing we have is the obvious conclusion that the united states supreme court has reached that when courts changed the rules late in the game before an election and especially as was the case in personal where they say there are conflicting decisions  you're on i was primarily talking about voter confusion but i think that is a point well taken the reality is if the court were to enter an injunction then it's the county boards of elections that are going to have to implement that it's the county boards of seemed like to me is more informational i mean either you get it now you don't you know that your resignation you know you got brings new folks in you can't just do that something has happened and maybe even with out a precinct voting aspect of it some of it comes and but even that out of precinct voting and correct me if i'm wrong and maybe i can quite understand that it seems to me what that says is we're not talking about folks who aren't registered we talk about people who just vote in a different correct and i know that goes more toward it defraud aspect of it but i'm thinking in terms of the so called confusion in it that you say arises from the if in jail correct but with out a precinct we're talking vote as opposed to having a go i'm out on a road to the one i'm supposed to and flew life for me i don't understand and you know but that didn't matter to me i didn't mind taking it to the ground but the confusion your honor is not a very specific voter knowing what precinct to go to the confusion i am referring to is not over that i will point out that the evidence that judge schroeder heard described that the reason this happens frequently is because of those organizing get out the vote efforts who just take people to a whatever precinct is convenient for them rather than trying to find out what precinct is the appropriate person for a price per precinct for a person that is i'm sorry or on of the problem with taking people to a place to vote when the law allows them to do it would be the evidence before judge schroeder on that your honor was that the problem with that is it creates uncertainty for the part of count on the part of county boards of elections because they know how many people are registered in their precincts so they know how to plan for an election day if a bus shows up w sixty people on it who were not in that precinct who they're now going to have to process without a precinct provisional ballots not really going to be true in this election when thinking about it i go to my he's my situation when i had to live precinct maybe some maybe some unless there's something really hot that is that really a concern we're on or i think we're switching around but the question here is the question is for a preliminary injunction not whether or not that is a significant concern for this election that may be a valid question for whether or not the legislature had a valid reason for an acting the law discussing it with specific aspects of infusion this election that's kind of wild with that but it's fair that that is the issue in this case right your honor and and again with that regard to two of the four provisions at issue the early voting as people typically call it and the pre registration the judge based his ruling judge schroeder based his ruling not on the likelihood of success on the merits but on the fact that the plaintiffs had not offered clear evidence of likelihood of harm those findings are binding on the court unless you've got a line on the last two element at all which your honor we think it is very clear as we have argued from the outset to judge schroeder and here that the harm to the public in a case like this comes from certainty and comes from changing the rules of an election at the last minute and that's the harm that the public feels and when that equities are balance in that regard that has to outweigh any harm that the plaintiffs may have put forward but the bottom line is for what we are here for today judge schroeder found that as to early voting and as to pre registration the plaintiffs had not shown likelihood of harm that at most they had shown speculation of possible harm they had not shown harm those are his factual findings i have not heard the plaintiffs yet challenge those findings other than to say well yes there will be harmed but they have not shown and the state board are now going to have to implement the election under procedures they were not prepared to do they did not do in may then are not in place the plaintiffs for example say well it's just a matter of flipping a switch for same day registration to put that application back into the statewide system to allow that to work that might have been the case when mr burris gave his deposition in april well it is not the case  a constitutional right your honor the administrative burden and the right of the people to an orderly election does trump the claims that the plaintiffs have when you are i think we have to bear in mind that it's not just a matter of whether somebody goes in and is not able to vote while we were granted when anybody is not able to obviously we want everybody to vote we want everybody to vote in every election but the issue is not just whether somebody is unable to vote the issue is whether they are unable to vote and the reason they are unable to that is because they did not have an equal opportunity to other voters equal opportunity of vailable to them to vote or to register to vote and with all four of these provisions that are additional judge schroeder found with regard to early voting with regard to pre registration no harm shine with regard to same day registration and with regard to out of precinct provisional balloting judge schroeder found as fact that there were other means of vailable to people that placed them on an equal basis so that there was your honor finally i would simply say we believe that not only is issuing an injunction and overturning judges right or wrong but as the supreme court has noted it could create a great deal of confusion should the court be inclined to issue an injunction we do ask the court to enter a stay of that order pending appeal to the supreme court if we need to file a paper motion to that effect we will be glad  issue judge schroeder did it based on his findings of the evidence not on the basis of an error of law his finding of the evidence the plaintiffs have not challenge his findings they have not challenged or shown how the record does not support his findings and of course the standard review is very is a very high one as the sixth circuit said yesterday it's not a matter of have had a prediction of all sorts of horrible things are going to happen because of the changes that have been made and so it is worth something to compare what happened in the two thousand and ten turn out  how do we view the primary election when we look at the type of law here policy side in terms of how it came about is not really something we can deal with you