[00:00:13] Speaker 01: Good morning and may it please the court, Katie Lane on behalf of Appellants. [00:00:17] Speaker 01: I'm going to aim to reserve four minutes for rebuttal. [00:00:19] Speaker 01: That might be aspirational. [00:00:22] Speaker 01: The fundamental error in the decision below is that the district court decided that there's a first amendment problem with a law prohibiting individuals from maintaining multiple voter registrations. [00:00:36] Speaker 01: But Montana's law is constitutional in all of its applications. [00:00:40] Speaker 01: because there is no right to maintain multiple voter registrations, just like there is no right to vote multiple times in the same election. [00:00:48] Speaker 01: And if there is any doubt as to the law's constitutionality before, NetChoice confirms that the plaintiffs here have not met their burden for a facial over-breadth challenge. [00:00:57] Speaker 03: So we have this case, obviously, it's abusive discretion, what we're looking at on some level, correct? [00:01:06] Speaker 03: But I have a question of your saying [00:01:10] Speaker 03: You're now arguing for the first time on appeal that there's not a First Amendment right to register as far as that goes. [00:01:27] Speaker 03: What was the posture in the district court? [00:01:29] Speaker 03: My understanding is that everyone basically assumed there was a First Amendment right at stake. [00:01:38] Speaker 01: Below, Your Honor, the parties did at argument dispute the applicability. [00:01:42] Speaker 01: The only case cited below in support of the First Amendment finding was the Preminger versus Peek case. [00:01:49] Speaker 01: The parties did dispute the extent of that applicability here. [00:01:54] Speaker 01: But then the district court concluded categorically that voter registration equals First Amendment protected activity. [00:02:03] Speaker 01: And so now on appeal, this court, that is a legal question for this court to review. [00:02:09] Speaker 01: And our position is that Preminger versus Peek not only does not stand for that categorical rule, but particularly in light of net choice, [00:02:17] Speaker 03: So where do you raise it in your briefs? [00:02:20] Speaker 03: Is it in your reply brief? [00:02:23] Speaker 01: On appeal, Your Honor, we raise it in our opening and on our reply brief. [00:02:28] Speaker 01: Our opening brief at page 22, for example, we say that Preminger versus Peek does not establish a categorical rule. [00:02:36] Speaker 01: And then again, on our reply brief on pages 9 to 10, we explain how that's not protected speech. [00:02:41] Speaker 02: Counsel, I'm a little confused by your initial answer to Judge Callahan because I thought that in the district court, you did not specifically argue that registering to vote isn't a First Amendment protected activity. [00:03:02] Speaker 02: Am I wrong about that? [00:03:03] Speaker 02: Or did you make that argument? [00:03:06] Speaker 01: Well, Your Honor, we argued below that the over-breath was not the appropriate standard. [00:03:15] Speaker 01: And particularly, we focused there on the hypotheticals that plaintiffs had put forth, focusing on whether... So this is not responsive to my question, which was a yes or no question. [00:03:26] Speaker 02: Did you argue in the district court that registering to vote is not an activity that is protected by the First Amendment? [00:03:35] Speaker 01: know your honor and i i and i don't think that's the question that is is relevant here because what we're saying here is that and this is again in light particularly in light of not choice the level of granularity with which this court must evaluate whether the conduct [00:03:52] Speaker 01: regulated by, I'm going to refer to it as subsection five, is we look at what is the conduct by what actors. [00:04:00] Speaker 01: And so the question of whether voter registration broadly is a First Amendment protected activity is not the relevant question here. [00:04:10] Speaker 01: The relevant question is whether maintaining multiple voter registration [00:04:16] Speaker 04: But why shouldn't we find that you waived the issue? [00:04:19] Speaker 04: You didn't raise it in your opposition to the injunction in the district court. [00:04:24] Speaker 04: We're not supposed to decide things for the first time on appeal that haven't been reviewed and considered in the first instance by the district court. [00:04:33] Speaker 04: And then constitutional avoidance, if we can resolve this case on other grounds, would dictate that we shouldn't reach it. [00:04:40] Speaker 01: Well, Your Honor, again, our position is that what is on appeal here is that on page, I think it's excerpts of the record, page 23, that's page 20 of the district court's decision, is where the district court concludes categorically that voter registration is