failure to fully consider our constitutional claim that section two cases are fact intensive and therefore rarely suitable for dismissal at summary judgment this case is no exception yet the district court improperly weighed evidence and resolved disputed facts in favor of the secretary of state about h b nine hundred sixty mentor results for example the evidence showed that african american voters and latino voters were disproportionately more likely to both lack access to be a cold and lack  access to excuse me to live over five miles id for away from an idea issuing office had the district court dismissed these burdens however based solely on the secretary of state's mobile units and  nature of whether or not these home visits and mobile units were sufficient or not is exactly the kind of issue that needs for salt after a trial plaintiffs presented evidence that centrally went to whether or not these mobile units were in created didn't fully consider issues around whether or not african american voters face a disparate impact in terms of the senate factors in terms of turnout evidence isn't it factors are far far more interest can you say the ninth gangle factors that the interest the state is seeking to further is tenuous and class in this case i don't understand that well your honor to answer a question the issue in this case is a section t preventing vote fraud every state and you don't have to put in evidence saying that yes how how we can hope that the state's interest in preventing vote fraud is tenuous well i think your honor you know your honor there was some testimony from advocacy groups that they had had issue with latino voters whose names didn't match the id that they are they found some that didn't match but was as i understood the state and th good morning your honor my name is natasha murray on behalf of plaintiffs whether the legislature intended to discriminate when a knack to be nineteen is a classic question a fact that is not suited for summary judgment on pages forty two to forty five by the district court's opinion it the material facts that show that the legislature enacted h b nineteen at least in part to depress the growing black and latino vote yet the district court improperly ignored this evidence of discriminatory intent based on speculation that the law had no excuse me how would that factual issue i've always wondered when we talk about legislative and fans and you know there's been so much conversation about the supreme court how does the legislature have one intent  show what one hundred people intended so in that record we have evidence of the sponsors and their intent that goes to discrimination and this court has had and held in stallings that when there is evidence that some of the sponsor intent of the entire legislature is the thought that if you didn't have sponsored you wouldn't have legislation in there for it to but for causes that i'm trying to follow this out i don't understand how you get to a collective intent from comments or thoughts or even an affidavit to say one person said the reason i supported this bill was i had racially discriminatory intent what  about the hundred four so also it's important to remember that we here are the six plaintiffs have put in evidence that the sponsors were motivated by intention discrimination and this evidence is sufficient to create a travel issue that the district court should have looked at at trial laws and given that the sponsors we have evidence of their intent that is from which a court there's a dispute as to what the intent to was the district court here decided this case it summary judgment what were the the court could have found that they intended to discriminate the other laws that i also mentioned furthermore we have put into evidence one hundred twenty five page expert report which is at an appendix four to fifty two dash nine and what our expert goes through the history leading to the passage of h b nineteen and the passage for the fifteen years right legislators after the passage of the n p r a and their rising black voter registration attempted to pass a photo id bill and the struggle for fifteen years is permeate know is required by the arlington heights factors the question is whether the law bears more heavily on black that that doesn't mean that they would have voted had they had to voter id requirements not been a fact the question we are at least  probing for is what evidence is there that someone who would have voted didn't vote because of this requirement well we have in the record evidence of the provisional ballots and that which means that voters went to the to vote on  that for example one voter had to call his state representative and that state representative had to call the secretary a number of times before they were able to get a home visit for and have any evidence in the record that somebody wanted a home visit and could not did not get one i don't believe that is in their record but i think also it just goes to the fact that there are you know at least one hundred thousand voter that that photo id and yet the secretary  been able to provide five home visit it's a question of fact as to efficacy of this program well i think we would all agree georgia has just gone through an election not everybody votes in fact it's you know small percentage so simply the fact that there are number of people in alabama who don't have i d s and only five home visits i don't see the correlation that therefore they're missing you know the rest of the population that they haven't been requested i don't know how relevant that is and i guess what we're trying to get at is alabama has taken a lot of what more could alabama do to ensure that voter i d s are made available to everybody in alabama i mean mobile units home visits go to the centers what else what could alabama do to make this program ok under your argument and i think to go into your original question judge brands about what they're only five home what that means i think that's a question of fact that should have