long duration although as the district court found the civil rights division does now impose an eight year limit on similar decrees the most compelling reason is that for the last twenty years the are in c has been precluded from gauging in and election day ballot watching activities poll watching activities at a time of monumental legal and factual change in the american electoral landscape in one thousand nine hundred ninety three congress passed landmark legislation the national voting registration act which not only made registration easier but for the first time imposed five year criminal penalties on knowing and willful voter intimidation the very thing this decree it's supposed to address in two thousand and two congress enacted the help america vote act hava which guaranteed the right of any voter who shows up at the polls to cast a provisional ballot and in two thousand and two congress also enacted the buy power partisan campaign reform act which radically changed the way political parties fund or operations at the state level the last three decades have seen radical changes in absentee and early voting procedures and a revolution in voting technology where today is the punch card ballot that we observed so with such all in florida in two thousand all these changes have made election day observation more important than ever yet even as modified the decree deters the are in c from engaging in poll watching activities and it had that effect in the most recently concluded election in refusing to vacate the decree the lower court committed material legal errors it made and relied on clearly erroneous finds of fact and it misapplied its discretion in extending the decree for eight additional years for a total of thirty five years rather than narrowing the decree the court expanded it not just in time but it expanded it from application primarily to election day ballot watching activities to voter registration activities even though the record in the case indicated that there were numerous convictions of persons affiliated with acorn and other organizations that have been engaged in a rant that registration fraud in the last several years now let me focus if i may first on what what my client believes are the material errors of law we are under an abuse of discretion standard here i believe we meet that on this appeal first the lower court misstated standard for reviewing consent decrees the lower court incorrectly required the r and c to show either that what was prohibited by the decree had become legal or that what the decree required is now prohibited by law that isn't the standard as this court made clear in the brown versus philadelphia housing authority case there need not be a conflict between the legal changes rather a significant quote a significant change with no attendan conflict constitutes sufficient grounds for vacant or unquote under rule sixty b five a party may be really relevant it has to be relevant to your honor and i believe these changes are both factual and legal changes are definitely wrote for the court it listed a number of important considerations and those include the link the time since entry of the injunction here twenty eight years were met remarkable legal changes many new voting technologies and a material your honor the statistics that we submitted in our twenty eight j brief which have come available indicate that in comparison to two thousand to two thousand of that in one thousand nine hundred eighty four presidential election to the two thousand a presidential election minority participation lifetimes a chance a change in in in the approach that both parties have made to minorities when i was growing up the south was solidly democratic and that was not and that that has changed considerably both in the outreach to minorities and in the and in the composition of the state elected bodies and in the south where there obviously have been instances where it might seem that there only the only the world renowned expert in voter suppression dr chandler davidson called by the d n c as its first expert witness testify that he was not aware of any are in c involvement  malone decision from two thousand and four and the malone decision was vacated by this court sitting in bank specifically citing munson where because ms malone voted on election day and it became moot the parties at the district court level then dismissed the complain again pursuant to and citing one sing way or pursuant to the court's instructions from this court in banks in this court in bank instructions the malone decision is not binding it has no presidential effect and we and we submit should not be considered judge debra boyce going into the trial instructed the parties not to revisit these issues and so we did not and we believe that instruction was consistent with munson wear and number two if if it is inappropriate for the parties to continue resident in the jurisdiction so federal law actually answer which was that's the national voter registration act and we and we cite that in our in our brief in a  degree in order to do that since that's that you your honor as as judge deborah voice found the consent decree has become unworkable with the twenty day pre clearance provision he reduced it to ten days that's still unworkable because many states have registration deadlines that are after even the ten days and in addition many of the irregularities that come up during during the game to my question is no the answer we have not no no your honor we have nothing we are the last instances of litigation on this record in which that statement can be made and in addition your honor i would i would suggest that will sixty five specifically in this the prospect of the parties coming back after they've reached an agreement in or a to wrote that i wanted to talk about