speech. [00:04:56] Speaker 01: And so on appeal now, we are asserting that that is not, not only is that not correct as a matter of law, but also, again, in light of net choice, that the district court needs to evaluate [00:05:10] Speaker 01: the full scope of the conduct [00:05:23] Speaker 01: there was discussion about the applicability of Preminger versus Peek. [00:05:28] Speaker 01: I agree that we are making more of an argument about that on appeal, again, in light of both the district court held and, again, after net choice. [00:05:38] Speaker 02: But even if it's- Can I ask you a different question, though? [00:05:41] Speaker 02: And that is the statute chills registration, or let me just ask it differently. [00:05:52] Speaker 02: Did the district court abuse its discretion by determining that the law chills registration to vote, which in turn necessarily chills actual voting? [00:06:08] Speaker 02: What's wrong with that? [00:06:13] Speaker 01: Two responses, Your Honor. [00:06:14] Speaker 01: The first is that it's not supported by the record. [00:06:18] Speaker 01: The hypotheticals that plaintiffs put forth about the college students and the people who are, for example, dropping out of their probationary job, the probation period of their jobs, that that does not show that the law is constitutional in those circumstances. [00:06:35] Speaker 01: But more to the point, Your Honor, NetChoice explains very clearly that the district court, the lower courts, have to consider the full range of the applications. [00:06:46] Speaker 01: And so that's a legal question. [00:06:49] Speaker 02: Well, go ahead. [00:06:53] Speaker 02: Keep going. [00:06:54] Speaker 01: Your Honor, I was just going to say that the question of whether [00:06:57] Speaker 01: on the district court conducted a proper over-breadth analysis is a legal question that this court can review de novo. [00:07:04] Speaker 01: And again, our position is that there is not protected conduct here. [00:07:07] Speaker 01: Plaintiffs have not cited to any case, nor am I aware of any case that says that maintaining multiple voter registrations. [00:07:15] Speaker 02: But why is that the right lens? [00:07:18] Speaker 02: Registering to vote is the only way that you get to vote, obviously. [00:07:26] Speaker 02: And so the interest that individuals have in registering, it's not like registering your dog to get a dog tag, which doesn't implicate the First Amendment. [00:07:38] Speaker 02: Registering to vote, the purpose of it is so that you can vote, which is a First Amendment protected activity. [00:07:46] Speaker 02: And it seems to me that a law that puts people in prison, if they're unable to get their previous place to take them off the voter rolls, [00:07:57] Speaker 02: is is definitionally chilling of the right to vote. [00:08:03] Speaker 01: Two responses to that, Your Honor. [00:08:05] Speaker 01: First, there's no expressive activity in the act of registering to vote itself. [00:08:11] Speaker 01: It's providing you provide your name, your residence, that kind of information. [00:08:16] Speaker 01: I'd liken it to, for example, a parade. [00:08:20] Speaker 01: We know that parades have some component of speech, but a permit, filling out the application for a permit for a parade, [00:08:28] Speaker 01: would not be protected speech. [00:08:30] Speaker 02: What if a law said that you would be put in prison for 18 months if your parade permit was inaccurate or somehow conflicted with another parade? [00:08:42] Speaker 02: Would that be chilling of the right to have a parade or would that just be chilling about paperwork? [00:08:51] Speaker 01: So Your Honor, I think what I hear your question getting at is the felony provision, the penalty for compliance or noncompliance with the law. [00:09:01] Speaker 01: And that penalty provision doesn't answer the threshold question of what conduct the law actually regulates by what actors. [00:09:12] Speaker 01: It also doesn't answer the question of whether the application of the law in certain circumstances, certain factual scenarios, [00:09:20] Speaker 01: is actually constitutional or unconstitutional. [00:09:24] Speaker 03: Well, I guess what I'm struggling with at this point, since it wasn't argued before the district court about this being that registering doesn't have constitutional implications, [00:09:39] Speaker 03: I don't know how, okay, I've lived in the same place for a very long time, but I've lived in other places previously where I've always voted, I think I've voted in everything that, I might have missed a city election for dog catcher or something at some point, but I'm a voter, okay, and I always register, but I never unregistered [00:10:04] Speaker 03: in those other places, so arguably, my understanding is what we're trying to hit here is you can't vote twice, okay, and