my name is michael markman of hellerman representing the plaintiffs and opponents to santa clara county democratic central committee and its chairman stephen presenter there is no dispute in this case that voter registration is core political speech and the reason that we're here today is because the veteran's administration has given its administrators the complete standard list of unfettered discretion to bar partisan activity on v a campuses we are here because as a v a administrator and member park and since that time v a administrator is in places such as seattle and san francisco are boring members of any political party republican or democrat from registering voters at v a long term care facilities like building three thirty one at the v a s memo park facility we have this minimal have to room in your favor this court could do a number of different things t that monterey county relates to post offices and what we're dealing with the only basis to distinguish what there are a couple of other reasons that doesn't there's a stand for the proposition that a government agency that seeks a across the exercising viewpoint discrimination against political parties we serve the other what it calls nonpartisan organizations in other words the v a is making a distinction between a political organizations like the league of women's voters and political organizations like the democratic party that's the key distinction here and that's viewpoint discrimination because the way that one registers a voter is going to be different depending on which group is doing the registering for example the league of women voters might going to ask a person would you like to register to vote period the democratic party has a specific viewpoint mind they will ask the question would you like to register to vote as a democrat doesn't that just make the v a s case for it that it's partisan political activity well there are a couple of different things going on with respect to yes or no question doesn't that make the case that what you're asking to do is part of them political activity would you like to register to vote a party would like to do is be able to enter a facility and say would you like to register to vote as a democrat what happened as the record reflects a low is that they came without the intent to ask that next partisan question and they answered the facility simply wanting to do what the league of women voters typically does which is ask the residents there whether they would like to register to vote period is mr crimmins are content to simply have that right to ask if they wish to register without mentioning the party as you can tend to have that right well it's a very important right and certainly the democratic party would like to have the same rights that the league of women voters has but no we would ask this court to go the next step and analyze the regulation as a viewpoint the counsel for the secretary where i come from whether you're if you're authorized to register people to vote whether you yourself or a registered democrat or republican or independent you are absolutely for from refusing to register someone who wants to register with the other party and question you propose with the in violation of your appointment as a deputy registrars  are things different in california well in california you're absolutely right that anyone who is going to register someone else to vote is absolutely required to register anyone but you are allowed to say that you were a democrat and you would like them to the prospective voters correct well first we'd like to ask them whether or not to register to vote yes or please answer the question as seen yesterday as question you are asking for the opportunity to make a partisan pitch yes along with and that's legal in california apart from the issue of the v a property that's right ok now what has ended up happening here is the district court made a number of different errors with respect to the even assuming that this is a nonpublic forum and i'd like to start from the lowest common denominator if i might from at least the plaintiff and opponents perspective that this report asked the wrong question here the district court asked whether it was reasonable to exclude scott rafferty the counsel for mr prime minister in the democrat the santa clara county democratic party instead of looking at the regulation itself and analyzing whether the regulation was reasonable or asking whether the regulation as applied to vote activities what the record below establish is that in this case mr prime minister did not go with a partisan intent in mind the democratic party would argue that if you did go with a partisan intent in mind then that certainly would be permissible as well but would rest the concern that the court is just expressed the record below establishes that mr prime minister went without wearing a button and without intending to give a partisan pitch and even then he was barred from registering anyone to vote in fact he was detained for a few moments by the v a police on the basis that he had an impermissible handbill and that was under c f r section one point two hundred eighty nine i believe and pamphlet that he held in his hand was nothing more than a voter registration form a blank one and that's why he was detained if you if we were to rule in your client's favor could the day after we rule someone from the santa clara county republican party come to the v a hospital and stand in the middle of the award and say i'm here on behalf of the local republican committee a anyone who registers as a republican to the day i will bring to the attention of jim nicholson that fact and you never know maybe your benefits case will be very long a little more with th believe that that could conceivably be criminally actionable if he is intending to communicate the notion that he can curry favor with the v a administrator in terms of actually sitting there and expressing that type of political spin in that type of coercion on the residents that would probably relate with different issue it could conceivably be disruptive but you ending in front of them and saying i'm here to registered democrats would know it would nor would he going to the facility and saying i'm just republicans so long as you register is all commerce it's fine now this is an under served population also i mean the record reflects that out of the one hundred fifty or so bad this building three thirty one facility literally in the past ten years before this lawsuit was brought there were only seven people who actually voted there's something seriously wrong with looking at this regulation and finding it reasonable at that point to say that people can't go and try to was unclear to me whether what you're seeking his access to building three thirty one or access more generally to all of the premises and if you are seeking access to all of the premises the specifically long term care facilities but now there has been a cloud thrown up in the district court over whether a member of the democratic party can visit any v a campus anywhere certainly that the public nonpublic forum analysis would be different as with respect to different areas on the campus so for example the streets leading up to the campus might be classified differently than the interior of building three thirty one certainly who bears the burden of demonstrating not to show that the saudis nonpublic that is a burden that the government fears but with respect to the ultimate question you're speaking actually as to the entire facility whether it's people that are undergoing treatment that may require we point to the statistics to highlight the fact that there may very well be an issue here and in order to respond to the government's efforts to see asked that everything's fine that they allow the league of women voters to attend they allow a few other eight political organizations to register to vote at this facility they say that the regulation is reasonable and it's not you point discriminatory because they're serving this population and there are a number of declarations that the government submitted below on that point changing this date it was to accommodate my schedule and i do appreciate that again the first to think institutional thank you judge yourself i do appreciate that to get into the merits of the discussion  i like to point out what i believe are some key points that were just made and also some problems with some of the arguments that were