the secretaries of primary interest is to make sure that every vote in arizona counts consistent with that interest the secretary requests that courts enter a prospective stay of the just reports order including a reasonable notice period because it will ensure that elections administrators are able to manage the workload they had planned rather than processing new voter registration applications that are coming in daily and having to develop new strategies for integrating the new extended registration deadline into other existing statutory deadlines that have been set by arizona's legislature and the elections procedure manual the factor this court considers when faced with a request for a stay pending appeal support a stay in this case the st factor is whether the stay applicant has made a strong showing that she is likely to succeed on the merits the secretary need not reach plaintiff's constitutional claims to establish that she is likely to succeed on the merits that is because plaintiff's claims suffer from several threshold procedural the facts namely are named in some cases and they are not named in others and in the case because for example this court is hearing oral argument tomorrow in another case that's been filed again by the by some members of the navajo nation against arbitrary state and  it is it is an argument that is being made in that case as well which is the county administrators they are responsible for actually doing the work and have to divert resources and time and and appoint staff to do this work are the ones that need to be the subject of the court order and others this is the secretary while in communication with the county reporters and in fact much of the information that we have relayed to the c in our statement as of yesterday comes from the county recorder's however there is a delicate process that occurs with respect to voter registration has some of those voter registrations come in and the secretary's off to judge logan both in the written as the mission of the secretary of state made to the district court as well as a oral argument and it ends at the record at their record at sixteen which is the motion that was filed by the secretary of state there are detailed descriptions of some of the other election laws in arizona that create significant complications when the voter registration deadline is extended without also changing those dates and we identify we provide more meat to the to the bones in our statement of last yes yesterday evening but the submission from the secretary of state of the district court also discuss those statutes for example  counties are authorized to begin tabulating ballots as of october th that is fourteen days before the election the staff that is otherwise hired and trained to do the tabulation are now having to to redirect and divert their attention from other elections administration duty is to registering new voters another example that we provided in our papers and that we outlined yesterday in our state of yesterday one is or a prospective stay and what we mean by prospective state is that it doesn't reverse any registrations that have been have come in to the secretary of state or the counties post october th then i think what you're talking about your perspective once a voter has gone through the process of registering to vote under at the time when it was a valid court order we do not believe that it would be fair or appropriate to undo that voter's registration because at complex election laws that tie into the voter registration deadline there is that there is a residency requirement that you must be registered in arizona for twenty nine dollars days and then our view is that whenever you register to vote whether that's logistical issue with identifying people who in fact registered to vote after the october th deadline under and in reliance of the court just records order i can't answer your question with respect to whether every county has the function to determine who is registered post october th there is in my view where registration comes in online or through a paper form that there is documentation that follows that so is it possible is it conceivable to identify every individual who registered to vote after october th answer is yes it ministry to flee possible is their staffing and time and resources for the counties to go through that process at this  time i would believe the answer to that is no because in fact you know as this thing registration back now to the register to the registration requirements i understand that the secretary of state on the registration forms does not ask if you have been a resident of arizona or for twenty nine days or thirty days is that correct it's not asked on the floor correct your honor that the that you are asked whether or not you meet the eligibility requirements ok so how  how and if you and if you registered by midnight on the on the th you have other means of because you've requested identification of knowing that therefore they are qualified otherwise qualified to vote so how do you determine from the  of people who have registered since october th if any of those people in fact are not qualified electors for the next election well your honor it's the same question that anyone could ask about any registration they came in to the secretary of state or e committees i think spent a lot of time talking about that from our perspective we went when we have a voter registration eligibility criteria that is true for people who meet regardless of when  register estate register to vote without having met those eligibility criteria whether it is having registered in august or registering in late october this the same relief would be available if it were determined that that person wasn't an eligible voter then they would have to they would have to deal with the other laws that we have on the books in arizona to make sure that there is not