I've never voted twice, and if people are registered in other spots, I guess they could get an absentee from that spot and get it sent, and then they could vote again in person, or there would be a number of ways that they could vote twice. [00:10:32] Speaker 03: I think most of us were registered somewhere else at some other point in our life, and [00:10:42] Speaker 03: I think that's the over-breath argument that we have here. [00:10:47] Speaker 03: And then to criminalize, when I registered in the other place, I wasn't doing anything wrong. [00:10:53] Speaker 03: What would be wrong is if I voted in both places. [00:10:56] Speaker 03: I don't even know if it's illegal to be registered in more than one spot. [00:11:00] Speaker 03: What I do know is it appears to be wrong if you vote twice. [00:11:05] Speaker 03: So what's our best argument that it's illegal to be registered in more than one spot, or is it illegal to vote twice? [00:11:13] Speaker 01: Well, Your Honor, the text of the statute that's at issue here makes it illegal to be registered twice, but only when you've met the mens rea purposely. [00:11:22] Speaker 01: And so for example, Your Honor, describing. [00:11:24] Speaker 03: But is that really even illegal? [00:11:27] Speaker 03: I mean, isn't what's illegal that you vote twice? [00:11:30] Speaker 01: Well, that is subsection four to make it a felony to vote twice, but subsection five, as the bill sponsor explained, is another tool. [00:11:39] Speaker 03: But how do you unregister? [00:11:41] Speaker 03: How do you unregister? [00:11:43] Speaker 03: I have no idea how that would happen. [00:11:45] Speaker 03: I could be registered back when I was 18 years old somewhere else, and then I lived somewhere, you know. [00:11:56] Speaker 01: So again, Your Honor, I think that goes to the purposefully. [00:11:59] Speaker 01: But as far as the mechanics of unregistering, canceling your prior voter registration, the Secretary of State's office has a process in place. [00:12:07] Speaker 01: You fill out a form and send it. [00:12:10] Speaker 02: Don't everywhere. [00:12:11] Speaker 02: My daughter has moved to another state, and she can't seem to get unregistered in Oregon. [00:12:17] Speaker 02: And she finally gave up trying. [00:12:19] Speaker 02: So she's been voting in a different state now for a number of years. [00:12:26] Speaker 02: her inability to get unregistered somewhere else, and she would be purposely then registering to vote where she lives. [00:12:35] Speaker 02: Would that be a violation if she were in Montana, which she is not? [00:12:40] Speaker 01: Your Honor, I would say that that would not, again, the mens rea purposefully, I think it would be questionable about whether she's met that mens rea, but I think the key question here- But isn't the problem- That takes us straight to the vagueness question. [00:12:57] Speaker 02: What purposefully means, I am intending, I think, to register now, even though I used to be registered in another state or some other country or who knows where. [00:13:10] Speaker 02: So how do you know if you violated the law? [00:13:16] Speaker 04: The amicus actually disagrees with you. [00:13:18] Speaker 04: I know you say mens rea purposefully, you're not required to try to cancel your prior registrations, but the amicus brief says, yes, you are. [00:13:27] Speaker 04: So how is that not vague that a party that is actually submitting a brief in support of your position comes to a completely contrary interpretation of the statute? [00:13:37] Speaker 03: I mean, the police have a saying, you can beat the rap, but not the ride. [00:13:42] Speaker 03: And that seems like what you're saying, that, OK, Judge Graber's daughter would not be purposely doing that because she tried. [00:13:50] Speaker 03: But that doesn't mean she couldn't get arrested, because apparently she is registered in two places. [00:13:55] Speaker 01: Well, again, Your Honor, I mean, this goes, I think, more broadly. [00:13:58] Speaker 03: Just to go to court to prove that it wasn't purposeful, you know, that's not exactly, doesn't make you feel better. [00:14:06] Speaker 01: I hear your Honor's concerns, but I'd respond by saying that Montana law clearly defines purposefully, and it uses that mens rea requirement purposefully, knowingly, negligently in all of its, and throughout its criminal code. [00:14:20] Speaker 01: And so to the extent that we're, you know, even if we were to be talking about these hypothetical scenarios, I mean, we still need to establish, and plaintiffs have not done so, showing that the application is [00:14:35] Speaker 01: of that law is unconstitutional as applied. [00:14:38] Speaker 01: And even if it is unconstitutional in the circumstance for the daughter in Oregon or who lives elsewhere, again, net choice requires us to look at the full range