i represent state or defendants the issue before the school board is whether the north carolina general assembly intended to discriminate against black and hispanic voters when he  the district court erred yes you i'm sorry i'm sorry to interrupt but before we even get to the merits we have these motions about mutinous in front of us now and i was hoping you could address one question for me  assuming i agree that this is not moot in the jurisdictional sense assuming i agree with you that it's not impossible that these schedules will change and we could end up with a federal problem an area injunction still in place and having some effect what about prudential mutinous we've held in some cases that when we're facing a difficult and sensitive constitutional issue we should we can use prudential mutinous to avoid unnecessarily addressing  it and i was just wondering whether that might apply here where it's unlikely that this injunction will have any concrete effect and where the question is certainly difficult and sensitive and if we dismissed and vacated the district in consideration of various federal laws and as a federal law as guidance is the federal courts guidance on federal law might actually change the outcome of what the state courts will do so in addition other errors you talked about seem to discuss the way in which the district court weighed evidence and that's an issue that every which a district court is given discretion and so it sounds to me like it least for the issues twenty three dollars and four dollars you're talking about improperly weighing evidence which i'm concerned might i understand your argument and i read the district court opinion closely and i see the parts are talking about what's confusing is that there are other parts right where the district court clearly properly states the burden of proof and purports to be applying it correctly so i end up a little bit confused on this it is difficult to separate wins a burden of proof is mistaken to be king and the court requires the state to disprove that discriminatory intent has occurred it has affected the remainder of the court to other laws is interesting to me and if you could help me with this issue you know one way of what we might look at that is to compare this law to the other laws that have been declared yet satisfactory under the constitution are not unconstitutional and maybe you're right it's more lenient or at least not you know less lenient but does the procedural framework of this case you know you call for that type of analysis in other words i think a lot of those cases came after trials on the merits and so we would be looking at those issues with the perhaps different standard to review them we are here with the police marion junction so help me understand where the we're supposed to do a straight comparison or whether the procedural position of intervention but even on the record that has been accumulated it is our position that that record did not with a law district court's finding or discriminatory intent and that was a reason  a separate question that to the extent that rob when you say that we have all the evidence and that discovery is closed do we take from that that the state board is not going to offer any expert testimony in this case and i'm just trying to understand what you mean by we have all the evidence at trial is the state board not going to respond to the expert testimony that's been provided by the challengers so without disclosing too much of litigation strategy at this point what i could tell to the court is that we provided people who are experts by professional training maybe not to retain that sports but to act best expert professional with professional experience we have is a employee of the speed  not and not i don't i'm not asking the details but you just said we have all the evidence but then you say well wait a minute here's this other evidence that maybe is going to show up at trial i just will understand what you mean by we have all the evidence now nothing new is going to show up that they don't seem right it seems like you're saying you've provided notice of some other people who may testify understand because i thought you said in your brief and i noted it because i thought it was pretty compelling that this record was underdeveloped that it didn't make sense to do this on a perimeter area injunction and on an underdeveloped record but but now you are saying even if there is a trial nothing new is going to come out of the trial nobody is going to take the stand and it's but of course for of course people will cake stand potentially during the trials a point we were making with the underdeveloped record i spent a decent amount of time with the record and you know there's experts that the point of submitted you know or you know it looks like without objection you know which is a separate issue but you know there's no evidence and i appreciate those arguments but but it did it but it would seem to me at this type of proceeding you have to show that the judge is weighing of the evidence was inconsistent with the law in some way rather than they should have credited you know the evidence you put forth versus the evidence that the state the plaintiffs put forth i mean know yes you can i ask you a question about that you were just talking about how in these other cases similar laws were upheld notwithstanding a finding of  for possession of the relevant i d s and i guess my question it's similar i guess the judge called a bounce question but slightly different is what we're supposed to do with these cases when the relevant question is  intent and not just the impact because i mean i'm thinking i guess of the establishment clause cases where you know in one jurisdiction they can have a moment of silence law but in another jurisdiction the exact same statute is unconstitutional because the plaintiffs are able to show it stems from an impermissible purpose and so it wouldn't be inconsistent legally to say that the exact same voter id law would be permissible in one jurisdiction where there is no evidence of an impermissible discriminatory intent but impermissible and or jurisdiction where there is such evidence and so that that's