we'll hear argument now in the case of one wisconsin institute against thompson system in the western district remick then my colleague will discuss the rest the issues in this case later today i'll come back in the frank case and discuss the eastern district remedy with regard to our free id law wisconsin has created a comprehensive system that provides that every eligible voter can obtain a free id with reasonable effort most voters for most voters who don't have photo id already have all of the necessary documents to obtain a free id with one council why should we do anything with respect to the id petition process other than remand to the district court there is a moving target here in the state keeps changing its program of the state says its new program is working fine and the the new program is not working and the reason why we should do anything other than tell the district court sorry what you addressed is no longer in place please go through the process for what's now in place oh well i think that would certainly be a plausible solution now i will note that at the triangle trial was held the the rule that as currently the law was in place that it can't became place on may tenth and the trial was a very strange trial to the trial ended up with almost all the testimony being about what happened before may tenth and very little what happened after the one one presumes we need to make a judgment based on what now used in place and how it works  system currently is is if someone comes to the d m v and they have all the documents they'll get a free i d card good for eight years if they don't have all the documents they enter a special process now what happens there is if we can verify them quickly then they'll get a free id card in the mail within six days if we can't verify them quickly what happens it will send them a photo i d receipt which will be good for as long as the verification process takes that receipt can only be lost can only be lost upon a finding of that they're not eligible that they committed fraud on the application that they voluntarily withdrew from the application process for example it said moved out of state they're not interested in getting that idea anymore or they didn't respond one time in six months to reasonable inquiries now the question district didn't like that system and this district order two changes first it said the d v must give that card right away even if we can't verify who the person is and second the court said we can't take that your card away unless we finally determine that they are not eligible now the district court system doesn't improve from the point of view of voters rights because it's only triggered if a person initiates the i d p process now our system already system works and that's because if the state is forced to give someone your idea right away even if we can't verify them we can't do a reasonable verification process and i'll give the court two examples of the kind of all of the questions we'd like to be able to ask sometimes we're not finding matches based on what they told us but there seems to be an agency that might have some records on them that could help us determine if they are who they say they are but a lot of those agencies will release to us any information unless the person the subject gives their consent if they don't have to get back to us so we have no mechanism to get that consent let me give the court oh another example sometimes we'll do a search will talk to family members etc et the washing dishes system there's really no way for us to get that kind of contact and all the same instinct in between the existing system and the remedy that the court ordered is that the existing system is issue says certificate for voting they're both revocable but the basis for location is critical both are over of a couple for a fire and final finding of ineligibility the problem is under the western system it's really it's a very small difference prop a but it's a big one practically is that it's not for failure to communicate with us once every six months that's very important because if it's not replicable failure to communicate we have no meaningful way to do the verification process and if we can't do a verification process we can ensure that the person is not a  can't let the our for our citizens know that we've done a meaningful derek fisher process about so the two systems diverged based on the permissibility or the practical fact of being able to verify identity and residency that that's right and it's it is it is a most of it is the same and i think it's telling that when the district court looked at the system when the problems that the court found what was happening before me two thousand and sixteen the record adopted a remedy that was very close to the same thing that we had seen and we adopted and now i'd like to be one final point before i sit down here it is clear from the brief in this case the plaintiffs believe that the district court or something broader than the district court orders some sort of unspecified fundamental reform to our system we would ask the court to just clarify its opinion if you could that there is no ruling authority for the district court to her to enact fundamental reform or otherwise without specifying what they are that the the two may please the court ryan walsh on behalf of the state of wisconsin the constitution grants state legislatures broad discretion to set the times places in the manner of holding elections now pursuant to that discretion wisconsin could have been acted and set up a voting regime that more or less resembles the traditional model requiring for example voters to show up on election day to vote and to register in advance of election day instead wisconsin has exercised its constitutionally conferred discretion to create one of the most generous voter friendly systems in the nation consider that many states offer no early voting and twenty states require voters to have a special excuse to vote absentee wisconsin meanwhile allows voters to cast an absentee ballot for any reason up to two weeks in person absentee or if the person would prefer not to make the trip they can cast and they an absentee ballot through the mail up to forty seven days before the general election again no excuse necessary and while thirty seven states require voters to register in advance of election day which a rule that undoubtedly deters some from voting wisconsin permits electors to register the same day they vote and we already know from frank one that registering to vote in wisconsin is easy despite these and numerous other accommodations plaintiffs would have this court take a red pencil to no fewer than fifteen provisions