of applications of the law. [00:14:52] Speaker 01: And we don't look at them. [00:14:53] Speaker 03: So you're saying the reason for this is we don't want people double voting. [00:14:57] Speaker 03: That's why you're doing this, right, is to prevent double voting? [00:15:01] Speaker 01: Yeah, it's a measure to even eliminate the risk, to help eliminate the risk of double voting. [00:15:06] Speaker 03: Which I obviously agree with. [00:15:09] Speaker 03: But that being said, if we look at the record here, maybe you can ... It seemed like the record, the district court looked at duplicate voting and what, there were 14 cases that you were able to identify? [00:15:26] Speaker 03: So and then what the other side, because you didn't make the argument below that it was not constitutional on the right to register, the district court analyzed it and said you're keeping people from voting on the one hand because you don't want double voting and you only can come up with 14 cases of double voting. [00:15:49] Speaker 03: So it says, you know, you're using, you know, [00:15:54] Speaker 03: you know, a cleaver to that when you could just use a butter knife. [00:16:02] Speaker 01: Your Honor, in that analysis, it flips the burden to the state to provide an interest to show that the law is narrowly tailored. [00:16:12] Speaker 01: But here, we're before the court on a facial overgrowth challenge. [00:16:15] Speaker 01: And at every stage, the plaintiffs bear the burden of first showing that it's protected conduct. [00:16:20] Speaker 01: And even if this court does not look at the question of whether it's protected conduct, [00:16:25] Speaker 01: We move to the next step, which is after NetChoice, all the overbreath cases before the Supreme Court, looking at the full range of the applications and looking at whether applied to each of those applications of the law, it's constitutional and unconstitutional. [00:16:43] Speaker 01: And then we have to conclude that it's substantial both in the absolute sense and in the relative sense. [00:16:50] Speaker 01: And even if this court were to conclude that voter registration is speech, plaintiffs have not met their burden on the second and third issue. [00:16:58] Speaker 01: And after net choice, the proper course is to still vacate the injunction. [00:17:03] Speaker 01: And I think that choice is actually helpful for your honor's question. [00:17:06] Speaker 03: I find it hard to believe. [00:17:07] Speaker 03: I just always like to think what the Supreme Court could say. [00:17:10] Speaker 03: And I just taught something on freedom of speech. [00:17:13] Speaker 03: And I've always found it was a shock to me when I found out that money is speech, OK? [00:17:19] Speaker 03: I find it hard to believe that a Supreme Court is going to say that money is speech and not say that voting is speech. [00:17:27] Speaker 03: That's a stretch for me. [00:17:29] Speaker 03: I'm just thinking ahead here. [00:17:32] Speaker 01: Your honor, I would, I would say that I think net choice is helpful for that for that question because again we're not saying so net choice content moderation. [00:17:40] Speaker 01: We're not looking at the 30,000 foot view of its social media speech is the internet speech. [00:17:46] Speaker 01: We're looking at the specific conduct regulated by Florida's law and Texas's law. [00:17:50] Speaker 01: And here, even if this court thinks that generally voting is protected speech, we have to look at the granule level of what subsection five itself regulates, again, using not choice's language, [00:18:05] Speaker 01: What conduct by what actors does the law prohibit or regulate? [00:18:09] Speaker 01: And again, here at that granular level, we're looking at maintaining multiple voter registrations. [00:18:15] Speaker 01: So even if this court concludes voter registration is speech, even if this court were to say maintaining a voter registration, a single one is speech, there's no cases that would suggest that maintaining multiple voter registrations is speech. [00:18:28] Speaker 01: And even if this court were to disagree on that or not want to reach that question, [00:18:32] Speaker 01: We have to then get to that second piece of net choice, which says you have to look at the full range of applications. [00:18:38] Speaker 01: And in net choice, the parties came to the court and they said, let's talk about Facebook, let's talk about YouTube, I think Instagram. [00:18:45] Speaker 04: But you would agree we would look at that determination of the number of unconstitutional applications for clear error. [00:18:52] Speaker 04: And I'm looking at the record that [00:18:54] Speaker 04: Judge Callahan just cited you have 14 cases of suspected not even verified double voting and then you have 5200 members of young highly transient voters. [00:19:05] Speaker 04: It