time set for oral argument in the case of the democratic national committee versus michelle reagan i see all of you may proce thank you good afternoon yawners it's good to be before you again my name is bruce five and i represent the plaintiff a plaintiff appellants in this action i would like to reserve five minutes for rebuttal if i may as this court knows  because we have been here before on these issues plaintiffs challenge two provisions of arizona law practice under arizona law of throwing out entirely ballots that are cast in the wrong precinct on election day  we ask that this court enjoying arizona from throwing out these ballots of arizona residents for offices for which they are eligible and have a constitutional right to vote if past is prologue we know that in the upcoming midterm primaries and general elections the thousands of arizona citizens will cast their ballot in the wrong precinct often through no fault of their own and their ballots will not be counted even for offices for which they're eligible to vote we know that the disenfranchised will be overwhelmingly disproportionately hispanic native american and african american more often than not these disenfranchised voters won't be told their correct precinct won't have the resources to go to the correct precinct in time even if they are favor the the court just made legal errors that that resulted in it drawing the wrong conclusions based on those findings with respect to for instance the out of precinct  issue that i was just referring to the district court found our experts quite credible that in for instance in two thousand and sixteen that minority voters voted twice as often out of precincts than n white voters did the district court found that so that that disparity was wink to social and historic conditions under the totality of the circumstances under section two for instance  errors that the court made was in sensually finding that there had to be some threshold taking the v r a analysis your honor to begin with that there had to be some threshold number of voters that had to be effect of holding on to precincts in historical facts that's not how i recall this record making it's find i found as i remember that this record found that the out of precinct voting was not a cause of this before she now do the other issues such as increased mobility and location with live which were not historical social reasons in fact find for instance that minorities were likely to be renters due to housing discrimination and thus were more likely to vote out of precinct that said are excerpts of record seven and forty two but your honor is correct that that result in o o p voting and said well the issue isn't really that people who vote out of precinct have their ballots thrown out the issue is that they don't go to the wrong right they don't that under the to tell you the circumstances your honor and that the senate factors one of the things that courts look at is the tenuousness or lack thereof of the justification for whatever the voting regulation is certainly registration is subject to being  question that at least in terms of what we're challenging that they are eligible they have they have registered and that they have a right to vote for certain offices and we're not saying that they should be permitted to vote for offices which they're not eligible but that's to determine near your precinct so that was that just records you so you wouldn't need to say that that is not a minimal burden on voting so compared to registration which you acknowledge is ok so explain to me subject to that they are a analysis and so they're all i'm saying is they're not immune from that analysis i do think in most instances they would they would they would come out as being proper because of the need to establish eligibility and  that here you have that verification and establishment of eligibility and we are challenging right that status saying we want people to vote within a precinct and so the question is why is that  factual well we are not challenging the state's ability to require people to vote within a precinct we are challenging though the rule that says that if you go to the wrong precinct and here we have lots of evidence by the way that that in arizona you have to do a localized analysis in arizona that often happens through no fault of the voter in fact oftentimes to a fault of the state but but what we're challenging is the fact that if you go to the wrong precinct that  and so i think in most instances that requirement and the way it's implemented would would would pass the test it's not that it's not subject to the test but it would pass the test and clearly good reasons for that there's but but here we have as we have the state is not contesting and the district court didn't didn't find to the contrary that these are individuals who are eligible to vote for certain offices it's just simply saying that it's going to impose a penalty if you go to the wrong precinct and if you look either under the totality of the circumstances under the voting rights act or balancing the burden versus the state's interest under andersen burdick there's really no interest certainly no  correct there are other states i think it's twenty seven by the way but but but there are other states that require precinct based voting but there are many fewer they're not there not many states that that will throw out the entire ballot voting the wrong precinct and your honor i think that's it would be a legally or it was a legal error too to suggest that because a rule operates a certain way in another state that it that the way it operates in arizona is ok under the voting rights act arizona leads the nation by far you've seen the chart in our brief in terms of out of precinct voting and there's a reason for that because arizona