of wisconsin's generous election code on the remarkable theory that that system denies or of bridges the right to vote in violation of the constitution and the voting rights act plaintiff's theory fails at every turn i'll address the anderson burdick framework for first then turn to the voting rights act and then the fifteenth amendment in the intentional discrimination theory a few basic principles dispose of plaintiff's anderson verdict theory all together that they seek here namely an across the board injunction that would prevent the state from applying the election law even to those voters for whom there is no on reasonable or undue effort the plaintiff instead must show that the laws brought application to all voters is unjustified the district court overlooked this critical point repeatedly about the durational residency rule for example the district court said frankly that plaintiffs could not show how many voters could not comply with the new all quote plaintiff's expert could not pin down how widespread the problem is nonetheless the court threw out the provision on its face entering an across the board injunction on the grounds that the rule imposed moderate burdens on those who met byrd with respect that is not a holding that withstand scrutiny under crawford or frank secondly plaintiffs in the district court also misunderstood what i will call the question in an andersen burdick facial plan whereas the denominator is the number of voters to whom the law applies which is often the state's entire electorate the numerator is not the number of voters who face an inconvenience under the law or even face a hardship under the law rather the numerator is the number of voters who because of the challenge law cannot with reasonable effort cast a ballot in wisconsin so illustrate with a voter who wishes to cast an absentee ballot thirty days in advance of election day or maybe three weekends before election day would have to show under anderson burdick for example that casting a ballot by mail forty seven days in advance of election day collecting the stamp would be too much effort would be an undue effort on their part and on that basis that plaintiff in particular would have been as applied claim it's just as important to see what the constitutional right to vote is not in this case anderson verdict is not a ratchet it is not an anti retrogression standard the right does not equal whatever voters options are  election system the minute before the challenge law is and that it if that's what it meant there wouldn't be one constitutional right to book a vote there would be fifty there would be one for every state and that right to vote in each state would be constantly changing with every minor adjustment to a state's election code yet that is the position that plaintiffs argument if accepted would necessitate this is clear in their response to the case of griffin a very important case for resolution of this appeal this appeal in griffin this court considered a challenge to have to teeth voting statute working mothers argue that although illinois allowed absentee voting under certain circumstances there was no statutory circumstance that covered their hardship the court assume that many other people found themselves in the same boat gets hard to vote on election day some sometimes given personal circumstances nonetheless the court said it is obvious that a federal court is not going to decree all male voting weekend voting multi day voting or internet voting or some other broad remedy that is tailored to the particular particularized hardships of each voter plaintiff's responses telling their position is essentially that i illinois had an absentee voting system like wisconsin's but then changed to the absentee voting system that illinois had in the case it might have come out differently so again it's it becomes a weird ordering issue a third problem under anderson burdick in the districts opinion is what i'll call the monroe principle the socialist party versus monroe case establishes that states are allowed to address potential deficiencies in their election system with foresight they don't need to build the file they don't need to collect evidence and when those basic reasonable nondiscriminatory election rules are challenging forth they don't face a sufficiency of the evidence standard they have no burden of proof their obligation is simply to point to their interests now moving to the voting rights act claim we know from frank one of what the general framework is first the plaintiffs much show that the law provides less opportunity for voters on account of their race not when considering the challenge of law in isolation but under the state's quote entire voting and registration system and that difference in opportunities must amount to something like a substantial bird that certain racial groups are less likely to use an equally open opportunity does not violate section t if the state doesn't make it needlessly hard to cast a ballot then it has not denied or abridged anything plaintiffs fail under the first basic step under section two for two reasons first although it disparate outcome wouldn't show a denial or a bridge with plaintiffs haven't even showed that with respect to the absentee voting laws consider what we know between twenty ten and twenty fourteen the important laws to compare here because both are midterm elections and most of the challenge laws were enacted in between that period turnout search turnout among african american and hispanic voters increased considerably as well meanwhile african american and hispanic voting age populations increased significantly as well and the percentage of the electorate that voted absentee increased and the absentee voting rates among african american and hispanic voters increased as well this is not a picture of a disparate outcome it was that evidence based on several of those figures come from expert reports on both science and other words the experts on both sides read about turnout generally and turnout among african american and hispanic voters as well but then we also had a statistical analysis done by dr mccarty from princeton university who looked at the numbers and made calculations on the basis of them but that i have some question about how you know the racial people voted it the state does not collect racial information that's right but dr mccarthy was able to use through i think through surveys and get a general sense of what the racial groups were second and more to the point isolated group racial disparities wouldn't make out a section two violation anyway under frank one courts must evaluate plaintiff's options under the state's entire voting system if the