looks like it was a fairly extensive record before the district court. [00:19:08] Speaker 04: So how can we find clear error. [00:19:11] Speaker 01: Your honor, there's no there's nothing in the record that explains how the application of [00:19:16] Speaker 01: of the subsection five to those 5,000 transient voters is actually unconstitutional, that any of them have been denied the right to vote, have been unable to register to vote, have been unable to cast a ballot in an election. [00:19:31] Speaker 01: And I point the court to the fact that this law was in effect for nearly a year before it was enjoined. [00:19:37] Speaker 01: And there were no instances that plaintiffs could even point to where it was actually applied. [00:19:43] Speaker 04: So you're saying just chilling voter registration is not enough. [00:19:48] Speaker 04: You're saying someone actually has to be denied the right to vote. [00:19:50] Speaker 04: That's what it sounded like. [00:19:52] Speaker 04: Your standards seem to be much higher than what we would actually need to find here. [00:19:56] Speaker 01: Your Honor, and I thank you. [00:19:58] Speaker 01: I want to be clear. [00:19:59] Speaker 01: They don't need to actually. [00:20:01] Speaker 01: I agree that in this over-breath universe that we're operating in, we are dealing in hypotheticals. [00:20:06] Speaker 01: But there has to, again, we have to look at all the Montana voters that this law applies to. [00:20:12] Speaker 01: It is being constitutionally applied to all of them, even if we take out that 5,000 transient voters. [00:20:21] Speaker 01: The numerator, if you will, is not the 14 actual convictions. [00:20:25] Speaker 01: It's all Montana voters, again, having the law applied to them. [00:20:30] Speaker 01: And in most scenarios, even if we think that the college student, the job probation person, [00:20:35] Speaker 01: Those are unconstitutional applications, which we do not agree. [00:20:39] Speaker 01: Again, the comparator is all Montana voters. [00:20:43] Speaker 01: And again, and point the court to net choice, we have to look at the full range. [00:20:47] Speaker 01: We don't just pick and choose hypotheticals. [00:20:49] Speaker 01: We have to look at, in net choice, the Etsis, the Venmos, the Ubers of the world, and compare the full range of applications. [00:20:58] Speaker 01: so that plaintiffs bear the burden of showing that the over-breath is substantial both in the absolute sense and relative to that plainly legitimate sweep. [00:21:06] Speaker 01: I think that Judge Cohen was in it. [00:21:07] Speaker 03: Okay, we've taken you over your time. [00:21:09] Speaker 03: Do either of my colleagues have additional questions? [00:21:12] Speaker 01: No, thank you. [00:21:12] Speaker 03: All right, I'll give you two minutes for a rebuttal. [00:21:25] Speaker 03: Good morning. [00:21:26] Speaker 03: Good morning. [00:21:27] Speaker 00: May it please the court. [00:21:28] Speaker 00: Yeah, it's still good morning. [00:21:30] Speaker 00: Aria Branch on behalf of the appellees. [00:21:33] Speaker 00: The district court did not abuse its discretion when it enjoined HB 892. [00:21:38] Speaker 00: The provisions that are challenged in this lawsuit force voters to make a choice, either risk committing a felony or don't exercise your fundamental right to vote. [00:21:49] Speaker 00: The disclosure requirement criminalizes the failure to complete a section of the voter registration form. [00:21:56] Speaker 03: So is there anything out there that you can cite to me that suggests that a person has a constitutional right to register to vote in more than one place? [00:22:06] Speaker 00: There are several cases. [00:22:08] Speaker 03: That's a very narrow question. [00:22:10] Speaker 00: Sure. [00:22:11] Speaker 00: And I don't think that actually the question of whether or not someone has a constitutional right to register in more than one place is the correct question here. [00:22:19] Speaker 03: Well, I understand you don't think it's the correct question. [00:22:22] Speaker 03: And I get that. [00:22:23] Speaker 03: But I want to know, is there any authority holding or suggesting that a person has a constitutional right to register to vote in more than one place? [00:22:32] Speaker 00: Not that I'm aware of, but again, this law criminalizes the remaining on the roles of another state's voter rolls. [00:22:40] Speaker 03: So there might be some law that could withstand constitutional scrutiny. [00:22:46] Speaker 03: where you can't register in more than one spot, maybe. [00:22:50] Speaker 00: There might be, and I don't think the district court said that, you know, you can't regulate, or states can't regulate being registered in more than one state, sort of writ large. [00:22:58] Speaker 00: Do we agree you can't vote twice? [00:23:01] Speaker 00: We agree you