because i do think they have bearing here and those two other aspects are are that the that whether the party subject to its terms has complied or attempted to comply in good faith and they are in c i i submit to you was entered as i said earlier there is now a criminal penalty for the the activities that are that are covered by the consent decree plus the they are in season zero tolerance policy that was that was discussed at the trial court would you  do that's that's a serious violation of of the political strategy and and and in fact the d n c proposed that that this be done on the tourney's eyes only basis which the just of a voice did not have yeah i don't understand do that if you were going to make a modification you express proveable of an of an attorney only removed well your your honor we we we primarily advocated vacating the decree and we ought advocated modifying it by eliminating the pre clearance procedure the d n c is rejoinder to that was don't eliminate it just just just make it attorney size only and reduce it in the district court did not even go so far as the d n c repos that's our attorney is acceptable your honor it would it would be it would be a it would be a help but a minimal one it does not eliminate the it's not eliminate the timing issue but the timing issue being the ten days correct but if it were for attorneys would that make a difference it would it would it would reduce the concern about it would reduce the concern about delivering the political strategy to the other side it would not reduce the impracticability for those for those states that have later same day registration or a registration that's allowed within the ten days nor would it help us with regard to the late what would be your honor i don't have our position on that is that we think we think we think any advance notification would be difficult but the shorter the better as i think the only answer i'm prepared to give you on that  and two days three days i mean you're we were talking about it we're talking about it we're talking about a situation here where we have a dynamic electoral electoral environment and things do change right up until the last and the last twenty me we're i think we're in agreement that under rufo and the c t c you've got us show in order you have the burden of modification would be detrimental to the public interest and we're talking about a judgment here of the court is do we get to whether there's been why do we get to whether there has been a violation of the creed it is one of those not sufficient can we agree that as a matter of law it's not sufficient for somebody to come into court who's the subject of a judgment and say your honor vacate this judgment because we've got to live with it for twenty years that in this respect i'm not aware of any case where the only factor the court looked at was the tom but the timing is one factor this explicitly set forth in the building and construction trades council case that i mentioned a few years ago such lower p wrote where the party subject to his terms has complied or attempted to comply and good faith in the f c c versus warrant case there were other factors but certainly certainly mr warrants compliance with the consent decree was a major major factor in driving that decision both read as why it's time to put that well he's wrong for several reasons first of all he's wrong on the facts and whether or not there any factual changes that would warrant a change  wrong on the law ok let's let me for then we deal with the first issue which he characterized as the most compelling reason is because the republican national committee has been precluded from a gauging in normal poll watching functions and the answers your honour's resides on the face of the consent orders themselves which haven't been given as much attention as one might otherwise give but i would like to get the court focused on the consent orders itself the one nine hundred eighty two consent order which is in the appendix reserves expressly expressed lee to the republican national committee and the republican state committee in new jersey at the opportunity to avail itself of state laws which permitted to engage in poll watching functions and i might point out to the court in my home state of new jersey i believe it clarity church lovat or for the simple reason that any any wounds and it concerns that are advanced here today or in advance or below have been the result have been self inflicted they have been misinterpretations that the republican national committee has chose to abide by without seeking pre clearance for twenty for that for the twenty odd years that they would otherwise have had an opportunity they've been self imposed in terms of their interpretation your honor if you know what are the reasons why sitting here today twenty seven years later should the survive because the viability and the validity of this consent to order is revived with each election it's and it should survive because the republican national committee agreed to it and it should survive because they consented to it and it should survive they think well let's test that let's test that first of all as your honor noted in the building trades council case one of the things that you consider is unforseen circumstances well let's go back to the consent decree the consent decree on its files face says in paragraph to and i'm reading from it the on c n n r c hearing after collectively virtue of the party committees agreed that they will in the future in all states and territories of the united states they've in place the notion that there is a fluidity to the change in the law let's start with that premise now what are these changes in the laws that they suggest i think a question was posed by church stapleton that goes to the core  argument in that regard