a project voting theoretically in the register and  extending the registration deadline is far more problematic and causes irreparable harm for the reasons that are laid out in personnel than for example because it opens the door reads opportunity for fraud that is not what we what we believe is is the risk of extending the voter registration that i know and as we lay out in our papers the real problem here is the the harm to the overall constitutional officers and while the secretary has some authority over them there's a statute that entitles secretary to write elections procedures manual with input from the governor and the attorney general has a particular process for doing up through that channel the secretary here the nd question i want to chime in on previously judged by the was what do we do about this residency requirement as it stands there will be no evidence in the  and so there's a gap there and there's no way of securing that gap because the forms and been updated before judge logan put his injunction in place so mr i offer i think my question is just is actually just a little bit different because my question goes to sixteen thousand one hundred and twenty it goes to the question of who is eligible to vote so i'm assuming that i'm going to think that most of the people it will be awful for arizona if it turns out that's not the case but that most people have registered in the last in the last week are have been residents of arizona and satisfy the residency requirement for purposes of registering for an election the problem is is that they didn't register in time to vote in this election and therefore are not eligible in this election i think that the footnote in her brief accurately characterize our conversation the discussion that we had it was essentially this if the court were to issue a stay tonight our clients would not have a confirm with each of them would not go to be saying well there and i fouled the we're not going to challenge them but they're not valid and i don't know what that means somebody else that challenged them right exactly what but but at least in terms of how we structure in order although it may saying are going through the difficulties of doing two things at once this would be required doing two things at once i i don't believe it would be difficult to identify those individuals but this question illustrates precisely why the county recorder's are necessary parties or no one on this call is responsible for registering these voters and tracking those records is not the secretary's tunisia's south keeper of those records were not keeper of his records i have an understanding of it from my practice and i can tell you what that is but your questions like this acts like this they need to be dubbed in the record or not possible because they filed this lawsuit three days before the statutory doesn't pass without the necessary parties and the date that here on or to answer to your question initially arizona statutory law is very clear on who gets to represent the state of arizona and federal court and it provides the attorney general with authority to quote represent the too far into the weeds on this but the the secretary was previously represented with a different team and a different division of the attorney general's office after the attorney general decided not to appeal there was a conflict  both ethics walls in place and and personally i have not represented the secretary in this matter i have no inside information or confidential communications with her this is an arrangement that unfortunately has become awfully common this year where different teams have represented the secretary the secretary has declined for whatever reason you're going to get into it and i do think that you know we'll certainly honor our ethics lawyers are comfortable with this we have standing any time you enjoy one of our election laws and rule twenty four because that gives us the authority as all other legal entities to and intervene if we meet the requirements and notably in opposition to intervention they have not challenge any of the four bright or any of the requirements for permissive intervention or ask this court to have a negative exercise of discretion as a permissive intervention so given those go then all those factors we think the state of and the state intervention is appropriate here relevant here to the question of whether there is some accommodation that either has been or could be reached and in for example with regard to the parties and our people who already register somebody has to be able to distinct a legal entity that is capable of letting gating or itself the arizona statutory law give the attorney general the authority to represent that you know for example we recently filed an original action against california the state of arizona versus the state of california  limited in scope so that it's prospective and it's nature and does not those that have registered before the time the state takes a fact should be allowed to vote in this general election we certainly that that's a sort of rough justice but that is unfortunately entirely correct unfortunately we are in a situation where the federal district court has found that that was unconstitutional that's incorrect but that the chaos an act and that quitting is that may be occasioned by a complete stay are ones that we think are inappropriate and therefore ask for a more limited status prospective in nature that's notably exactly what the supreme court recently did and then dino and that you know and that position commanded seven of nine justices and we recommended that the senator that vote this this goes to the question of you know how big is the denominator in arizona for the next election that's a pretty fundamental question your honor we certainly have no disagreement this injunction should never have issued and therefore none of this should be presented given