cannot vote twice. [00:23:03] Speaker 00: We did not challenge that provision of HB 892. [00:23:06] Speaker 00: It's always been a crime to vote twice in Montana. [00:23:09] Speaker 00: It was a crime before this law was passed. [00:23:11] Speaker 00: It's a crime after this law was passed that's not at issue at all in this lawsuit. [00:23:16] Speaker 00: But this law actually criminalizes simply remaining on the voter rolls of another state. [00:23:22] Speaker 00: It's essentially criminalizing your status of being registered in another state if you want to register and exercise the right to vote in Montana. [00:23:30] Speaker 00: And so below, there wasn't a dispute about whether or not voter registration is protected by the First Amendment. [00:23:35] Speaker 00: The Preminger case talks about that, but the Supreme Court has also talked about it in the Anderson case, where it says that voter registration is protected speech. [00:23:46] Speaker 03: So how was this case litigated below? [00:23:49] Speaker 03: We asked questions in front of the district court about whether [00:23:59] Speaker 03: registering to vote was constitutionally, was it speech? [00:24:05] Speaker 03: How was it litigated below and how is it presented to us here? [00:24:09] Speaker 00: I think it was basically assumed that registering to vote constitutes expressive conduct that is protected by the First Amendment, and I would point this court [00:24:20] Speaker 00: to page three of Appellant's opening brief in this case on appeal, where it says that no party disputes that the Montana legislature ultimately sought to prevent double voting, and they did so by prohibiting the means for one of the many ways people can vote. [00:24:38] Speaker 00: And I think that's the that's the sort of crux of this case is that the Montana legislature prohibited the means for how people vote and criminalizing and creating felony penalties for registering to vote in Montana if you simply remain on the voter rolls. [00:24:55] Speaker 00: which is something a voter has no control over, as Judge Graber's questioning pointed out earlier, including in states that have automatic voter registration like Oregon, where you're automatically registered. [00:25:07] Speaker 00: And so voters may not even know that they are registered to vote in those states, which I think really speaks to- Well, your friend on the other side said don't worry because you don't have the mens re. [00:25:18] Speaker 03: And that's where I said, you can beat the rap, but not the ride. [00:25:21] Speaker 00: I think that's exactly right. [00:25:22] Speaker 00: I mean, the injury here is chilling speech. [00:25:25] Speaker 00: It's chilling voter registration. [00:25:27] Speaker 04: But why couldn't a voter send a letter to the Secretary of State and all the previous jurisdictions where they've been registered to vote and at least make the attempt to unregister in other jurisdictions? [00:25:37] Speaker 04: You said there's nothing a voter could do, but that seems wrong. [00:25:40] Speaker 00: I think it's out of their control whether or not they actually remain on the voter rolls. [00:25:45] Speaker 00: And the language of this statute is really important here. [00:25:49] Speaker 00: It is vague, but it criminalizes purposefully remaining registered to vote. [00:25:54] Speaker 04: How would you satisfy that mens rea requirement if you made an attempt to unregister yourself in a previous jurisdiction? [00:26:03] Speaker 00: Well, I think it begs the question if you attempted to register or to D register in another state, but your attempt is not successful. [00:26:10] Speaker 00: At what point are you again purposely remaining on the roles. [00:26:15] Speaker 00: I think when you're talking about the right to vote and First Amendment and potential felony penalties states have [00:26:22] Speaker 00: the obligation to be clear when they pass these types of restrictions. [00:26:27] Speaker 00: And that is why this law is vague. [00:26:29] Speaker 04: That's why your brief focuses a lot on the vagueness issue. [00:26:33] Speaker 04: But the district court didn't reach it because it ruled on over breath and also said more facts were needed to address vagueness. [00:26:40] Speaker 04: So why should we overlook the fact that district court didn't address that issue in the first instance? [00:26:45] Speaker 00: I think that the vagueness claim provides a very strong basis for affirmance, as does over-breath, but we did brief vagueness because it is an important claim. [00:26:55] Speaker 00: Respectfully, I don't think additional facts are needed to resolve the vagueness of the statute. [00:27:02] Speaker 00: It's a relatively short statute. [00:27:03] Speaker 00: We brought a facial claim. [00:27:05] Speaker 00: It is a pure question of law. [00:27:07] Speaker 00: The other side