the laws that they cite to the laws that they say to big brother by can't bipartisan campaign reform act hava the help of our america vote act the national voter registration act our motor voter law none of those laws none of those laws address what is at the heart of this consent decree this consent decree is about one central theme in person attempts to deter voters in person at polling places  turn intimidate your honor correct to deter nativity voters for access to the polling place these laws number one don't address that issue number two the voting rights act itself does not expressly address that issue number three the carter baker commission that they relied upon in their application itself in two thousand and five invited the need to change the law the law is not been changed to address this issue it's it is now more than ever a if necessity is a standard and i would suggest that your honour's it's not a sander but now more than ever that this law this consent decree remain it's retain its viability going to appoint the judge greenaway made  the question is at which edge have a voice understood was that any increase in minority voter participation something that we should welcome in this nation any increase in minority voter participation was a function of was a function of population growth why would we think that a consent decree that is designed to ensure that participation and avoid barriers to access to the polling place as the minority populations in this nation grow as their participations grow why would we think that that would not have any relevance today it's strikes me that the argument that's advanced by counsel below and events here today tries to juxtapose two very different things the concept of voter fraud which the record below makes clear is exaggerated concept and the concept of voter suppression and of minority participation never the twain shall meet ballot security measures which have the purpose or effect of deterring minority voter participation are not the antidote to voter fraud that is the premise of their claims that is the premise of their changes it shouldn't be accepted by this court just as it was not accepted by a judge  would deem in part offensive and other ways desperate just slover to us me you know what is what are these proport of change circumstances what really did they argue when the first thing they argued and i want to speak to this was that  they'd have not violated the decree judge have a voice was well within his discretion to look to malone and if you look at the months in where case it's telling in the meat draw some distinctions first of all munching where judge debra boyce made fact findings those fact findings became part of the record of this case now interestingly in munson where the court talks about the situation where  in this that case the united states sat on its rights when they had the opportunity to make an appeal and the joint stipulation of this missile to which mr burchfield refers which appears as docket entry thirty seven in the record in this case was a joint part of that what happened your honor is that an application was made to stay judge deborah voices unction that preliminary injunction enjoin the use of the ohio caging list it went before your honor specific direction that left open the question as to whether or not the parties wanted to litigate under any of the issues out of the consent decree then what happened a month later on that invitation the parties entered into this joint dismissal and that joint dismiss that that that joint dismissal made specific provision that the parties reserved in themselves the right in the future to raise issues associated with the consent decree the r and c have that in two thousand and four they made no application then you have malone in two thousand and four and munching were tells us that the that the litigant that serves on his on his sleeps on his rights is not entitled to assert the vacated or in the way that is sort sought to be certified here  temporal considerations are not are not controlling number one number two is this is this is is this elections occur in cycles presidential every four years haven't they why now we have a minority president we have an attorney general and what is and what isn't what does that tell us is that evidence of a change circumstance because an african american serves as our president they would have you believe that he's going to engage in strict enforcement of our voting rights laws or that because eric holder is an african american is that what drives those judgments is because michael steele is the political leader who was up until a week ago the republican national committee that they're not going to have an interest any longer in suppressing minority voters because it's clear and it's been clear and justice kennedy told us this and in part the first district in strickland that it's clear that racial polarized of right racial polarization in voting still occurs have you asked a factual voice first of all has presided over this case for thirty years yet and i believe in some of your decisions you've indicated that the that special deference might be accorded to a jurist who has had that intimate understanding of the underlying litigation this judge judge to have a voice has seen every pleading every application every motion every argument in connection with this case he understands its context he understands history now now he conducted he  conducted and i believe it was at the request of the republican national committee a two day plenary hearing we had a trial he took you know thousands of documents we produced three witnesses they produced one who i might suggest was self serving having serves as the not has not changed to affect to affect that change there is ample evidence ample evidence in this record