just made the first key point is when counsel said early on in his presentation the way one registers voters is different depending on whether it's done by the league of women voters or the democratic party that's not true is it it's very true i think it's very true and it's it gets to the nub of the problem  us well i think it would be a comes out from the other direction which is that we they are there to promote patient care so when they decide who to bring in to register voters they begin from the opposite end this is something that is not directly related to patient care it's something that we do in order to make sure people are involved in civic affairs so they look at organizations that are specifically known to the public  everyone is being nonpartisan or not or nonprofit and have as having a dedication to do registration for the sake of voter registration education for the sake of voter education not pursue a particular agenda p required by law whoever they are to fill that out in anywhere either through perspective registrant wants it filled out republican democrat libertarian socialist whatever right respect there is no difference between the act of registration between someone from the league of women voters someone from the republican party someone from the democratic party or the head of the elections  as judge selma's question suggests levy a simply say any you can't go into the ward but in the common area you can put up a table saying we're here to register voters you can't wear buttons you can't fly the flag if there is one of the democratic party that you can if people want to come out they want to register to vote they can register to vote what is what's wrong with the concern that the v a has is the same as the concern that supreme court had which is that motivation but i suppose that the democratic party of santa clara county didn't pick up the a home because they thought it would be loaded with potential republicans r conservative maybe because they just didn't know they could register to vote but they were there because they are fielitz furtive ground for registering people that if they go in there and register one hundred people they're probably going to register sixty five or seventy democrats why my guess is that's what they're thinking so why wouldn't they be willing to go in there without any sign or any partisan kind of level and just we'll take whoever wants to register about how the area is under served i think it's based on some spurious factual assumptions which i'll get to later but the main issue is certainly they believed it was from a democrat and fertile grounds registered democrats i believe because it was somehow it was somewhat publicized around this time last year that that because the democratic candidate was a veteran of vietnam that perhaps he was trying to get more veteran voters i believe it was part of a broader campaign to do that and certainly they could agree to eliminate any outward signs of partisanship you know hats no pins but the point is the v a can't have partisanship policeman standing there when they talk to something there's always going to be that risk that's true but the league of women voters because of its nature is a five hundred one c three organization the part that does these campaigns and because it's widely known is a nonpartisan  organization that is interested fairly in voter registration it's much less of a risk and bringing in a national party i figure we're running out of time i want to ask you about the other parts of the campus as it is a campus in the sense of being removed from the outside thoroughfares so the sidewalks there are similar to the walkways in the monterey county case there are outside they're made of the same material they look like sidewalks but and i wanted to make two points in my waning minutes you're the first having to do with this issue about how voters are under served that's based on some evidence from the county record so to say that because someone registered in that county or only a few people registered in that county voted in a lot in the previous election isn't to say that there are people registered elsewhere who just don't show up in that analysis but but the final and most important point i believe comes from the monterey county case and i think the first question this court asked the appellant is the pertinent one which they don't have a good answer  in that opinion this court quote quotes kornelius the supreme court opinion and says in cornelius the court stated that avoiding the appearance of political favoritism is a valid justification for limiting speech and on public forums and that  with kind of an open ended definitions to what's most partisan to the it's true that the definitions are different i don't agree that that the definition is too broad that it can't be parsed well let me ask you registering to vote is not a partisan activity that's what makes an artist it's what the supreme court i believe noted in the mcconnell case because they specifically talk about partisan voter registration which is that the parties put a tremendous amount of effort and money behind it using voter registration drives to register people to their parties not just any party certainly if someone said well i'm too too democratic party member i want to register green or i want to register something else  they would be allowed to do so but what's what's worrisome is that the register the person doing the registering has the motive to try to dissuade them rather than just simply say ok they have a very specific motive that that is what concerns  actual political party so they're all registers are individual human beings yes it's not a corporation walking and certainly so what what do you say if someone doesn't have on a button  be registered as a as a republican but i'm certain that that by the nature of that organization that they are trained very specifically about that is a nonpartisan function of their job  last concern with the fact that that a voter registration person may ultimately just refuse to register someone is a republican or democrat whatever the case may be the concern is that that person is coming in  you want to be a republican but i frankly i can't speak to that specifically enough to what that state law issue ways but i i think the distinction is what's worrisome is the fact that they're coming they're not just to refuse to register that the facial challenge has to be brought low for carol circuit and if that is what this court finds then we would ask that that portion of the case be transferred there but we believe that this courts and the district court both have general federal question jurisdiction to deal with this issue because we're not asking for a chevron review we're not asking for an a p a review on where they have to go back to washington or give this new issue in front of a bunch of patent lawyers then that's what we'll do as a matter of fact your honor i practice intellectual property litigation and we're doing this on a system if that's what i need to do then that's what i will do but this court has the jurisdiction to do that and even if we decide that this is a nonpublic forum here what we've heard is the government's admission that this is viewpoint discrimination nineteen eighty four getting into this had to decide whether or not he is going to make his partisan pitch and whether he is going to push it too far or whether he's going to violate the california election code and refuse to register someone who says i before that so one can encourage without violating the elections code by coming in wearing all the democratic stuff and saying i really am believe in the democratic party of the republican party and i'm hoping that every one of you who wants to register only nonpartisan groups to come in and then we are pretty sure of the thing all stay nonpartisan otherwise we have to have somebody standing there to make sure that really do what they're supposed to do not in phylicia of a want but not in violation of their rent regulation about partisan activity so why should they have to go to that trouble of the first amendment says the first amendment gives the government an the v a make that distinction here unlike the monterey case there is no other way to reach these individuals in monterey all you have to do is move to a different sidewalk just down the street here there is no other access to building three thirty one i see my comments off i'd be happy to continue