points out that we serve discovery in this case, but that is not determinative here. [00:27:13] Speaker 00: We actually have an additional claim in this case that we did not move for a preliminary injunction on, a burden on the right to vote claim. [00:27:21] Speaker 00: And so the discovery we serve is primarily focused on that claim, which is not at issue here. [00:27:26] Speaker 00: This is a pure question of law. [00:27:28] Speaker 00: The statute is not clear in terms of what conduct is required to violate the law, what conduct is actually prohibited. [00:27:35] Speaker 00: It's arguably retroactive because it applies to people who [00:27:40] Speaker 00: you know, on the day the law was passed may have had a registration in a prior state, but it criminalizes that activity, you know, as of the date of enactment. [00:27:49] Speaker 00: That person hasn't done anything wrong, hasn't actually taken any action, but they are automatically at risk of becoming a felon. [00:27:58] Speaker 00: And so the district court [00:28:00] Speaker 00: spent a lot of time actually analyzing our vagueness claim and pointed out many of the different flaws in the law. [00:28:08] Speaker 00: And so I think it actually provides an additional basis for affirmance by this court. [00:28:13] Speaker 04: I had a question for you about Preminger. [00:28:15] Speaker 04: That dealt with registering others to vote. [00:28:19] Speaker 04: What support do you have for the proposition that registering yourself to vote is protected First Amendment activity? [00:28:28] Speaker 00: Well, I would point the court to the Supreme Court's decision in Anderson versus Sellebriese, where the court said, quote, laws that govern the registration and qualification of voters implicate First Amendment rights. [00:28:42] Speaker 00: And I would say that even in cases where the court or courts have rejected challenges to other aspects of the voter registration process, as in Preminger, these courts have recognized that a voter's choice to register to vote [00:28:58] Speaker 00: is protected. [00:29:00] Speaker 00: Voting for America Incorporated versus Steen is a Fifth Circuit case that says assuming a voter registration application is speech [00:29:08] Speaker 00: it is the voter speech indicating his desire to be registered. [00:29:13] Speaker 00: I think a lot of states don't criminalize this kind of activity because it is so clearly protected by the First Amendment. [00:29:21] Speaker 00: And so there are cases, including ones that are cited in our brief, that talk about the fact that you can't sort of slice and dice the voter registration process. [00:29:31] Speaker 00: But the choice to register to vote, the idea of filling out an application that [00:29:37] Speaker 00: says to others that I want to have a say in the political affairs of this country and my community is protected speech. [00:29:45] Speaker 00: And as Judge Callahan pointed out earlier, the First Amendment is broad. [00:29:50] Speaker 00: Almost all speech is protected by the First Amendment. [00:29:53] Speaker 00: So this idea that voter registration being protected by the First Amendment somehow expands the doctrine is just not supported by the law. [00:30:02] Speaker 00: And I think, frankly, erroneous. [00:30:07] Speaker 03: I would also- So if you go to the evidence here, if we, let's say, just move on from this and we look at what the district court had in front of it, how would you view that? [00:30:21] Speaker 03: We talked about 14 people voted twice and then there's other declarations about other things. [00:30:28] Speaker 03: What's the status of the evidence in our standard of review? [00:30:33] Speaker 00: Sure, well the Supreme Court has said, or I think it might be in a Ninth Circuit case, it might be in the Redondo Beach case, but that there's not a requirement to show admissible evidence of over-breath. [00:30:46] Speaker 00: You have to show arguable instances of over-breath, and courts necessarily have to deal in hypotheticals when you're dealing with a vagueness over-breath challenge. [00:30:54] Speaker 00: So in the record, there's evidence of [00:30:57] Speaker 00: 14 suspected cases of double voting. [00:31:00] Speaker 00: This is over a course of, I don't know how many election cycles, but in elections in which millions of Montana voters have cast ballots. [00:31:10] Speaker 03: And we have also put in the record at ER- Well, I told there's more cows there, so did the cows get to vote than people? [00:31:17] Speaker 00: I haven't had the chance to go to Montana because we had a virtual hearing below, so I'm not sure. [00:31:24] Speaker 00: But in the record also at ER 2011-22, we have a document from the Pew Center that says that in 2012, 2.75 million Americans were registered to vote in more than one state. [00:31:39] Speaker 00: We did some math