moves the polling places around the arizona challenging well we are to the extent that that is one of the things in the totality of the circumstances that contributes to this massive you know over voting and particularly over voting by minorities in arizona but it should be a localized analysis the fact that say colorado which i think is there's a case from two thousand and four in colorado that the the other side cites you know the fact that they have precinct place voting shouldn't you can't just look at that and d for arizona because it's very different arizona first of all was in two thousand and four and the court itself noted that by two thousand and six once they had a statewide registration system and they had technology that would allow them to potentially count those ballots that  its ruling might change number two they actually counted votes for president and vice president so they actually essentially didn't impose this unjustified penalty that we're complaining about here very different and they didn't lead the nation there was testimony in evidence there that the poll workers were well trained and always informed people when they were in the wrong precinct here we have the opposite and we in the district court didn't find to the contrary every single witness save one testified that they were not told the correct precinct one was but didn't have sufficient time to make it to the correct precinct and as we've shown again this is the linkage to these historical and social factors it's much more burdensome much more difficult for minorities for low income minorities to have the resources to get to another precinct if you've gotten to the wrong precinct  through public transportation and you have your working long hours you may reach the polling place and often times people do too late to get to another polling place by public transportation your it was infected by this legal at least one legally error which actually there were multiple legal errors one is that this notion that there has to be a threshold number which is essentially i think another way of imposing quantification requirement that this court when it sat on bunk i think rejected in feldman but basically here rather than saying you have to quantify the disparate burden as between claim your honor but i think that the the same logic applies to both there is no threshold amount of disenfranchisement or burdening of the vote that you have to show in terms of numbers of people please the court i'm dominic traina and with cara carlson i represent the defendant to pelleas the state i'll endeavor to say five minutes from mr johnson who's here on behalf of the interveners i'd also like to thank at the outset the court and all counsel for accommodating my need to reschedule from the original july thirtieth date for this argument all that said plaintiffs have failed to overcome two insurmountable obstacles to reversing the verdict below the first of those is the standard of review as this court has explained it in gonzalez and the second is the supreme court's precedent from crawford on the first point the decision below carefully traced out of a long opinion worth of fact findings that lead to the inevitable legal holding in that case chief among those is that neither the voting  the precinct vote rule nor h b twenty twenty three represents a significant increase over the ordinary burdens of voting and on that last point the court's borrowing directly from crawford that's the language that the supreme court used in crawford to explain the standard and that is that it has to represent a substantial burden on the right to vote or a significant increase over the usual burdens and we have factual findings goal or from the supreme from the trial court rather in which ju res explains at length that the burden is here do not represent an increase over the ordinary burdens page forty five for the o o p rule the same thing at page twenty two through twenty three of the excerpts for the for the ballot harvesting rule and all of these make sense when you look at as as the court is required to do the entirety of arizona's election system including the availability of so many options to mitigate any burden that might exist the court traces those out as well i might add including the fact that every county operates a vote center that allows early voting in person you have in person voting of course you also have a very generous absentee voting process and a permanent absentee voter list that allows people to receive without excuse an absentee ballot as a matter of course all of these things create a circumstance in which the burden visited on anyone to comply with h b twenty twenty three or two to vote in their correct precinct is really very very yes although this court and and others have rejected the idea that the margin has to be outcome determinative or that that's somehow a threshold requirement which i think is a way of minimizing that as a as a fact although we do bear in mind the outcome determinative ness and actually on that score judge raz took to heart the chief judge's dissent in the earlier appeal and he explains of pages fifty seven and fifty eight of the opinion the way that he's going to accommodate that and he takes account of the fact that there is no obligation for this to change the outcome but nevertheless why is the quantity relevant the quantity is relevant because it gives us a clue as to whether this is just some inconvenience or whether it's a real you know denial or abridgement think about the language of what section two requires it requires that the states provision result in a denial or abridgement more than mere inconvenience of of a noticeable groups right to vote right to exercise the opportunity to participate to participate and elect representatives thank you judge but that's