that supports the notion that your honor that judge deborah voice did not abuse his discretion in reaching the conclusions that he reached dion's necessary i think he said it would come up again in eight years that's a long time there will be idea that the absence of proof that that a voter was deterred is somehow a suggestion the mission has been accomplished i reject that assumption how thin that they stand that well well well the fact that there has not been the fact that there's not been a need for these applications to like the malone application strongly suggests that the very purpose of the consent decree is being realized now let's talk about time  take these deterred by his own self initiation and he chose to put handcuffs on i don't know the key to his handcuffs resides in the consent order he the republican national committee has chosen not to abide by the very terms they've chosen not for twenty seven years to seek pre clearance they've chosen not to make application they rejected an offer they abandon an offer that we made in this litigation to modify to comport to his request and it strikes me it strikes me your honour's that we're sitting here today when they made an application to vacate and modify and they turn around and say well we got half a loaf we want more but let me deal with your question eight years why eight years well first of all they breed to it not once judge lover but twice they agreed to it in  to again one nine hundred eighty seven without the ration and we know in the sixty be cases that when parties consent to a decree with some of the finest lawyers in the nation i might add to a decree they knew what they were going to you can take that to the bank with the second point your honor is the eight years the eight years corresponds corresponds to the dark department of justice approach to these things i think it's rational it's tension were subject to who would restraint that they agreed to that they could get out of whenever they could show a relevant change of circumstances and after the order they could they were actually in a better position they could get out of there in perpetuity complications any time that they could show carry their burden of change or if the democratic national committee carried the burden of showing violations then it would extend beyond eight years the continued operation over this without limitation was inequitable couple things one is that the starting point is that it's for the court the trial court and the exercise of discretion in applying the sixty five standard which i think is the focus here to consider equitable factors and i think what judge boys did is he looked at my long he looked at its recent vintage in a relative sense it was one one and a half presidential or two presidential election cycles going back he found safe harbor in the department of justice is view of such things i think your honor is correct but now we have an endpoint and there's nothing in his opinion that forecloses an application quite frankly tomorrow if there are changed circumstances and i don't believe they are foreclosed and in its seriousness one of the things with my forty eight seconds ago one of the things that they aren't see focuses on is this whole notion of voter fraud with this consent decree is about is in person in person participation there are many many means in creating quick loading the criminal penalties to deal with situations of voter registration fraud and filling out of absentee ballot fraud and in fact below the r and c argued that those were insufficient by the way today they're arguing that sufficient apolo they already there are insufficient so let's start with the in person voting voting fraud and the narrow constraints of the order it is not irrational or unreasonable in the face of all the other factors to extend this by eight years given that two thousand and four malone event and given the fact that racial polarization is recently is the determination and bartlett versus strickland still exists in our society and for those reasons why they are in c has failed utterly failed to satisfy its burden and we asked the court this is an all or nothing proposition that your position is they are you taking the stance with us that you know there are there are obviously several instances where there are question as posed but i don't want that to be part of our consideration and that's not what your focus is my understanding of your focus on vacation fair a very fair question your honor and i would say i would say  principle as you know our principal argument is that there that this decree has has survived long enough and should be vacated for all the reasons we've set for if this court in its discretion believes that it needs to be further modified than among the modifications that i would suggest the court look at are reducing the time of the pre clearance procedure to two or three days if not eliminating it entirely because it does create a number of workability issues by its very nature sac and if that korea's going to be extended for an eight year term the purton that it and we believe that's not appropriate but the pertinent touchstone baseline for extension at the very latest would be the two thousand form a loan decision so eight plus a better position after judge them a voice and his order then you were before you can make an application tomorrow well of paper and say do we want to come into court and demonstrate that's been there been a material change that has changed the burden under the statute under this degree and now and lish you should not carry the burden you had agreed to that order than you were under your honor we are in a better position but in the same way that a plaintiff who seeks who seeks one hundred thousand dollars in district court is in a better position if you recover