gone to trial whether they the secretary is claiming that this is sufficient and effective we have put forth evidence that it is not that is a question a fact that we think requires at this stage a trial oh  was stipulate that this law was enacted far and permissible reasons racial discrimination and we've struck it now and then the next legislature comes in and they're never the after the elections and then act the same long and say we're sorry about that other bunch of clowns but we're doing this for the same reason that the supreme court held it was ok for the state of indiana illinois whenever it was an act of one we do not have a discriminatory intent at all is that ok does that second statute get tainted by the collective or sponsor intent of the original and different sponsors of the sponsors from the first legislature though does it make any difference at all they're no longer sponsors is that ok are we are we are is it for ever once you have somebody in one legislature with a bad intent you can never and that a statute that everybody agrees or at least that i would hold is permissible if you don't have an improper intent you know we're not saying that  bill is passed in new by a new legislature where necessarily be motivated by intentional discrimination but what would be required is to go to the arlington heights act as we have gone through here to see the mode at that legislature and s that is what is required that if that legislature didn't act any redistricting provisions that were struck down and you didn't have the remarks that were brought out in the trial the racetrack trial  except that's ok then this if this same legislation were an act in legislature let's say one hundred percent african american legislature example where there is none of the arlington heights factors and this law is inactive and new i think we would concede that there may not be a constitutional violation and we can't say may not be of course that may not be and there may be what i'm saying is this legislation itself is constitutionally permissible under the prevailing supreme court decision and the weight of authority from other circuits the your case rises or falls on both racially discriminatory you mr davis and we took them over five minutes so we would give you an extra five years alone thank you judge thank you chief judge carson may have pleased the court i'm jim davis arguing for secretary merrill the undisputed evidence in this case shows that any voter in alabama who needs a photo id can get one even if they have no birth certificate in even if they have no access to transportation getting an id is just as easy for minority voters as it is for white voters and no one has any less opportunity than anyone else to participate in the political process as a result of this law and certainly not on account of race so we urge the court to affirm the district court are there some statistics to the contrary i mean you're saying that all things are equal but there was some statistical evidence that suggested that there was a difference based on race if you're speaking of the right to possession there is some statistical evidence that blacks and whites may have different rates of possessions of ids at any moment but it's our position that that doesn't matter that that's not material to the claim what matters is whether those people who didn't may not have an i d today whether they can easily get one on the section to claim section two is only by laded if a practice or procedure affect someone's ability to participate in the political process and if someone without an id can get one very easily then they're not prevented from voting their rights not a bridge they c easily participate in the political process on the same grounds as everybody else but we would have a different case if say in the original as in the original incarnation of texas as law there was evidence that some people were having to drive over one hundred miles to get an id here you only have to go to the border registrar's office there's one in every county and you don't even have to do that for voters who are able to do that the home visit program is available and judgment you ask about the home visit we don't think there's any dispute facts about the home visits it's true that there's only been five at least at the time of summary judgment but there's only been five request and this person who state legislators who are called secretary meryl this was a voter who was exempt from the photo id law that was a voter who was disabled when he called to talk about home my days it was explained to that voter that he did not need a photo id for voting because of his disability and an exemption under the law for the photo id requirement one anyway and secretary of state said someone to his home and provided one to him and that is available for any voter any voter who needs any voter who is unable to get to the border registrar's office secretary merrill will go to their home or why about the issue that was raised on the provisional ballots so this is where a time constraint comes into play somebody walks then on election day to vote doesn't have the id cast a provisional ballot and now the clock starts ticking as to you have a certain period of time to get a photo i or your vote is not going to be counted so let's talk about that's a you know before the election you have time to do this but if someone says ok i'm going to need a home visit how can all of this be accomplished before the time the clock runs out i think it could be difficult to schedule a home visit in a three day period i think it is incumbent upon voters to do some planning and i think it this rule reasonable requirement when we've made it so easy and we've offered to go into the living room to provide the photo id of if a voter goes to the polls without a photo id yes they can cast a provisional ballot they haven't all i think the friday after election to get a photo id and curate if they can get to the registrar's office they can get a temporary i d immediately and