a good correction and one thing we see throughout the briefing and even today at argument from our friends on the other of the difference between the burden of complying with the law and the consequence of not complying with the law and that's that's yes it's true that if you don't comply with this law your ballot doesn't get counted but that's not the burden the burden is going to your own precinct or the burden is complying with h b twenty twenty three by for example availing yourself of one of the many other ways that you can hand in your absentee ballot so with that sort of point corrected yes yes and in fact now that we have an alternate holding under section two for example we know that that that's entitle to clear error review in fact that was one thing that's changed between the previous appeal and this one the chief judges dissent noted that in his estimation there was not an ultimate section two finding as to whether or not under the totality of the circumstances this was burdensome or for miss oblique burdensome or not and now we do have that so there's i think no lingering doubt that this is now reviewed for clear error and it's impossible to think how you could do that without somehow including in that the assessment of  burden it struck me in looking at the district court's opinion in the trial that there were actually too many factual disputes between the parties i think the disagreement is and how you weigh the undisputed facts would you agree with that in other words i think this if his picks were pretty much uncontested the facts of the precincts were pretty much on contest so the question was at least to seem to me is how you balance all those factors in talladega circumstance and house you agree with that or not i have to push back a little bit on that but i'll say at the outset that even if there is a question about how exactly to balance it under the tally of circumstances we know from jingles and from once that's done the ultimate section two finding does get clearer view but at a more fundamental level about way about assessing all of these different burdens i think for example that the conclusion about whether a given law compliance with a given given law represents an increase in the ordinary burden of voting which is the language borrowed from crawford i think that that's a that's a fact question does this represent an increase or not and it's partly a fact question because you know the other side mentioned sort of  passing that that there are ways that the state maybe isn't as helpful as it could be or something for people who are seeking out their correct precinct but we know on page forty five and forty four and forty five of the record that judge ray has walks through all the many resources that are available in both english and spanish to help people find their correct precinct so all of those are fact findings that the district court had to do and then i think there's also spread ability determinations as to the state's interest  district court took to heart the findings of the commission on electoral reform that's it page thirty eight and also the survey i forget its exact name but in which ninety four percent of arizona and said that it was easy to find their polling place those two things being relevant to twenty twenty three and the precinct rule respectively you know on in their reply brief our friends on the other side indicate that maybe it was some sort of evidentiary evidentiary error for judge as to consider that commission report but that was never pealed so that is definitely fair for him to have considered and not something to reverse now but all of that goes to the state's interest in these rules the same thing with the factual finding that absentee voting that page thirty six presents a great opportunity for fraud in in the words of judge rae as those are all factual findings and without them you can't engage in the ultimate the ultimate weighing that has to  occur and i think it's pretty clear that those are all correct in fact i think the other side agrees that they're all correct because the only thing they allege is clear error in their reply brief is that little footnote where they say it was wrong for him to credit the arizona witness who said it would take twenty minutes per ballot to sort out what someone could vote and couldn't vote out a precinct that instead the court should have credited a california witness who said that in this state it takes less time i forget exactly how much i think they're wrong but that's the only thing i remember them saying that was clearly erroneous and that's that's a rather minor component of assessing the burden as for the state's interest in the in the precinct rule we have a number of citations and we know from testimony at trial about the burdens that the most populous counties of maricopa county encountered in the two thousand and sixteen presidential preference election the primary election which is all evidence that's available since our our last time here and in that case the counties that tried to run these sort of large single location vote centers found that they were mobbed with lines and they didn't have enough poll workers  stations at which to vote it was acceptable for the for the counties to and the state to take that into consideration we know that the court adopted the six circuit sandusky sandusky reasons that a precinct model makes sense which includes those administer ability concerns that i just identified that's at page forty six and then he says that plaintiffs are incorrect that arizona can accomplish all of its goals without the precinct vote rule that's at forty eight that's also a factual determination can the state or can the state not accomplish the goals of running an orderly election without requiring folks to vote in their own precinct as