district had seen the point this point it would help for the state we know this because it identified the outcome determined of point the challenge provisions quote neither categorically bar individuals from voting nor close the window in which municipalities can offer in person absentee voting indeed quote if the shortened period is not convenient for certain voters then they can vote using mail in absentee voting or on election day in any event there are no conditions alleging allegedly giving rise to any underlying disparities that are themselves attributable to discrimination by the state of wisconsin the district court in this case repeated the errors of the district court and frank want finally on intentional discrimination it is extremely difficult as it should be to prove that a legislative body acted with any it intent let it let alone an intent specifically to cause invidious harm to voters on account of their now arlington heights sets forth the relevant factors first we would want to know if there is some kind of discriminatory effect for the reasons i just gave there has not been that effect with respect to the in person absentee voting statutes what was the historical background well in wisconsin the background is one of the most voter friendly election regimes in the country and a history of state action that doesn't include the kind of intentional facially discriminatory laws that maybe some other states that have been covered by the voting rights act traditionally hat was there any question in the sequence of events or it were there any procedural departures preceding that of these laws plaintiffs actually conceded that there had that there were not procedural departures were there any substantive departures places main argument is that while some of these laws were robustly justified they didn't they weren't accompanied by statements of legislative fact finding or statements that these laws would serve these particular interests w with respect many of them didn't come with statements of general purpose and in any way the substantive departure factor doesn't demand that much they basically rest their argument on the legislative history factor they find a few quotes from a few legislators that they think are racial comments on their face they aren't racial comments and anyway a couple comments from a couple legislators is a far cry from intent on the on the part of the entire legislative body  on intentional discrimination seems to boil down to this harming racial minorities was in the republicans interest and they had the opportunity to act on that interest so harming minorities must have been their purpose this overlooks not only that act twenty three and three other acts in this case were passed with democratic support act twenty three being the source of seven of the provisions challenge here it also overlooks that the one location rule and accident two thousand and five was also passed democratic support and signed by  as justice stevens recognized he crawford for these reasons we think there is no possible severe burden much less a moderate women randerson verdict there is no denial or abridgement under section two and there is no evidence of intentional discrimination with respect to any of these laws if there are no questions i would like most certainly counsel hear explicit statements of racially or age and also in this case discriminatory intent from the legislature whores who were passing wall and so you have to do  broader sensitive analysis the court said looking at all of these other factors most if not all of which we also met i think in this case but this is a case where you have a number of these extraordinary statements which i'll get to in a minute we think the district court was correct in finding that the cutbacks to be in person absentee voting were motivated by race and therefore unconstitutional but we do think that  peterson made some legal errors that led him to conclude that there was not intentional discrimination with respect to the rest of the provisions at issue and just briefly i'll summarize first that the court considered each of basis analysis in many places to the challenge provisions rather than analysis or pretext evaluating whether certain rationales could have been and could have supported the the underlying judge seem to say that his principal concern was that at least the in person absentee voting rule had a disparate impact on blacks the state know it and the state therefore intended to discriminate is not a fair summary of the core of the ruling i think is a fair partial summary i think there was more i mean there were explicit statement ok in the legislative act what the explicit statements to on my problem is that that was rejected by the supreme court and personnel administrator of massachusetts against feeney as a ground for finding discriminatory intent if that's the only thing boils down to statements made by legislators well that because otherwise we've just got a district court who didn't cite fini didn't try to apply the feeney standard and used a standard that i find very difficult to reconcile with the supreme court's well i think i think the court apply arlington heights i do think as i said i think it may make the news there any is a later decision much more specific right for you i don't know whether you know that the history of it but after tonight's the three judge just record in feeney said people intend the natural and probable consequences of their acts therefore knowledge of discriminatory knowledge of just for an impact is discriminatory intent in the spring court said that's about this act part of which cut back on in person absentee voting we've got to consider what this will mean for the neighborhoods in milwaukee and the college campuses around the state and then senator and spoke up and said yes all i care about is winning and the democrats would do this too if they were in power now it's true that she doesn't explicitly say when she says neighborhoods around and well walkie she doesn't say black people but that that reference to college town sound like a code word for race you know that's goes to age and we have a twenty sixth amendment claim as well and part of what the legislature has done with the many of these provisions is to target young people particularly college age students with with various provisions that make it harder for them to register and and to vote and so that was an explicit reference to that kind of targeting what was the basis on provision innocent the innocent inference is that a lot of people attending college in wisconsin are not residents of wisconsin and therefore one has to be very careful about who registers and votes