know yes or i would challenge the policy aspect of you certainly have a right to do it is they don't knock on  when i absolutely agree with you but but for example at the trial of this case we had expert witnesses an expert witness testimony about how long the lines were going to be in north carolina based upon two hundred people that answered an internet survey i just want to point out your honor that you made the point that it's worth something that the turnout was higher by minorities in the primary in two thousand and fourteen than it was in two thousand and ten and if this was going to have all these horrible effects and voter the status quo was the the past practice that had not been changed in an election but your are quite frankly i would argue the status quo changed to since the new law was enacted and the plaintiffs elected not t of the may primary and say we did conduct an election and we have voter suit now have they don't under these new practices we have election officials who have conducted elections under these new practices and i would submit that that's the status quo that is that's what's happening in north carolina right now it's what happened in the last election that's what's happening right now so they are asking you to issue a mandatory injunction to change the system that's in place at the present time and they elected not to challenge that prior to the my primary but it is a choice of words to some extent i mean in new lawsuit was filed in ultimately the actions taken it too at least to enjoin it the intended that time because what you call this is a junction it really changes it well there's mandatory if we get there to the right that's true and we have one position on that and the court will decide its position on it and you understand our argument on a registration that side has to have all of the ballots within that counting and the way it worked previously was it was automated and the voter's information was put into a computer and then the ballot was printed for that particular better look the system that would do that has been disabled and i believe mr x the executive director has explained why would be extremely difficult to rename all that particular application because it works with all sorts of other applications within the same systems so it's possible that it's likely in fact that if you reengage the same day registration automated application there's no telling what sort of errors or problems it would cause with other applications that are part of the seams process such as your honor when you register to vote the process the application automatically kicks out let investing resources explaining to their supporters how the election's going to work this year so they're telling their supporters when's early voting is going to start they're telling their supporters that they have to register twenty five days before the election they're telling their supreme court has been very reluctant to issue an injunction and it's similar to what the plaintiffs are seeking here this close to an election because of the potential harm to the election process and there's  i don't believe there is a supreme court case where a similar type injunction the plaintiffs are seeking here was issued what is it thirty days before early voting space to start don't hold me to that your honor because what i don't know for sure but i'm there we're coming up on early voting very soon and we're only forty or so days from the election and i don't think that you'll find a case where the supreme court reversed a district court judge the supreme court has allowed elections to go forward under illegal redistricting plans and we've cited those cases to you and the reason why the court has allowed the elections to go forward is because once you get to this point in election  fourteen the legislation was passed in two thousand and thirteen your honor and that's about the best i can do i think it was three of two or three days that just i don't believe it was here three days after show you're on i think it was that you know it wasn't  me i could walk to but i got to drive down to another one and it would be just and i'm thinking of the statistic given on poverty education level transportation the elderly in this state there are people who done when i think i heard was it would be very difficult right but would but my question is can it be done i think that it's probably more likely that that could be done  away on or that's an assumption that for which there is no evidence you are looking at a statistical correlation assumption that someone who walks into the wrong precinct and votes that is vote won't count it's not an assumption you told me that's a reality why did they go to regulation on the time place and manner phony and elections which is followed by majority of the states in the united states and your honor if you believe that the court will know you we spoke to the majority of these states and how things have done again it goes to what we consider status quo if you an act a law and the law results in a great deal of people voting union act another law and it takes it away i mean we don't look to statistically significant relationship to black turnout or black registration and there was a test and a commonly accepted test that the united states expert said could have been done where they would compare states like south carolina what you're saying right now your honor it is if the court would order north carolina to to count out a precinct ballots you have the same history of discrimination unfortunately and you have the same say she economic conditions in south carolina so you're saying that either way we're looking at it if there's a reason and put in is in this vein we're talking north carolina and oklahoma has done it this way if the question is should it be required to continue this way until you have this trial because there has been some indication that at least maybe it did have your aren't the plaintiffs have completely failed in their burden of proof in sharing that these practices contributed to high registration or turn out there's a correlation between this before seen that participation in the practices but they did not do the test they intentionally did not do the test to share whether or not you have to have these practices to provide african americans equal opportunity to vote and the reason we did have an expert that did it but you know you don't accept that past practices should be considered in section two tonight there are you with all due respect i or what i'm saying is that the statute and the case aside there has to be a causal connection between the very practice practices and discriminatory results this is why you have to jingles preconditions invoke dilution cases because the jingles preconditions crude discriminatory results through statistical evidence racially polarized voting the pointis have offered no proof of that the practices that were jingles is very clear that there