the part i'm struggling with in looking at these other cases we agree that impact is one factor that is important  adopted as part of the law also becomes important whether all nor any opponents made any comments that were positive about the legislative process involved also because it was on the up there was any bipartisan because it's because i'm comparing it to something like the south carolina case where the only evidence they could find of discriminatory intent was if i'm remembering right a constituent had emailed one of the legislative supporters and said something even sing a discriminatory intent in the e mail and the legislature had not quickly enough disclaim the e mail something like that whereas and so in south carolina they looked at a similar law and said given that that's all you've got on discriminatory intent we're fine with this i mean the discriminatory intent case here is somewhat more substantial right and you want to i think the really important cases to compare on that let me tell you my concern i guess i agree with you that this case is there is less evidence of discriminatory intent in this case than there was in mccrory i absolutely agree with that and also looks to me like there is much more evidence in this case given the history very recent history very serious history and the sort of factual linkages that the district court found between the predecessor on the successor law i also think there is much more here than there was in cases like lee and south carolina so i feel like we're somewhere in between and i'm wondering how i'm supposed to deal with that i think that's why it's really important for the court you know understanding that we'll  law i know i can't wait if i didn't just ask if either of my colleagues has questions and if not we'll let you rest and come back on rebuttal ok thank you very much good morning your honour's and made it please the court i'm david thompson for the d intervenors and with the court's permission in the state in we have agreed that i'll handle the rebuttal and we'd like four minutes if that's acceptable to the court thank you so i'd like to dive in on the question of these other cases and whether we're asking the court to reweigh the evidence or not the key case to look at is south carolina and south carolina concluded that there was no and disparate impact and there was no disparate impact in that case because there was a reasonable impediment provision that was very similar to the one that is at issue here and judge  kavanagh concluded that in light of that there could be disparate impact and that's the end of the case for the plaintiffs because under irby if i could stop you there on counsel i mean and you probably have it more on your fingertips than i do but my memory of the south carolina case was a reasonable impediment provision but the absence of evidence that it had not been in effect and the district court in talking about the reasonable impediment provision here look did evidence that in two thousand and sixteen the reasonable impediment provision which i agree and she was not exactly the same had not been affected so why do we how is that kind of a show stopper type issue when south carolina seems to open the door for this case the plaintiffs have to prove both discriminatory intent and discriminatory impact if they fail on either problem they lose in the th circuit and on disparate impact we except for purposes of this stage of the proceeding the finding of fact made by the district court that there were one hundred and eighty four reasonable impediment ballots that were excluded and that fact is the end of their case and let me explain why because the intent that they are trying to they have to harmonize their theory of intent and their theory of impact their theory of intent is not that the general legislative general assembly tried to target out of racial animosity minority groups this court mccrory specifically disavowed that no their theory of intent is that the general assembly tr intrench itself the republican majority did by targeting african american voters who vote democratic that's key because if the impact they are identifying cannot intrench the and further  alleged purpose of entrenchment then they lose and when you're talking about a state with ten million individuals and seven million voters two million of whom and it in two thousand and sixteen and you only have one hundred fact that the general assembly looked at that one hundred and eighty four number and then took three separate steps to drive it lower they made free i d s available at one stop showed voting they made it more narrow counties like i do you want to go back to  say about one hundred and eighty four dollars i thought the district court was very careful to say that the disparate impact would come through the chilling effect as well as through the actual exclusion of ballots and that once people understand that the reasonable impediment thing doesn't always work they will be less likely to try to vote if they don't have a qualifying id on the dissuasion point your honor those who are generally presumes that people understand what the law is and that makes particular sense here because there are four separate mailers to every household in north carolina under this law there's a th mailer to those who are in the d m v no match list they also have no evidence none up whatsoever in this record that those five mailers would some be ineffective their argument proves too much if five mailers and there's still some residual confusion then there be very few laws indeed and they also haven't shown any marginal impact to the extent there is confusion  might come from the constitutional amendment they didn't challenge that so they'd have to show and the district court made it legal error here not analyzing the marginal dissuasion from the was opposed to the moment as your own just before we leave the reasonable impediment thing so one of the district courts concerns was about the subjectivity of the law and i know you are i'm remembering the briefs right someone i think it was the intervenors was a great pains to explain that there is nothing subjective about falsity which i totally understand but i