the unfortunate facts we have here which is by the way why purcell strongly recommend that and you know prohibits injunctions like this but no think the station take a fact immediately that this is already gone on too long there's not much indication that many of these are going to be in the mix these registrations are going to be in the mail i think the vast majority of them are going to be on the line anyway and and therefore we think if they should take effect immediately that a grace period is not necessary and that if you introduce that sort of postmark concept that's actually just going to trigger is more chaos in what city than it's worth  which is more than almost twice as much time as the before the election as the october th injunction issued here moreover the extension of prime bronfman with barbara minority matches that said no black people can sell and somebody came in ten days before the honor that that would certainly be an agree just circumstance but if that statute had been there one hundred years and for study of higher time and suddenly someone showed up before the election i think purcell does not have an exception for such circumstances ludicrous as those would be but obviously that sort of agree just violation will cry out for an action as soon as the statute was enacted there's no reason that you would wait for example six months into a pandemic the challenge something to challenge arizona's registration deadline which is w you mean this earlier on or that the make that far more extreme but i can i can tell you from personal experience we got hit with a number of lawsuits in late march early april dealing with coronavirus the dealt for example with signatures on initiative the titian that were due in july certainly those people which facing very similar burdens to those here were recognized coronavirus was an issue back in march early april and properly filed suit there general you know certainly our policy is depends off also my so i i have my doubts but i do not have the official position or authority to weigh in on that residency requirements citizenship and things of that sort and i want you to be aware that on that d they that anyone votes in arizona they are required to present proof of citizenship and residency so in so far as they have already attested to that in their voter registration that they filled out whether before or after the extended deadline from the district court's order this gets checked again in each and every case and so for this program i appreciate that my concern is less sort of the voter fraud problem that is somebody who voting voting who has not been a resident of arizona for for thirty days it's really a concern that that one thousand six hundred and twenty makes it a condition of voting that you must have registered before midnight twenty nine days before the election and it is in the section titled eligibility to vote so assume that everybody who is registered in the last five days or seven days in arizona is is is otherwise qualified to vote in the election they're just simply too late on the registration no  you recognize which no one can dispute that for the last seven days people have been registering to vote based on real the reliance of a of an extant federal court order saying that they are they are eligible to register to vote and will be eligible to vote on november rd and because that's been in place and people have relied on that registered and are intending to vote and may indeed already depending on who they are be subject to voting has started yet st time for another way some of these people may have already done well it's entirely possible and but the question for this court i think sitting in equity is given that those facts on the ground should this court be in the business of this in franchising those people who registered based on a reliance of that opinion which you will be surprised to hear i think is both fully supported by the record and constitutes a great amount  important and something i very much want to stress here that although in the district court and now in the most recent filing by the secretary of state yesterday there are discussions about what might happen and what could happen and might let me take you back your promise why is anderson burris the appropriate test here you allege in your complaint and if your complaint was very carefully written you didn't over argue your client's position you based it on the st amendment right to speak and and the st member right to associate those were those are rights to a approach people and talk with them and encourage them to register you don't represent potential voters you only represent people who are who would like to register those potential voters  st amendment conduct that's at issue but you can't divorce it from the temporal sort of time in which it all occurs the reason there is so much voter registration activities because there's a push to engage people to engage citizens to promote civic engagement with them so that they actually participate and vote in elections and most specifically in the election that's upcoming which most people in the country i think all agree is election of profound importance all elections are but this is a particularly important one given everything that's happening in the country in the world and my client's interest was not just in speaking to people although that's a part of it it is in encouraging them and securing them and getting them to agree to register to vote and to do so at a point in time when it will be most meaningful which is this election it's not the same interest for the organizations if it's if that they're encouraging people to register people to vote sure sure  years from now you're quite your client does have an interest in the deadlines are obvious to everybody and the importance of the deadlines are obvious to everybody i'm not disputing that but in terms of being