thereby cure the provisional ballot but the evidence in this case about provisional ballots there is some evidence that some provisional ballots were not cured no the reason a person may vote it could be that that person has no idea at all it could be that i show up at the polls and i left my wallet at home i have an id i just don't have it with me at the polls at that point i've got three days to curate and if i don't curate there could be a lot of no evidence in the record as to why someone voted provisionally or why they may not have cured it i thought about all action procedure were that own kind of task that might be a different category not suspect i don't even count those unless the margin unless the number of them exceeds the margin of difference i'm wrong about that judge i'm not sure that that hasn't come up in this case my understanding of the data that was at issue in this case were when provisional ballots were counted but some of those were not cured and what we don't know is the reason why they were not registered when you say they were counted do you mean they were put in the tally yes or the once t provisional ballots that were cured were counted the ones that were not cured of course were not counted and we do not know why those ballots were not cured in this case the district judge decided on the case at summary judgment and the court skipped over the first prong of this two prong analysis skipped over in ten and went straight to effect isn't that a bit unusual in this kind of case that a case would be decided at summary judgment i mean and in fact the court sided a case frank vs walker from seven circuit frank involved a trial where it considered testimony by wouldn't why wasn't that the appropriate way to proceed here well just as we believe we were entitled summary judgment in that we showed it in i don't think it's unusual in an area of the law for there to be you know a few cases where you have been trials or even jury trials you settle some legal issues and at that point the law becomes a little more settled and then summary judgment becomes more appropriate we agree completely that it's rare when a case of this sort but not only that but in this case there i mean are you just are disputes of fact we do not agree that those are material or genuine just now what about what about though the statistical evidence and i know that there was some dispute among the experts in that case about what those statistics were and what they what they meant but regarding the acceptable id possession rate as i understood it  the parties kind of agreed that black and latino registered voters are almost twice as likely as white voters in alabama to lack an acceptable photo i busy he found the position rates about ninety eight point thirty three percent that there was some discrepancy in possession rates about a one percent difference between the races and this court and it was an underwood versus hundred found that there was less of a disparity and found that that was sufficient evidence  of discrimination so so here you have you have a greater percentage why wasn't that something that would have been sufficient for the court to find a genuine issue of material fact to at least  a trial we contend judge tells it was a different kind of disparity in hundred vs underwear those were people who had lost their right to vote on account of felony convictions some voters were disenfranchised here this discrepancy is about people who may not have an id at any given moment not whether their right to vote has been impacted they can still but now you're trying to you're trying to separate their having the required id to vote from actually voting i mean i mean they're connected in this case aren't related but there but they are different because a voter who doesn't have an id today if you can get one so easily if we will go and take your picture while you're on your couch then your right to vote isn't impacted so we we think judge that the district court was correct on the intent claim to say wait a minute this this doesn't hurt anyone's right to vote i don't have to go through all this other evidence oh wait whoa whoa whoa he's the judge didn't analyze the intent though  correct correct he determined that with no he determined that the law does not discriminate and when there is no discrimination there intentional discrimination and there's no discrimination when it comes to a person's ability to cast the ballot not when it's so before the voting rights act was passed alabama and other states he's literary tests poll taxes and good morals requirements to discriminate against minorities in some cases voters were not permitted to cast a ballot unless they got a voucher from one or more other voters accent or a that came later in the order not in an analysis regarding intent how could a judge with all due respect to the great state of alabama knowing the history of voting in that state and the timing of this law after that section of the voting rights act was eliminated not even discuss intent now the conclusions may have been the same ultimately but to find that there was even worthy of discussion that seems a bit odd judge cooper  did not tell us why he did not say more about intent except for the fact that he found there was no discrimination and that in his view without discrimination there cannot be intentional discrimination and we think he was correct about that and you know we do think he knows too that alabama's not the alabama that had the literacy test and some of the and i'm not suggesting it is but what i'm what i am perhaps suggesting is maybe these were issues in dispute for which the court should have had a trial as opposed to resolving this in summary judgment i don't know how judge it is not in dispute that these things happened in the sixty's it's not in dispute that the legislature passed the immigration bill is senator basin former senator bayh some one out of one hundred forty said some shameful things unrelated to this law is not disputed that they're edicts and said