so fifty thousand dollars he can still appeal the remedy and are the remedy that we've proposed is complete make it or and or modification in the modification that we got below it moves to some degree in the right direction i want to come back to that in a second but not but  we believe rationally and in a in a an appropriate use of discretion on this record now that there were component sadistic cre that that have moved the ball in the right direction but the addition of eight years from two thousand and nine we disagree with and we also disagree with the expansion of the decree several times my my colleague here mr jenner of a referred to the point of this decree is in person intimidation of voters this decree is were there's a long definition of dallas security now security is used in this it's send to krishna any program aimed at combating voter fraud by preventing potential voters from registering to vote or casting a ballot now that's an expansionist in that is the decree says that it refers to any activity that and i'll try to find the precise wording for you just slowed or any activity that has as one of and in consultation in collaboration with the state and local authorities have a a a process for placing knowledgeable and well trained poll watchers at at the polls on i understand his modification all watching you can do that we can do that but any but but if any part of that effort is written such that even if our people are standing there doing nothing other than writing on a piece of paper and handing it to the and handing it to the voting supervisor that this particular person is is is a is a well known whatever felon well well know not to be registered in this district has already voted three times today if our guy does that is valid the decree what so here's my question normal poll watch function on the station in polling stations we agreed that's what you want correctly ok to observe the voting process you want to do that correct and report irregularities correct ok so it seems to me that the critical issue from your client's perspective is the next part of it unrelated to voter fraud you want it to be related to voter four and that's the crux of your problem we don't want to be precluded simply because one aspect of reporting irregularities might be reporting voter fraud not just by a voter but by a lection official well and now and let me let me try to help and i and i appreciate the issues but i would ask you to put yourself as you consider this issue to put yourself in the in the position of an attorney in house or outside advising the c on how they position people at polling stations in the future within the context of this decree do they specifically tell them if you see voters but voting multiple times you know if we know sufficiently in advance where the issues are going to be and can put our people there and don't mind disclosing our are our strategies election day strategies today are the opposition yes  level in the polling place i look you know it's hard i mean i spent every every election and i don't know if we've had any me where i come from it's not a problem but not possible for us to have poll watchers in every precinct and for the r and c which is the national organization to be involved it involves strategic decisions about where we think the most important precincts are going to be good and bad to protect the you know tip to make sure that the people the precincts we expect her heavy turnout for republicans those people are not are not bothered in voting and in precincts where we think that the the opposition's going to be strong to make sure that things are on the up and up and those precincts that's the first answer so that there strategic considerations and the second the second answer is if it's if it is if our instructions to the people are are to go to the polling places if we're telling them they go to the polling places and they can do everything but they can't report fraud or they can't do anything about fraud which is what this order currently says then it eliminates one of the important reasons why you have ballot observation i mean i've done ballots or vision i'm sure you have all of you have as well i've done it nationally and internationally and one of the things that breeds confidence in the electoral process is when you have a transparent process and you have people there on both sides to look at her obviously to them is concerned as he drafted it with the crux of the matter and that is permissible based on the modifications and what is not you just choose not to engage in trying to term and which you should follow and which week week we could create a list of do's and don'ts of the things on that on that news and don'ts list is is you have to avoid anything to do with different detecting a reporting voting fraud and that and that again i would ask the court to put yourselves in the position of someone advising the aren't seeing on how to comply with this decree and it seems to me that it's it that it is it is it is better not to be involved than to have as we've seen in the last several cycles election day lawsuits brought under this decree  to to enforce it thanks most of which don't succeed i just have them so at the end of the day based on what you just walk into is really what you're seeking him and not some sort of internal were before my time i had just finished my course on this court when they did to consent decree was it your honor the eight the eight years another modification of the eight years counted from them alone just from them alone controversy about which we don't think is appropriate any years from now that would be that would be two years from now because malema six years ago those would be modifications that would help they're not as good as victor thank you thank you you are both able to