being restricted in your ability to register people there is there is no state action there there's no state action in any of this there's nothing that arizona has done at least nothing that you the latched that impeded your ability to register people cope it was a general was a general restriction on everybody's activities there was nothing that singled out your client or anything that you people that were separate and apart from kobe but there's no question just like if there's a natural disaster if you look at the florida cases for hurricanes or what have you that when there's a lot of voter registration activity going on and suddenly something comes in to stop it the state action itself the activity that we are challenging is the strict enforcement of the voter registration and eligibility cutoffs and what it's like those cut offs it what what what things did the state do what orders did the governor issued that restricted your clients over the last six or seven months i mean were masks well no but there were strictures on gatherings of more than a certain number of people there were there were restrictions on how  specify that it is alleged that you were forbidden from meeting in large groups as a result of the state's action we alleged not that we were forbidden in a specific sense that it was targeted at us but it was certainly true and it's alleged  i don't recall counsel you even mentioning restrictions on the number of people gathering i i mean i go back and check and we can submit a rule twenty eight j letter to try to clear this up it's a little hard for me because of the video and everything else to be able to go looking with them and persuade them to vote and people are either because they're being ordered to or because they're being rude not stopping and have every reason not to stop to talk to strangers at a close just a home in front of the supermarket which is about the only place you can find them there is the use of a b it's like the hurricane in florida century i mean you can you don't have a statute on necessarily telling people that they can go out during the hurricane but they don't go out during aren't and their houses are being destroyed and they're looking into the things they're not attention to registration so that the notion is that any law is to be judged against the circumstances that the background circumstances in which being applied and that's why i understand you'd be saying it doesn't depend on a statute telling you that you can do it depends on practicalities as to whether you actually could do it correct and i don't think anyone will be surprised to hear that i agree with that fully i will also add the judge bybee that i've been told that they have some communication ability here that that that allegation is made in the complaint and i'd if possible i'd like leave to submit something in writing twenty jailor perhaps right don't know what would be called that seems easiest vehicle after the argument to point out specifically where in the complaint that is so little relief that the court could have been granted because it's as if the hurricane never stopped what is the point do you really have a controversy to go into court on and say we want to extend the registration up until the time the current can ends it doesn't do anybody any good like to just emphasize however is the district judge looked at the you know obviously interest and verdict we think is the correct test and when in looking at that test and balancing both the burden on our associational and st amendment rights of all my clients against extending the voter registration deadline the only thing that the state pointed to that was substantive in any real way below was this issue about the early voter registration if feed failed in judge logan's opinion and he addressed that specifically and modified the injunction i think that's a clear indication of how careful he was being in ruling on this on this issue and i think it's been borne out just to hear me out for one second by what's happened for the last week there is nothing in any submission to this court that shows anything happened in the last week that's been chaotic disruptive problematic everything that they're raising is the same things that they raise in the district court that are notional they're speculative they're not based on any real record only record that we have  what's happened since the injunction was issued is that fifteen thousand approximately people registered on the st day after the extension and as far as we know that kind of registration is continued to pace and just as  can say is if you look at the record that we submitted below all of the declarations the numbers are stark after coded began in march when you are our registration the number in all of them were reduced yes by by over ninety percent across the board and they only started to tick up later and but for coded in the restrictions that were put in place there would have been tens of thousands of arizona who had been registered to vote during this period and actually present final moments well that's the key i do not believe that is correct that they are final they are supposed to present them the vast majority of the voter rolls in arizona are electronic they are updated regularly the the state laws provide for those rules to be updated it is not as if just to be clear that the voter rolls are fixed in time as of the th of october that's just not true there are many many exceptions to that and they are updated electronically and they have absolutely the capacity and capability of even updating the paper ones in the handful of places where they are still using paper  basically so again this is something that they've raised you know along with a number of other things but almost everything that they've raised really just goes to how much work it's going to be to both administer the election  other respects and also process