[00:00:32] Speaker 04: Our final case for argument this morning is Mussi against Fontes. [00:00:37] Speaker 04: Mr. Pinkert. [00:00:38] Speaker 02: Good morning. [00:00:39] Speaker 02: Mark Pinkert for the appellants. [00:00:40] Speaker 02: I'd like to reserve four minutes for rebuttal. [00:00:44] Speaker 02: The plaintiffs in this case alleged three concrete and cognizable injuries from the alleged violation of the NVRA and the consequential, the consequence of hundreds of thousands of ineligible voters on the rolls. [00:00:58] Speaker 02: The first injury that they face is a substantial risk that their individual votes will be diluted. [00:01:05] Speaker 02: That is, their own votes will count less or will be less effective because of the increased risk of improperly cast ballots. [00:01:12] Speaker 02: That is a concrete injury and is also one that is a predictable consequence of the NVRA violation and is well supported with factual allegations, especially at the pleading stage. [00:01:23] Speaker 02: Second, the plaintiffs are experiencing a present loss of confidence in the integrity of elections. [00:01:28] Speaker 02: Just like an environmental plaintiff who loses aesthetic enjoyment when a government policy will damage a site that they have visited and plan to visit again, the plaintiffs face a similar psychological harm when they visit the voting booth as they have done in the past and plan to do again. [00:01:43] Speaker 02: They're politically active, civically engaged, and so their loss in confidence in the election is no less constitutionally cognizable than the environmental plaintiff. [00:01:54] Speaker 02: Third, the plaintiffs have devoted resources toward poll monitoring, get out the vote, and voter education activities. [00:02:01] Speaker 02: all to mitigate the effects of the NVRA violation. [00:02:04] Speaker 02: And so like an organization that is already engaged in a particular mission, they too are deeply engaged in election law and policy. [00:02:11] Speaker 02: And so this is core to what they do. [00:02:13] Speaker 02: It's part of their mission personally. [00:02:15] Speaker 02: And the NVRA, the violation has caused them to divert more resources toward that cause. [00:02:21] Speaker 02: There's no basis to distinguish between an organization and an individual. [00:02:25] Speaker 02: If that type of standing suffices for an organization, it does as well for an individual. [00:02:29] Speaker 04: Maybe starting with the vote dilution theory, can you address our decision in election integrity project? [00:02:37] Speaker 04: Because as I read that, and particularly footnote 13, and it seems to say that this kind of vote dilution claim is a generalized grievance that isn't enough, isn't sufficiently concrete or particular for standing. [00:02:52] Speaker 04: So how do you deal with that? [00:02:53] Speaker 02: Sure. [00:02:53] Speaker 02: Well, in the first appeal of the election integrity project case, [00:02:57] Speaker 02: The Ninth Circuit actually held that the organization there had standing based on the same theory of diversion of resources for poll monitoring and things like that. [00:03:07] Speaker 02: On the second appeal, the decision was on the merits. [00:03:10] Speaker 02: The dicta in the footnote does seem to suggest that, but I would say this is not a generalized grievance because the plaintiffs are concerned with the power of their own vote, that it's going to count less in the election because of improperly cast ballots. [00:03:26] Speaker 02: And that is concrete and personalized to them. [00:03:28] Speaker 02: And the Supreme Court has said over and over again, from Gill versus Whitford, Gray versus Sanders, Anderson versus United States, and of course Baker versus Carr, your interest in the power of your vote is a concrete and personalized... And could they show that if they suspected that there was one person on the rolls that didn't belong on the rolls? [00:03:49] Speaker 02: I think so, Your Honor. [00:03:50] Speaker 02: The Supreme Court has said that even a trifle or a nominal damage suffices. [00:03:57] Speaker 03: Would they have any obligation to show that the person that they suspected was either no longer living or no longer living in Arizona didn't live in their precinct? [00:04:09] Speaker 03: Or it's just a sufficient that they might vote in a senatorial, US senatorial race or a gubernatorial race? [00:04:15] Speaker 02: So I do want to make sure that we, [00:04:18] Speaker 02: Injury and fact analysis and the merits question are analytically distinct. [00:04:22] Speaker 02: If there's not sufficient evidence that there's improper voter roll maintenance, they don't have a cause of action. [00:04:28] Speaker 02: If they can show that the violation is causing ineligible voters to remain on the rolls, that increased risk dilutes the power of their vote. [00:04:37] Speaker 01: And I would- Well, the risk doesn't dilute the power of the vote. [00:04:41] Speaker 01: The possibility, if demonstrated as having converted into reality, that [00:04:47] Speaker 01: ineligible people voted would dilute the vote, but the fear that somebody who might not be eligible votes, that doesn't dilute anything. [00:04:57] Speaker 01: Because unless the other person votes, there's no dilution. [00:05:01] Speaker 01: Well, that matters here, because what evidence of impending imminent harm is there, since there seems to be a complete void with regard to [00:05:17] Speaker 01: whether ineligible people have in fact voted or how great the risk is. [00:05:23] Speaker 02: So I think there's lots of evidence. [00:05:25] Speaker 02: First, I would just say that the Supreme Court in the Ninth Circuit doctrine says that a future injury based on contingent future events is still cognizable, provided you give evidence. [00:05:35] Speaker 01: That would be more than speculation. [00:05:36] Speaker 01: More than speculation. [00:05:37] Speaker 01: You get a series of possibilities. [00:05:40] Speaker 01: And where is the evidence of ineligible people voting? [00:05:43] Speaker 01: I mean, Arizona has a serious record about that. [00:05:46] Speaker 01: Did a deep dive for the election in 