what he said although we think in context it's not so bad as we explained in our brief however those in fifteen years before this law was passed and he wasn't in the legislature when the law was passed we think can you come a can you can can you tell me an example where a judge a district judge has decided  this kind of issue at summary judgment other than for example when there's a facial challenge that when there's a when a decision regarding intent and effect have to be decided can you give me another example of a case where it's been decided summary judgment i'm not able to now judge i've been focusing so much just on these photo id laws and it's true that most of those have been decided after a bench trial but we do of course it is the best procedure  entitled to under rule fifty six we think the best procedure is if there's no dispute of fact and we're tied up to a judgment of law that we get it but on this intent claim judgment we do think that judge cooter was correct when he found that the law had no discriminatory impact and therefore there was no need to weigh the evidence but if this court disagrees if this court thinks that the you may no need to weigh the evidence on intent that is what i mean judge that the dish no need to consider how scott peterson fits into this because what the legislature did did not in fact discriminate but the judge seemed to accept the number of representations from the secretary did you know about the availability of mobile service  that the secretary statement that no one is ever going to be denied a voter id that the judge has accepted those statements he was required to rule fifty six because there wasn't evidence that those statements were fast he said yes the mobile unit is available but it mean there were some evidence in the record is there not that the a veil ability of the the mobile unit absent some intervention by other government officials or the secretary i'm self i mean are those things that would affect the credibility of the secretary statements for which a trial having the secretary testify allowing cross examination isn't that the best practice as it would be in any other case if there may be some advantage that judge but if there's if plaintiffs do not meet their burden under will fifty six to says here's evidence that effect then we have to have a trial without that they don't meet their burden by saying you shouldn't believe them they're alabama they don't meet their burden by saying you shouldn't give them credit for that not without presenting evidence that contradicts it therefore we think that the district court and with respect this court is obligated to consider and accept the evidence that we presented this is not disputed o court decides that the evidence of the different rates of possession is enough that you should go through and look at the evidence regarding intent has been presented we still think we're entitled to summary judgment summary judgment standard is not that there just be some dispute somewhere of fact this got to be a genuine dispute it's got to be as the court said and this week or said in anderson versus liberty lobby is similar to the directed verdict standard is there sufficient evidence or excuse me is there sufficient disagreement to require a trial or is it so one sided that one party wins as a matter of law so we would escort to look at two thinks look at the context in which alabama passed this law and look at what we actually did the context is that alabama didn't invent photo i d laws there are thirty four states now with some type of voter identification walls and seventeen or half of them require photo  context as i understand it there's really no evidence in person voter fraud in alabama correct that there's evidence of two cases yes of absentee ballot fraud it is state so why why why did the state create an elaborate system to tackle a problem that didn't exist regarding in person vot person boding well it does exist even if it's rare in the supreme court is held as a matter of law that states can have photo id laws to address that this is a legitimate interest in deterring indiana had evidence of known cases of in person fraud we've been least got some but the supreme court noted that the states don't have to have that kind of evidence to to in order to have a photo id law in order for that to be a valid interest and they held as a matter of law that photo id laws in the in person voting system if there had been two instances in person voting fraud in the entire history of the state they have confidence more confidence in elections because they have more confidence that the people who are voting or in fact the people who are on the rolls and the people recounting one ballot and you would like judge that the evidence of voter fraud is far greater in the area of absentee voting applies to absentee voting this is an area where north carolina and texas both got in trouble they said you're the reason you passed the law we're not sure that we believe it's because of fraud because you didn't even address absentee voting and that's where the fraud is what we did apply  voting absentee voters are required to include a copy of their photo id but i was discussing the context in which we passed what those good points that were of those points that you just made shouldn't they have been heard by the judge through testimony at we think is settled and we also it's not disputed that these instant instances of absentee voter fraud have existed in alabama including after we passed our two thousand and three law context in which we passed our law there were lots of other states passing photo id laws you had the supreme court addressing indiana's law and you had this court addressing georgia's law and blessing both sending the message to states that these or ok these are something states can do you had the bipartisan baker card commission encouraging states to pass photo id laws for all of these reasons you had citizen groups who were fed up with the fraud in the air their areas of the state and