voter registrations and the only evidence we have about there really being a bird in there is what's on the county maricopa county website which was very clear that they are continuing to process registrations they announce the ruling of the court they made no attempt to say there was any problem or issue and in fact just encouraged everyone to participate and that's over sixty percent of the state in that one county who notably of administration of the election process in arizona to not appeal and to allow the extension to go into effect and to not challenge it at all which was certainly her thought it was her authority to do that i recognize that she's changed her mind  in this circumstance given the timelines i don't challenge her right to change her mind but it is notable that the secretary's considered judgment a week ago was that this was to be done and her  explanation for filing those appeal today is that she's now decided that there is more problematic than she thought but everything that she raises that's problematic has no tie or tethered to any thing that's imperial goal or reality based it's again the same kind of speculation i mean i mean the reality is that with or without the injunction as i think judge by the is point out that the defendants are still going to process voter registration there's nothing that stops the processing of registration the question is can they process them and and will the people who are registering there during this period be eligible to vote and on that question the answer has got to be that of course they have to be eligible to vote there's no basis for saying they're not eligible to vote you know you have a state law other than a statute you're right but it is the nature of it is the nature of our claim that to do something else there's no question that that we're not challenging the registration deadline facially there's also no question that you know that forty percent of all states have same day registration at this point but arizona is entitled to make its decision the problem is that the decision it made which it's entitled to do which is facially valid and constitutional we don't challenge this in any way on a facial gram in this you know year of all years with  hundred year pandemic and all of the impact that has had it has work to be a serious and undue burden on my clients st amendment rights and although i don't represent others it's true it's also undeniably true many other people's st amendment rights and that ought to be concerning to all of us and certainly to this court and that is the basis always of a federal court to intervene to protect those constitutional rights and to  where it makes sense and it's equitable and where there's really no showing of there being chaos or on feasibility let's just be clear that this report was spot on on is ruling about how feasible or unfeasible election day and did did we strictly construe the law and not allow anyone who didn't manage to vote that they'd have their votes counted no of course we did we responded to that and sometimes and hopefully the people who respond to that are the elections officials and the elected a representative of the state but if that doesn't happen that's exactly why we have or to call three of the constitution it's exactly why not to you know the state the obvious that we are here today and this court  exists in large part is to make sure that when that happens there is a place for redress for my clients and all other people who are similarly situated there's nothing unusual about that and all that's happening is that an event occurred  you know extreme and unpredictable circumstance and it has had this profound impact in many aspects of everyone's lives this is just one of them but it's one where this court can sit in equity and make it right and restore the rights of my clients and certainly not disenfranchise the people who've already registered to vote that would be a travesty once what is your client's edition that they would the state would be granted we certainly agree with the secretary of state that there ought to be a grace period and that that to do otherwise will just cut people off in a way i mean that's been announced now for a long time it's the  its order it extended something that could be done immediately and was only beneficial to bother to my client's rights and others who might be interested in exercising the franchise i'm november rd and registering to vote so there didn't need to be any time to acclimate people to what was happening it was something that is obviously promoting people's right if that's going to now be curved and we could go back in some fashion and again i would  that for many of the reasons there are details in our brief and i've been trying to explain here in this oregon but if that were to happen i think it would be a good exercise of the court's equitable powers here to make sure that it's done in the least disruptive way possible which would be to grant a number of days for people to learn of the change and to act accordingly so that people are not denied their right to vote in this upcoming election on november rd and the nd answer your question is  i always and i know that my clients are always willing to have discussions and were willing to continue discussions after this argument today about ways to resolve things without resorting to receiving a court order the another point that i wanted to make sorry is the purcell point there's no question and i think it's laid out pretty well actually in the th circuit opinion by the dissenting judge in that case rebs and i think or read may have gotten that wrong purcel was a caution and advice to courts of appeals it is not a doctoring it is not a presumption and it doesn't apply here because unlike even in the case just this past week a panel of this court where what was the order that was stayed was one that affected a person's eligibility