think what the district court was concerned about was the grounds to believe part of the statute and that there was no guidelines as to what went you know if you're a county a member of a county board and you're looking at one of these  ts that says for instance my work schedule precluded me from getting an id card there was no guidance as to why it would be a reasonable grounds to believe that that was not true and it seemed and i just said since i had since i had the members of the general assembly up here i would try to get an answer to this question because it seemed like at the in front of the district court the state's argument was you're right and there will never be such grounds so this is basically an in effect this this  this part of the statute will never be enforced but that's an you know we try to avoid interpretations of statutes that render the meaningless so can you tell me what that part means the part about what counts as grounds to believe something is false  example of what might be grounds on the face of the ballot or i'm sorry the affidavit for thinking it's false a single even hypothetical let alone i'd like and here's where the question ok your honor but that you to answer the question you st need to try to identify a situation in which this would come up and just let me let me tell you where i'm going to be maybe that will add an evil you to just answer my question if the district court seems to have found that there were and the state seems to have agreed that there would be no circumstances under which a board member would have grounds to believe that in  affidavit was false if that is so i am wondering why there is something in the law that says these affidavits will be reviewed for falsity because that seems to me to create an extra an entirely unnecessary chilling effect if this is  meaningless provision of the law that's where the voter comes in i'll answer your question directly and i'd like to amplify my answer if a voter comes and tells everyone in the polling place i forgot my idea at home i have an id but i forgot and they say ok well here is a provisional ballot and then they check other and they give an excuse other than i forgot it at home then they've lied that would be fault your honor ok so that's an example of we have never taken the position that this is meaningless and  reject the idea that it's meaningless and what i was going to say about the one hundred and eighty four is that confronted with this miniscule number the general assembly drove it down by eliminating the bases for saying that you were denigrating the requirement which proves previously a basis for rejecting a reasonable impediment ballot making nonsensical statements was previously a ground that was rejected and then there are the the eliminate the issue i think i understand the defendants and the legislature's position concern expressing concerns about the extent to which the district court considered evidence about the prior law and maybe or and as you say shifted the burden of potentially on they are so i get that point but the two things i think it would be helpful if you could come in on one is there there i think still is the right in the record in that the judge hears talked about the record here being different than some of these other cases evidence of these on the o j objections these other wall suits that's part of the historical evidence here and even the evidence that related to the prior  exist now should we give it none should we give it some what what's the role of of of that evidence here ok so let me answer their two questions your honor let me take them one at a time if i may  question about the other lawsuits they point to fifty five lawsuits forty five of which were settled there were only ten that were due to kate and the last time the state of north carolina the general assembly other than mccrory was found to have been acted discriminatory legislation was decades ago in one thousand nine hundred and six so the general assembly should not be tagged with what some localities or may not have done and settled the case so it would reject the relevance of those suits now with respect to your  nd question of well what about what happened before mccrory was emphatic that it was emphasizing the omnibus nature of that legislation which was critical because remember the intent was not to target out of racial animosity but was too entrenched and so you're looking at an intrenchments motive you look at the sweep the scope the character the magnitude that's the phrase that mcqueary used and here we have one law which is incredibly miniscule and they tried to drive that minuscule number down through the mechanisms of just identified yesterday terrorists would we look at what happened to the other parts of the on the bus and you know at the hearing expressed some concern that if all the legislature had done was break up an omnibus bill into several separate bills that really wouldn't show much about a changed intent so so what's your response to that your honor i don't believe that has happened here so that's an interesting hypothetical and i don't know the answer to it but it's not the facts of this case the legislature did not go in and eliminate these other things that came back to this issue and the people another thing about the history is we have an independent political actor that breaks the causal chain we have the people of north carolina coming in and saying we want to have this law putting it in the constitutional amendment the plaintiffs could have challenge that they made a strategic decision not to challenge the constitutional amendment and so this court has to take that yes your own so just to follow up then i i mean i get the point seems to me like you're arguing that the historical evidence from the prior law and the historical evidence of the d o j in the litigation in other litigation matters is not is not relevant or not sufficiently or  not sufficient to show discriminatory in kenya i guess my question is is it's evidence in the record so is it failure for a fact finder to consider and you object to the weight that it's been given or is it something that should be outside of the district court's consideration