in college  campuses why isn't that the most straightforward way to understand a statement like it is possibly i began i think that all these things under only two nights need to be considered together because you also have several provisions which are specifically aimed at college students you basically one of the provisions in this kind of package that was passed over the period between two thousand and eleven and two thousand and fourteen basically made all student id as useless as a form of id the dorm lists were essentially made  usable as a way to verify residency because the college had to specify who was a citizen and who was not in federal law actually prohibits them from doing that and so they would they wouldn't provide the dualists any more there are several provisions like this that are specifically targeted at young people and there's more you want to go back to your question judge easterbrook it's not just the statements in addition the justifications for these measures are meager  while it's true it's not it's not like the state has to build a record every time it makes a change when when there's an exemplary system election election system and  changes are made in a short period of time and which cause harm caused burden on the one hand and there's very little justification on the other that goes to pretext which is another factor under pretext for what you know pothole large part of your brief one thing that worries me about the large part of your brief reads as if the argument is when democrats are in control they're free to expand voting when republicans are in control the from making any progress public and changes that can't be right will your honor we also have a why are there standards when republicans are in control any different from the standard for changes when democrats that's not mike mike that's not our position you  partisanship should have nothing to do with how easy or hard it is for qualified citizens to vote in fact our position is under karen to be rash and and the thing other cases is that that's unconstitutional and actually you know this this came up particularly in the discussion of the durational residence record wisconsin used to have a longer one and it had a shorter one and it had a longer want to get in and the district judge said no you can't change back to the old longer one even a longer one that's been approved by the supreme court of the united states because you can't demonstrate that the other the shorter one was a disaster i mean that just says district judge says i'm taking this out of politics i'm going to decide will the judge did a very sensitive announce the matter you know was under was a very sensitive analysis to hold on constitutional something the supreme court of the united states has twice h to be constitutional it didn't say disparate starters aren't supposed to disagree with the supreme court of the united states i mean that the cases you're referencing your honor involved balancing test they did they did the type of you know hard hard decision that the adversarial process demands in the words of the crawford opinion and so to do this judge he looked at the fact that there was no real reason for the change from ten to twenty eight days he looked at the fact that you had this kind of nonsensical situation where if you had moved between twenty eight and ten days within wisconsin the only way you could legally vote was to go back march marston against lewis holds that a fifty day durational residence requirement is  proffered a just a rational justification for that that that registration period it had a need is a need to have to process it used volunteer registrars and so it had a special need to have additional time to correct mistakes there was a there was a very it wasn't just fifty days is fine and anything above fifty days is not fine there was an analysis of the balancing that went on in that case no i want one would think for marston the fifty days has fallen and hear that is stacy that's one of the reasons why i'm worried about the rationale of the brief because it it amounts to saying well an earlier wisconsin legislature thought that ten days was fine and that ties the hands of a later legislature different political party gets into power their hands are tied the hands of the legislature were not tied they could always change from thirty to ten but they can't change from ten to twenty eight units they are not concerning partisan advantage on constitution if you're making it what decision what decision of the supreme court has said that taking but making decisions based on partisan views violates the constitution  my position on it is that the supreme court has acknowledged that partisan gerrymandering is unconstitutional but has not found a standard to judge it by yet that's what the i think the media do you think it would violate the constitution if congress says we're reducing the level of benefits in the food stamps program because the people who get food stamps largely vote for our opponents so we're cutting those benefits we're going to increase benefits for our supporters and reduce benefits for its violation of the much right here we're talking about whether somebody is ability to vote or register to vote there is no case in which the court has indicated that you can make it harder for a group of people to register and vote based on how you think they're going to vote in fact that's what carrington be rash said they said you can't put fences around the ballot box based on the way you think a group of people is going to vote there was the military but it couldn't it can't be more acceptable to say we want to try to keep target as a matter of equal protection you couldn't target democrats and couldn't target republicans to try to make it harder for them to vote and the one thing i wouldn't mention it is that the district court here think where it aired is the next question is what how how did how did they target democrats because they target the people who vote democratic african americans hispanics young wait wait wait wait i mean african americans the record there's lots of data that latinos and african americans in wisconsin vote predominately overwhelmingly for the democratic party as as do younger voters as well and so that's how they accomplished the targeting that the district court found was to target those groups in the in the district court did a sensitive analysis and with through each of these provisions and talked about the ways in which scientifically acceptable methodology for estimating the rates of a voter file essentially you can do it for any group of people you know there's like a formula it's based on a name and other factors  and