they were lobbying for the law coming together by racially lobbying for the law trying to educate the public on the dangers of voter fraud and why we need photo id laws and it was them and not scott peterson who was invited to the signing of the law that's why the legislature passed this law now consider with allege that you did we didn't just stop with driver's licenses the legislature said all of these different categories of i d s you can use including some that are disproportionately minority voters how easy we made it to get an i and when you consider that and you weigh it against the the various unrelated items that plane is point to we believe we're entitled to summary judgment on the intent claim as well as the if there are no for the questions there are no thank you thank you yours mr ross yes your honor i think it's important to note that no one can request a home visit if they don't know about it and plaintiff presented evidence that the secretary of state had cut advertising his advertising budget by a third they presented evidence that both of you present any evidence that there was someone who would have requested had they known about it but they did not know about your honor one of the plaintiffs was only heard about the home visit all the plaintiffs only heard about the home visits after litigation there was testimony from members of the legislature from other from g b m and the p that they weren't aware of these home visit litigation you're not tom after the case was over but americans public housing id is not acceptable for voting secretary denied that there's evidence that this could stop any attempted to go to a mobile unit and get id she was unable to there is evidence of some of the provisional ballot voters who tended to vote provisional ballot and were able to so all those issues were in dispute it's in dispute whether or not and we think that the issue of whether or not to have an estimate an attempt to develop a provisional ballot you mean they weren't allowed to cast a provisional ballot or they didn't cure it within three days and there is some evidence in the record that poll workers were not telling voters about provisional ballots there's also evidence in the record of voters who went attempted to vote for original ballots volunteer from g b m had to help voters tell them about that they could vote telling voters about the provisional ballot process there's also evidence to the record that some voters did vote provisional ballot process but for the issue that judge branch raised that because of the short time period they weren't able to get acceptable id and again we think that's evidence that and i watched the election results that night or heard about the next morning and it wasn't within one why would i want to go down and cure my provisional ballot well i think your honor if it's important to remember this case is up on summary judgment they they make the argument that people didn't know about it we presented evidence or excuse me that maybe people just didn't decide to vote there is no evidence on the record on that the cure the cure problem to the extent there is to the extent that there ought to be more days for cure and obviously the reason they're not nowhere is they don't want to hold up the tabulation but does the shortness of the time for cure really i can't imagine somebody wanting to go who didn't have a photo id wanting to go down and cure a ballot and a rush that wasn't decided by well your honor i think people have the right to vote and they want they made went through the trouble to attempt to vote and there's evidence in the record that there were people who who didn't have photo id and had difficulty voting there is no evidence in the record that any bill would have cured had there been a longer period for cure who would have cured if they didn't face the burdens of african americans and latino voters being further away from ideas showing office not having access to vehicles being poor all those issues that that black and latino voters face these are the voters who testified and again because it's on summary judgment we think that infer and so what happened with these provisional ballots goes to the plaintiffs i think it's also important to note that there was such a school evidence about black voter turnout in alabama dr highness report at two seventy two dash eight i believe presented evidence that african american voter turnout was down in over that yes your honor he control for all those have to see a big control wouldn't go well no your honor because he also compared it to other southern states that are similar including south carolina which is very similar except for south carolina has a word lenient photo i d law and so and i think one other and just on the bridge both the provisional ballot issue and the voter the statistical evidence from dr hein all about turnout that's evidence that the district court didn't even consider it's evidence that we think you know if he said there was no evidence that voters were prevented point which is that there was a question from judge gayle's about whether or not you know this case was appropriate for summary judgment as this court said in fact county certainly judgment is inappropriate for section two cases because the fact intensive and no other section to photo id case was dismissed and some are what i can say in any category of cases that summary judgment is never appropriate in this category cases you know we can't override rule fifty six and and you never know what's going to be a material genuine issue of material fact and to click yes your honor and i think what we're saying here is that the secretary of state presented evidence that there are these mobile units at home visits we present substantial evidence that those visits were ineffective that they were not widely advertise and that they and we think that that creates a factual dispute and thank you your honor thank you appreciate that case with well argued on both we'll take a break here and let everybody get ready for