for some of the other causes that the other side  identified you know residential mobility i believe your honor asked about residential ability those are all but conceded by their arguments and in the fourteenth amendment to the context to be the real causes for out of precinct ballot casting it's not because of what arizona does with the law after it's been voted that someone goes to the wrong precinct instead these factors raise the increased mobility residential m function renting is a function of greater amount of minorities so there's the causal link between three facts and on that point which is considered as well at page seventy five he said that the lingering you noted the lingering effects which your honour's referring to and then said but plaintiff's causation theory is too tenuous to support their claim because nearly all costs of voting fall heavily heavier on socio economically disadvantaged voters that would be true for everything by the way the fact that polls close at seven pm in arizona falls heavier on people who have to work two jobs or don't own a car every regulation you can think of elections is going to burden people who are less well off the seventh circuit noted that in frank's case expressly by saying that it's just really high rates of poverty rather than a racial group that explains the differences in that  and the reasoning you know in the seventh circuit it brings to mind the requirement from this court which is so often cited in the salt river decision that a bare showing of statistical relationship is not sufficient in these many examples where yes there's a higher rate of residential mobility or yes there's you know lower english as a first language among certain minority groups those are those are accepted correlations but those are just bare statistical correlations and it's it's a heavy lift to try and show that a state has done something unconstitutional or in violation of the voting rights act in the intuition for that should be clear as this court explained in public integrity alliance and as the supreme court did in the arizona independent redistricting case the relationship between federal courts who are overseeing state elections processes and the lawmakers in the given states is structurally intended to defer to these findings of state interest and i'm sure the other side will point out that there was never a case of someone mishandling an absentee ballot but of course we know from crawford that there was never a case of mishandling or a voter in person a sion in that case either so it can't be the case that that's required the flip side of that consideration at the level of sort of federalism or the role of the courts is that if we did it differently you would wind up with the kind of one way ratchet that the six circuit in ohio democratic party versus you stead and the supreme court as long ago as one thousand nine hundred sixty nine in the mcdonald versus chicago board of commissioners case has been pointing out that we run a risk where states that expand their ballot access as arizona has done by allowing as i was mentioning earlier all of these many ways to vote by absentee ballot and to make that your permanent preference that they then face a sort of perverse incentives but if you've once done it you can't possibly try to move back without even the smallest correlation being subject to a federal lawsuit obviously we do not intend to suggest that the laws don't apply if you've once been generous but it all fits within the analysis of trying to decide how the system as a whole burdens voters and how it serves the state's interest as a whole those as i mentioned before are all factual findings made it at some length by the district court and entitled to deference by this court may please the court my name is brad johnson and with me today is calling a lawyer on behalf of the intervener of pelleas just real quick on some of questions had previously presented chief judge who asked if there were disputes at trial we had a  few most importantly in regard to some of the opinions of the experts and expression only the opinions that were rightfully for judge reyes to decide judge ray's mentioned that in his decision in said it was inappropriate for an expert witness to be silly beginning legal he obviously gave credence to some of the underlying facts the big dispute there was a cherry picking of facts the cherry picking of facts was very isolated items item by item that several of their experts one in particular dr lic continuously refused to acknowledge the mitigating aspects of arizona law both in the election scheme as well as in the social economic aspects for example dr lichtman had no idea about medicaid and some of the other efforts to mitigate some of the soci economic expert aspects that i saw the minute i got granted the difference on experts which is opinion not fact but i really didn't see too many factual disputes well your honor in that i didn't i think mostly people  disagreed on how what the facts manton the overalls i think that's fair your honor and we had a pretty cordial trial and i think that it was a matter of presenting both sides and one thing in particular i think there was a big difference on the interpretation is appellant's believe that you looked towards just one voting practice either be opium or h b two zero two three and from the defendant side and especially interveners was we want to look at the entire election scheme how is this going to impact the local candidates the local issues for example on both opie and even h b two zero two three but concentrating on at a precinct voting election bonds matter that candidates at the local level matter and if your relief is only to capture let's make sure that senators and the president are voted for the laboratory of democracy is completely destroyed