that he did that analysis and so it's proven to be you know very have high degree of accuracy in the district court credited it in this case but wisconsin doesn't maintain race on when it's voter file you're was basically on those findings from based on testimony about the pre made twenty sixteen program that pre the post be up to today i d p p your honor  i mean the state was based on anecdotal evidence about lapses in the program before the emergency rule as i understand it well the emergency rule did not the the bill which emergency rule you don't have  yet but the emergency rule that they came out with like the friday before the trial started on monday didn't begin to fix the problem and you know that there we have in the record scores of people who were literally disenfranchised because they were caught up in that process because they had certain letter differences in their name between save social security record in their birth certificate this was a systemic cutely affected african americans and latinos in the record there's a poster board where you can see that the sixty some people who were initially denied it and many of them were caught for years in that  only issue these temporary receipts which continues to burden individuals who are caught up in this process because many if not most of them have come to the d with all the documentation they have and what that means is they get receive a contact in fact our clients receive a contact last week saying you know we need to hear from you we want to we want to get more documentation from  family bible you know something that will verify your birth even though the d m v administrator has admitted with these folks that there's no dispute that it is more likely than not to bite it's probably more likely beyond a shadow of a doubt your honor that they are who they are say they are that they are us citizens and that they are wisconsin residents with a constitutional right to vote and yet they've come with all the documentation they have and this court sitting on bank said that's what needed to be done to have an adequate safety valve and they're still being required to somehow come up with something else even though they pull you know they've already come with everything they have and the receipts are at some point going to run out i mean they you know it's burdensome in and of itself to have to keep making these calls i mean the court found the district court found that the average number of contacts was like five or six contacts some people many more contacts and that i mean this is these are really emergency rule said well we're going to take the denial back but they couldn't find a lot of those people and so those people are still being burdened these individuals have to keep unlike most in wisconsin they have to keep contacting the d m v to to to to show them god knows what to try to get a permanent i d in some instances they're demanding that people fill out a change of name form even if it's the same name that they've used like johnny randall's one of the plaintiffs i can i can you you know seventy five years old it's the same spelling that he's used and they want him to sign a form under penalty of perjury stating that his a driver's license or a regular id unless that's based on an old system that no longer he says the remedy addresses the circumstances that don't exist anymore where there is no remedy yet you know that what is the what's in place right now is temporary only in the sense that it allows the state to investigate identity proof of identity and through for residency but it doesn't expire so it does  does it it's a it is a it what the state wants to be a sixty day receipt it's now by order of the court one hundred eighty day receipt but it does expire now they have said that that will be renewed but they put all of these conditions on it  have to keep in contact even if you provided all the document automatically renews last there's no contact or fraud or a finding and eligibility well they do it automatically renews as long as the person stays in contact and so if the d m v as they have done sends you a letter and says you know we want to we want to keep working with you so i don't know if that means my time has expired or that you got time ok you know we want to keep working with you to it but you need to find these documents which they have done and the person is already given all the and it will only be renewed if you stay in contact with the d m v and answer these unanswerable queries and so end you know your address is up to date these are burdens that are not put on you know most residents of wisconsin if you can go and get a driver's license or you can go and get a wisconsin id you got it for eight years and you don't have to keep answering queries when there is no dispute that these people most of these p that's three thousand people in terms of the people who and that's i'm basing that off of the declaration we received recently as of you know maybe thirteenth two thousand suspended so they didn't outright deny them but they kind of stops trying to do something to get them a final i d others gave up and left the system and then they would code those people as having voluntarily withdrawn from the system and and one can understand why somebody might give up after talking to them for eight or nine times sixty seven point nine percent of i more than that i think that are in the process right now i don't know the exact number who are starting to york but you know just to be clear our position though of course is that the i p p is just the tip of the iceberg of a very broken system people are deterred from voting by this people are just a couple of quick points to clarify the record the only people who don't have that have applied they don't either have a heart card or receive are those that voluntarily cancelled the process because they happened out of state or passed away though that that is the state of the record and also just clarify how the system works so you come in and you get your see you get back to us every six months we'll have reasonable follow up questions and we'll see you don't want to get back also say there's no election coming up you want you don't want to work with us anymore after six months of no contact you'll get cancer but the rule says that if at some point you do want to go just give us a call back answer sensible questions the receipts will start issuing once more so there's no gap and there's no one being disenfranchised and responding into your honest question i think of the man to be totally appropriate for us to show how the system is currently working thank you thank you very much counsel the case was taken under advisement