altogether we're not saying it's irrelevant your honor but what we are saying is that that they have to prove intent and impact and if you just focus on the impact side of the ledger the undisputed fact is that there was only one hundred and eighty four dollars votes that were disregarded that cannot be sufficient to support a motive of intrenchments and on that basis we win and i'll reserve my four minutes for rebuttal if i may thank  further elections go until september that he has no elections in which must be a twenty four is implemented will proceed before the district court in this case is uses final decision following trial and this court therefore cannot grant one district court you know in california has enjoined the public charge of all that doesn't deprive another district court in another jurisdiction from its of the jurisdiction article three jurisdiction to enter a similar injunction scheduled in january the court can drop factual conclusions and differences from that evidence and that evidence suggest a point or injunction in this case is not likely have any effect and to be said there's any doubt about that you up in it's for too long so i sort of in kind of looking at the schedules and knowing that schedule sometimes change i was sort of where you are in thinking that it is unlikely but not impossible that this preliminary injunction will ever have concrete effect and that's what took me to prudential mootness because in that situation that's usually the bucket we're in but the state has made this has every spondon to that with the idea that well for prudential reasons we really ought to go ahead and decide this case because that would give some helpful guidance to the district court well if there were exit it would get helpful guidance on these federal law questions so what is your response to that  germination whether there really isn't a possibility that the illinois injunction will have any concrete effect on any party we've laid out why we think that dozens patton were willing to have it be hated as an aspect of the word dismissing the and you give some examples of public housing authorities as the type of i d s that do have a photograph id would that fall under  representative richardson's proposed amendment for state i d s at least under north carolina not law it appears that the local housing authority is not a state entity and so what i'm sort of curious as to why that example would qualify as a public assistance id under represented richardson's proposed amendment that makes sense it does or i'm not sure i can answer the question  d s and specifically state public assistance i d s and representative lewis says there are no such i d s that have photographs on them and nobody disputed that in the legislative history and it seems like to me that that's like factually accurate and so provides a you know bona fide legitimate reason to rid to not include a null set right and you do that by saying well what about public housing authority i d s but they are not state public assistance i d s they're local agency id and so i guess what i'm trying to get at is if they responded to that complaint by saying you're asking to include a null set how can how can we infer from that some type of discriminatory intent your i would take a step back prior to the discussion but none of them have photograms so the fact that they are more owned by minorities i'll accept that is true but if no state public assistance is i d d state which is what you've asked for proof and i want to kind of go in that general direction yes abbott aside from talking about al gore very related to talking about the burden of proof says that there should be a presumption of good faith for legislation and and obviously that's in of redistricting case rather than a voter id case so my st question is do you think that holding of a presumption of good faith applies here and if so did the district court articulate that at all in its opinion you're  heights initially is on the white house on the challenger to demonstrate that the law was motivated least in part by racially discriminatory  river reasons for passage of the law were what had motivated its passage notwithstanding the racially discriminatory types so so it sounds like i mean it sounds like you agree because you didn't say no talking about that burden to say a presumption of good faith and you don't seem to want to recognize that and if there's a reason legally that's not right please correct me i'm just trying that that t informs the burden that exists and that and i'm pretty sure the district court never thought about that so if i for my legal analysis all please let me know i don't want to cut off trying to call it on but i have the exact same question so can i try to i want you to answer us i'm trying to figure out whether what you are saying is that the presumption and burden are one in the same thing that all the court means in abbott is that because there is a presumption the burden is on the which i really want you to answer the class still i mean i understand judge harris's point i understand just quote obama's point i have no idea what you're saying like i just want you to answer the question i mean i don't what your answer kit by the way i'm totally fine if you say i refuse to answer one way or the other like i have no idea what you're saying right like so abbott says there's a burden on the pla and there's a presumption of good faith and we know that presumptions and burdens are naturally different maybe they're the same as judge harris suggests and that's a fine answer which i believe means yes there's a presumption  good faith but it means nothing more than the burden but i think judge ayres is saying there is a presumption we can talk about what it means but you you for some reason i just can't figure out refused to answer whether there is a presumption of good faith or on ok let's limit can if i could follow up with a other point let's assume our analysis not and i'm not suggesting if we look and say look these several laws have been up hailed and we're looking soley on that issue yeah it would would it and again i'm putting aside the historical facts that i know you would talk about out yeah but just