and that is a fundamental issue as to why the individual interveners who are all city council people and people involved at the local level found very very important as judge reyes did when he was weighing those interests with the government's interests against the minimal interests that the that the appellant's presented immediately went to your not able to vote and did some statistical analysis around that without identifying within the confines of the voting rights act or the constitution as to what is the problem with a what is the problem with the what is a problem with c to make that causal link throughout each of them those would be subgroups and each of those subgroups according to crawford are entitled to analysis they did not do that judge raises determination that they did not follow that is a matter of factual determination in wayne the burden they did not meet their burden the burden is on them to do real quickly your honors i know it hasn't been mentioned so far but in regard to intentional discrimination  i really be on to you when i read the briefs i don't know where that lands i do know that in the reply brief they make reference to the city of las vegas but the city of las vegas obviously district court case but in that case it did not mean that the individual legislators opinion went to the entire legislature what it meant was is that an isolated factors a legislator may be deposed for that purpose under masterpiece cake shop for another case they cited for that supreme court case which was limited to the facts of that case it was an adjudicative body it had absolutely nothing to do with the legislature making a determination amongst the body in trying to make the intent of one legislator whether or not that's actually true in this case to the entire body that was completely incorrect interpretation of that case the the other issue that i want to make sure i touch on your honor is we went through their pleadings twenty seven day window judge ray is mentioned that almost on every single page of his opinion and yet we have no real answer from the appellant's as to why it was clear air to rely not just on the twenty seven day window but also on the special election boards also on the curbside voting also on them i read ways of marketing and advertising that multiple government agencies and non profits get out the vote to ensure people are going to the right polling place and ensuring people have the opportunity to deliver in person their ballot it comes down to a security standpoint it comes down to the integrity of the voting system and it's very important for our democracy so as i twenty seven day period through my route of different ways to the correct polling place in is if you choose a vote in person is not difficult if i just may real quick i believe that the supreme court and store made a proper practical point as a practical manner there must be substantial judge raised his opinion recognizes that the debate over h b twenty twenty three was infected by the racially charged video  he recognizes this city are seventy two seventy three he he talks about the two predecessor bills and the very unusual and this is my language very unusual procedure leading up to it as somewhat seventy six through seventy seven and eighty one the court said that some legislators were motivated by partisan interests perhaps implicitly informed by racial biases he then goes on to make i think the finding alluding to that that this was enacted in spite of rather than because of that just great impact fine but there's nothing to support that that is totally unsighted there is no evidence whatsoever that anyone who was motivated by partisan concerns did it in spite of the disparate impact that they were well aware of and that's another finding of the district court on racial minorities  of course part of the supreme court is partisan interests are not necessarily racist and so then made a conclusion based on all this evidence so what is it that makes that a clear  well i think your honor it's not necessarily a clear standard because i think that the failure to is to see that using race as a proxy for partisan interests is is racial discrimination that's forbidden by the fifteenth  fourteenth amendment so you're saying that the clear error is that there was evidence in the record that the legislature was not it was was making in the acting h b twenty twenty  constitutes an unconstitutional use of race under the fourteenth or fifteenth amendment nowhere if it s or courts say at the legislature was using race to promote partisan interests where was that submit your honor that that's a finding of the district court the district court also found that the debates over h b twenty twenty three were racially charged and i have the exact language right here in front of me but but it talks about racial  that were made during h b twenty twenty three's passage pacifically that will far oh and and so you know what i would say is i don't really have that much of a beef with the district court's fact findings here but it's again like in mccoury it failed to see the forest for the trees the only other thing i know i had my time is up but you know again i think that the legally or here with respect to the other issues out of precinct voting age twenty twenty three you know one of the key legal errors is this essentially imposition of a threshold requirement of numbers of people the only other thing i would say is that you know my friend on this i talked about the experts and the linkage with the senate factors is credited our experts and their statements about you know whose fault it is in terms of why people were voting o p in terms of their finding of disparate impact you know all that credit our experts he actually gave their experts very little weight thank you roger thank you