and we think that would be in the tens of thousands of Montana voters based on the population today. [00:31:47] Speaker 00: So if you weigh the unconstitutional applications of this law, which criminalizes simply remaining on the voter rolls and failure to fill in a form of a voter registration application, [00:32:04] Speaker 00: that I think pales in comparison to the suspected double voting. [00:32:08] Speaker 00: The legislature was clear that it was trying to prohibit double voting, and it has done that, but this is simply just not a constitutional way to legislate around this. [00:32:20] Speaker 00: I think voters in Montana, frankly, our plaintiffs who are engaged in voter registration on the ground every day deserve more, especially when there are felony criminal penalties at issue. [00:32:32] Speaker 00: And so I would ask that the court affirm the district court's injunction. [00:32:37] Speaker 00: And if there are no further questions, I will sit down, I think. [00:32:40] Speaker 03: No further questions. [00:32:41] Speaker 03: You don't appear to be. [00:32:42] Speaker 03: Thank you. [00:32:43] Speaker 03: Thank you. [00:32:43] Speaker 03: Thank you for your argument. [00:32:44] Speaker 04: Thank you. [00:32:58] Speaker 01: Thank you, Your Honor. [00:32:59] Speaker 01: It's just a couple of quick points. [00:33:01] Speaker 01: Your Honor's asked about vagueness. [00:33:02] Speaker 01: That would be reviewed. [00:33:04] Speaker 01: The district court's decision that there were still factual issues that would be relevant to that analysis is reviewed for abuse of discretion. [00:33:11] Speaker 01: And again, the fact that the parties are engaging in discovery, they should have the opportunity to do so. [00:33:16] Speaker 01: And the district court can evaluate the vagueness question. [00:33:20] Speaker 01: So we think it's inappropriate for this court to reach the vagueness [00:33:23] Speaker 01: question altogether. [00:33:24] Speaker 01: I'll also just go back to, I think the plaintiffs made a couple points. [00:33:31] Speaker 01: They said that you can't slice and dice the registration process, but that's exactly what that choice requires, the court to look at the granularity of which the conduct regulated by the statute, what it actually is regulating. [00:33:45] Speaker 01: And, you know, I'd point the court to this court's decision in Knox versus Bernovich, which was a, it was a ballot case. [00:33:52] Speaker 01: But there the court said, assume that the ballot, the vote on the ballot is speech. [00:33:57] Speaker 01: The collection of the ballots, the distribution of ballots, that is administrative, that is not protected speech. [00:34:04] Speaker 01: And so there this court did slice and dice the process to identify what is protected speech, what is not. [00:34:11] Speaker 01: The court can do the same here. [00:34:13] Speaker 03: I'm assuming there's some urgency since we've expedited this matter and there's upcoming elections. [00:34:20] Speaker 03: I'm assuming we need to rule relatively quickly. [00:34:24] Speaker 03: Would that be correct? [00:34:25] Speaker 03: Yes, Your Honor. [00:34:26] Speaker 03: It would be our request. [00:34:27] Speaker 03: I mean, that's what everyone ... Our request would be that. [00:34:32] Speaker 01: Okay. [00:34:33] Speaker 01: Even if this court doesn't reach the First Amendment question, [00:34:37] Speaker 01: Again, there still needs to be a full analysis below of all the full range of applications of this law. [00:34:44] Speaker 01: And again, we're looking at how this law applies to the rancher with the cows, the person in downtown Bozeman or Missoula who's not a student at Montana State. [00:34:54] Speaker 01: Also, we're looking at how it applies to all college students, all out-of-state college students. [00:34:59] Speaker 01: And plaintiffs and their hypotheticals with the college student, again, the person in the probation period of their job, [00:35:07] Speaker 01: don't explain how the law actually, as applied to those individuals, would be unconstitutional. [00:35:15] Speaker 01: And so again, that choice says that this court should vacate, that the district court should have the opportunity to engage in that full analysis. [00:35:23] Speaker 03: I've given you extra time. [00:35:26] Speaker 01: Thank you. [00:35:27] Speaker 03: And you're still going a little extra. [00:35:30] Speaker 03: So unless my colleagues have questions, I'm going to call time on you. [00:35:35] Speaker 03: Great. [00:35:35] Speaker 03: Thank you, Your Honors. [00:35:37] Speaker 03: Thank you. [00:35:37] Speaker 03: Thank you. [00:35:38] Speaker 03: All right. [00:35:38] Speaker 03: This court then will be in recess till tomorrow at 9 AM. [00:35:42] Speaker 03: Thank you both for your helpful arguments in this matter. [00:35:45] Speaker 00: All rise.