looking at the comparison the walls it doesn't seem to me that you could really say that this wall would be unconstitutional back comparing it with what's been up held in these right my genuine concern about this case and i'm struggling with is how much weight you can put on the history here and i take your point that in all of these other cases there were there was not the same kind of kind of immediate historical evidence that we are grappling with here and i understand that we can't just ignore that but at the same time we are instructed in the advocates and we said this in the corey chewed that the fact that a legislature passes one voter id law with a discriminatory intent doesn't forever disable the legislature from passing a voter id law and this one is better right it has these ameliorative features that the prior law didn't  have and those are features that as we just discussed you know other courts have sort of specifically approved and so mike what i'm what i'm concerned about or guess my question is i guess if this isn't enough like under question at the outset contest matters so the fact that this law was passed in the context of not just history but contemporaneous action by the mayor of kauai not general assembly to undermine the you could just get the i me out mean to interrupt you but we understand the historical issue i mean wait we've read about that we understand who they are if you could answer your question is what in terms of terms of the legislation would be ok in you could start by not saying that they're intending to pass a law with the same purpose as eight thousand five hundred and eighty nine dollars if this were found racially discriminatory they could start by avoiding disparaging the court's decision in the current judges who issued that decision final days of a supermajority that was achieved through racial racial very mannering allowed one party to ignore his earnings of the opposition and of the governor or carolina they the broader reference was made to the fact that in some states there's a broader list of ideas but it's really important to understand that a legislature can protect the franchise in this type of law in one of two ways one is having a sweeping number of i d s and the nd just to have a sweeping reasonable impediment provision the reason that's what it does so if you look at i can i stop you there because this is actually something i was hoping we would get  i don't understand that i mean just speaking from common sense as a voter it's obviously much easier to vote in a voter id state if you have an approved id it's harder to vote it requires more effort if you have to show up fill out a declaration fill out an affidavit and you might think that that that difference is pretty marginal like whatever it takes a couple of extra minutes you have to swear something out and someone's going to be reviewing it to make sure it wasn't false  modest extra amount of work but it is an extra mount of work so i don't see how those two things are equivalent like if you have to go through the remedial provisions you have made it harder to vote you either have to haul yourself over to get the voter i or you have to show up and fill out all these forums and swear under penalty of perjury that this stuff is true it's harder you might think it's a marginal difference but it's different so i don't it's not hard and things are equivalent it is not h awe and judge bates and judge toler catelli said it wasn't harder ex ante because the lines might be shorter for the reasonable impediment so you can't say that it's harder number one number two and joe forward in his it was very clear on this that the one stop voting you can go and get your free id when you one stopped vote so there is zero and i mean zero marginal cost to getting these free i d s ok that the dismissal you think that comes back to the district court said there is a cost to getting the free i d s that there is a cost in time that it's a burden you think the district court mislead the evidence on that but i think the district court did not consider the fact that you can get it at one stop voting now the other point i would make is the my prime for the n a c p said well you could have a truly bipartisan situation in the lead in for doing it there was one democrat and one independent here we have four democrats four democrats who supported this law it was which we are told will retrench the republicans why would four democrats vote in favor of a law that would intrench republicans it simply doesn't make any sense they talk about bipartisanship here we had an african american primary sponsor joel ford who opposed five hundred and eighty nine he opposed the law that was an issue in mcquarrie and he was a primary sponsor here and if you read his declaration it j two thousand and sixty eight you will see a process that was both regular and that was quintessentially bipartisan you see that in j seven hundred and sixty one to seven sixty three which is a critical provision portion of the legislative history whether legit representative richardson and lois are talking in good faith about the amendment to the public assistance id lewis invites another amendment and it never comes we're told that some of the other states like alabama have extensive education this law requires for mailers to every state residence in the house and a th one to anyone on the d m v list we're told in other states lots of people have the it's here ninety nine point nine percent of the people who showed up in march of twenty six team have the i d s and really when you listen to what were they supposed to do there was not a clean coherent answer this was a bipartisan regular process done in response to the compelling governmental interest of it hearing to the constitution of north carolina which under with mar is a compelling governmental interest of there are no further questions  thank you very much thank you very much normally we would come down now and she cans with counsel we regret that we are unable to do that but we do thank you very much for your help today and we appreciate you being here we will take a very brief recess now just so we can get the new lawyers in place thank you very much