has to be a causal link between the practices in a voting procedure that creates an equal opportunity how can there be an equal opportunity when all voters have the right to register twenty five days before the districts were african americans cannot elect a candidate of choice so there's and they declined to do the test that they could have done which is similar to the regression analysis of the dilution case where they could have put at least some evidence in the record  significant relationship between the practices that were repealed and the turnout in north carolina of african americans thank you are think my time's up that the practices that are being repealed particularly same day registration and out of precinct voting do do have a disparate impact on african americans and as the district court said they are more causation requirement is to show that the social and economic conditions of african americans is related to the practice that is being challenged and here the practice that is being challenged as the repeal of these provisions and the cutback in early voting and the district court's own findings were that there were social and economic disadvantage is that may that impacted the ability of african americans to vote without those conditions  i also want to just talk briefly about out of precinct voting i think you're on or explain very very clearly the reason that this happened sometimes and the record is all of witnesses who testified as to actually seeing voters who accidentally came to the wrong precinct it's it's easy it's easy to get mixed up there with a lot of precincts that have been split in the state as a reason as a real result of redistricting and most of the to you agree absolutely not and the and the jingles case in the senate report specifically say that there should be a probing examination of past and present reality and the past definitely impacts the present and that's what's happened here with the social and economic conditions of african americans today in this state impacting their ability to vote because of the past history of discrimination and i  want to i do want to say that if this court does not enter an injunction preserving the status quo as it existed prior to prior to the founding of this lawsuit there will be actual voters who will come to the polls in november and they will either be turned away because they cannot do same day registration that didn't happen in a primary well we primaries didn't have that problem at all if you look at the amicus brief from the brennan center they cite a a recent report on the primary and they give actual voter stories of voters who who came to the one a one one is an african american couple they move to a new county they didn't know they had to reregister they came to early voting under the prior system they would have been able to do same day registration they were turned away it's in the report cited in the brennan center and another went on out of precinct a disabled senior african american was reinstated and at least for within the same county where they have the records to be able to to know that the that the where the where the ballots should have been counted are not you know that  climber and now that's the status quo that we now operate with not what you're referring to when you're on i would prefer to the pash the case which is cited in the breeze and there are a challenge practice was in effect for seven months but this circuit held that it's that it's status prior to the controversy that you look after the status quo explain to me why you didn't  decision that the this report has never set out a decision that says that you can't have an injunction close to an election what happened in purcell was that the district court was quite late in its handling of the matter the court of appeals stepped in before the district court had a chance issue a written decision and findings of fact and issued an injunction and what the supreme court actually was saying was that they assumed that the court of appeals had moved to hear this case and issue findings of fact which is what's different then then purcell the second your honor you asked a specific question about wisconsin and i wanted to address that the confusion was consonant is currently reported that that i think you're referring to is coming from two places number one you have a new id law that the local election officials have never dealt with before here you're actually asking the election officials to deal with something they actually are familiar with from the past the second though and probably more significant is that the id law in wisconsin applies to decision where the six circuit decision there to restore early vote was not issued till october fifth so the six circuit restored early voting we still have time so you've got you've got all the time in the world to deal with the twenty sixth amendment in the rest requires every person who shows up at a polling place who is not on the polls to get a provisional ballot ok by federal law they have to give them a vision about it is a scorch of the american election system and there are states like ohio where there are hundreds of thousands of provisional ballots from people who show up and get them and don't have their vote counted and north carolina has avoided that the administrative burden of of provisional ballot compared to counting which is what we heard was the  burden the burden would be that they out of precinct ballots would have to be counted compared to the time the state of north carolina will spend resolving provisional ballots that stack up and stack up and stack up there is no question that allowing people to vote out of precinct say states money safe states time in franchise's voters there is no burden to prove to provisional voting and you can look at any state that has the rule one way or the other and come to the conclusion that there is no genuine burden that the state of place even if it's a good on may day but your honor it takes no burden to put in place it's simply it's something that incident happened i'm just saying what you just said it goes back to the policy the question of you know will it save them time or whatever  confusion right so with respect to voter confusion there would be no voter confusion because first of all as we've now heard from several people the turnout in the primary was relatively low versus the turnout in the general someone happen to be among the small number of of primary voters or someone who read that booklet they probably are they are are more familiar with the old law than the new law so i think there's not likely to be much voter confusion on that front but furthermore with respect to our precinct voting and same day registration and this is this is very important to be quite brief these are failsafe provisions most people who vote out a precinct or need same day registration wind up there because the system has failed them in some way or they haven't fully