specifically to vote and to to to cure or defect or not signing something here all that's happening is that we're extending something that already happens  that the recorders and the secretary of state register people to vote and we're doing it in a way that allows my clients and others to exercise to their fullest extent in the way that they had intended absent the pandemic their  amendment rights so it doesn't cause the kind of disruption of course it's a good idea to always be cautious about issuing an injunction that affects elections but every case is different and has to be taken on its own  shown that any of it even exists and so under the circumstances and properly understanding what purcel really says as opposed to what it seems to be morphing into at least in people's briefings who are resisting these kinds of changes to the election process these i think it's quite clear that the purcell doesn't apply in that sense or for that reason i'm happy to answer any other questions that you may have but i see that my honor i have just three brief points but i'd like to me st of all the plaintiffs talk about there being only speculative harm and no information on the record about the harm this is simply just  it's not true we talked about the harms with the district court but i think more importantly i think two notes for the catch twenty two it's not possible to tell it was not possible to tell the district court it's not possible to tell this court all of the impacts that are going to and i guess i'm not entirely in agreement with judge by his view because six thousand one hundred and twenty is precisely the statute that judge logan enjoying for purposes of extending the deadline in the if there is an injunction in place or if there is an order that states that people can register to vote past the twenty nine day deadline so more than sixteen thousand one hundred and twenty it is our position that those registered vote should have done we were not waiving this yourself you were abiding by injunction the federal court as for having done that and given the fact that our position that the secretary could have on her own authorized to waive that deadline but in light of the court's order indicating that individuals can register to vote past the october of its deadline for that period of time until this these well it would it wouldn't be any different and frankly wouldn't be any different than the south carolina case that said that there was a grace period or in a prospective order you know or for ballots that came in  later two days later so i think that it is better if the parties can agree and stipulate to an order and it sounds from my discussions with with counsel that that is used and hearing today a possibility we would certainly be interest h deadline is certainly important with respect to the rosters being finalized i just want to clarify the point that the rosters are finalized and sent to the the the poll locations as well as the whole books are updated it's that registered registered voters can't be added to the list it's that they may not obscure on the roster or on the whole book and this drives home really the point that i wanted to make which is if the voter shows up in a poll and their name does not appear on  roster the confusion and ultimate administrative burden for having that person have to file a provisional ballot because they will not get a regular ballot if their name is not on the roster will result in additional further work and time at they the rosters at the in the back office are updated whether or not the individuals who are working at the polls have a roster that includes that person's name is really there was change into not that that person isn't actually registered the poll worker doesn't know whether or not they're registered because they don't appear on the listen they have to vote a provisional ballot and the process or for going through provisional ballots as we all know it takes longer and so that is is one of the sort of administrative burdens of having to spend it's not state action at all in fact if you listen to it if you just think critically about the injury the plane just claimed they suffered it's not because it was a lot of proof prohibited they never said of the governor's executive order prohibiting them from doing it's not because  rejecting properly for filled out and filed voter registration forms as not the case it's not because you couldn't go into the field and get people to talk to you or sign your paperwork the record shows ballot measure commuted on it with tremendous success even after the onset of cocaine even after the lockdown orders in fact that was true in arizona and elsewhere and it's not because they can't in fact when distributors they can do that now they could have done it even without the injunction the question just whether the people they register people who don't have valid or not given the circumstances but it's not a reason why there to junction merely extends an existing state process the very next day this court issued a stay pending appeal in a published decision and explain the purcell very much does apply to those circumstances so the district court's decision here rest deny a state here such a split would be entirely unwarranted and would be a very good reason why you know further review or further stay could be had finally judged st on you expressed that the delay here is inexplicable we absolutely agree and that strongly supports issuing a statement to appeal here to the circumstances at hand i don't believe it's the case that the requirements for a stay are mad that there is discretion to withhold that higher learning language i'm not quite sure how this should be arranged even for you to contact the attorneys immediately following this argument to see if any mediation would be possible and the mediation should be accomplished of course posthaste and then you contact the