2020 [00:05:50] Speaker 01: found no such evidence. [00:05:52] Speaker 01: So where's the evidence here that suggests that there's really a problem? [00:05:56] Speaker 02: Sure. [00:05:56] Speaker 02: So I would start with the NVRA itself. [00:05:59] Speaker 02: Congress wanted to increase access to voter registration, but it also recognized that doing that could lead to bloated rolls, which causes voter fraud. [00:06:10] Speaker 01: So the very cause voter fraud, it maybe offers the potential for it. [00:06:15] Speaker 01: Yes. [00:06:16] Speaker 01: But you've only got the first of what is a series of events. [00:06:19] Speaker 01: And we've seen nothing in the way of evidence so far or any basis, any factual allegations that give us a plausible reason to think that there's a case there that, in fact, an ineligible people have voted in any number. [00:06:34] Speaker 02: Well, again, I think Congress, we're saying the risk that that will happen, that fraud will take place, is increased by ineligible voters on the rolls. [00:06:44] Speaker 02: Congress recognized that. [00:06:45] Speaker 02: The Supreme Court in the Crawford case in 2008, Indiana enacted a voter ID law, and the Supreme Court upheld it saying that [00:06:54] Speaker 02: Indiana had a compelling interest to prevent fraud because by their own fault, they had left too many voters on the rolls. [00:07:02] Speaker 02: They did not have a sufficient maintenance program. [00:07:04] Speaker 02: And in the opinion there in 2008, the court said that is a compelling interest that if you have unmaintained rolls, there is an increased risk of fraud. [00:07:12] Speaker 02: We don't have to wait for that harm. [00:07:14] Speaker 02: to take place to have standing to bring a case of future injury. [00:07:18] Speaker 04: You don't need to wait for it to take place, but you do need, I mean, I'm just repeating what Judge Clifton said. [00:07:23] Speaker 04: You do need to allege facts that support a plausible inference that it is more than speculative. [00:07:30] Speaker 04: And so I'm looking at paragraph 29 of your complaint and it says, you know, because the secretary does not maintain accurate roles, ineligible voters have an opportunity to vote. [00:07:41] Speaker 04: risking the dilution of plaintiffs' legitimate votes. [00:07:46] Speaker 04: Is that the allegation that you have on this point, or is there something else in the complaint? [00:07:51] Speaker 04: Because as I read the complaint, that was it on this point. [00:07:54] Speaker 02: Well, we cited the Carter-Baker report from 2004, which talks about how unmaintained voter rolls invite [00:08:05] Speaker 02: uh... invite fraud through forgery through impersonation through duplicate votes and again we rely heavily on the department of commerce case where uh... from twenty nineteen where the supreme court said their third parties who in response to a citizenship question on the census they may in the future uh... [00:08:25] Speaker 02: declined to respond to that, even though that would be unlawful. [00:08:29] Speaker 02: That would be unlawful third party conduct. [00:08:31] Speaker 02: And even though it was sort of an irrational fear because the government cannot initiate enforcement actions based on their census responses because that remains confidential. [00:08:41] Speaker 02: So the Supreme Court didn't say you need to prove that it's certainty that these third parties will act unlawfully. [00:08:49] Speaker 02: You can have a predictable third party consequences based on [00:08:55] Speaker 02: Um, uh, you know, supporting evidence, which they had, and that was on a trial record here. [00:09:01] Speaker 02: We're just at the pleading stage. [00:09:02] Speaker 02: We don't need to show certainty. [00:09:03] Speaker 02: We just need to show plausible inference. [00:09:06] Speaker 02: And I think if we take Congress's own factual Congress's own legislative findings and purpose, if you look to the legislative history, it talks about, uh, unmaintained voter rolls. [00:09:15] Speaker 02: increasing the risk of fraud. [00:09:17] Speaker 02: The Supreme Court in Crawford and again in the Husted case talking about states having a compelling interest to prevent fraud through voter maintenance. [00:09:26] Speaker 02: The Carter Baker report and the expert report that we appended at the pleading stage on a facial attack, it is at the very least plausible that that is a potential outcome of unmaintained voter rolls. [00:09:41] Speaker 01: plausible, it is a potential outcome, doesn't make it a plausible outcome. [00:09:48] Speaker 01: With no evidence suggested that I can see in the complaint beyond the other general allegation that Judge Miller pointed to, what makes this anything more than theoretical and speculative? [00:10:04] Speaker 01: You've got to have something more than speculation. [00:10:06] Speaker 01: Lots of cases talk about that. [00:10:09] Speaker 01: So far, [00:10:10] Speaker 01: I'm not hearing anything other than it's a possibility. [00:10:14] Speaker 02: I think it's a likely possibility. [00:10:15] Speaker 01: I was raised in Chicago. [00:10:17] Speaker 01: I understand vote fraud. [00:10:19] Speaker 01: But that doesn't mean that the fact that there are additional names on the list means that, in fact, there's a plausible problem as distinguished from the fact that the efforts of Congress to make sure people don't get pushed off too early leave more [00:10:39] Speaker 01: names on the list and probably you'll want to have voting, but it doesn't tell us that any of those additional names actually vote. [00:10:48] Speaker 02: So I guess I don't know of any other way to prove that something is certainly going to happen down the road. [00:10:58] Speaker 01: just certainly plausibly going to happen. [00:11:00] Speaker 02: And I think it's plausible because Congress recognized it's a distinct possibility, their legislative findings and purpose, the Supreme Court, and study. [00:11:11] Speaker 03: So until the elections take place… If you had a history that would have made this far more compelling. [00:11:17] Speaker 03: If you had evidence from the 2020 election, the 2016 election, the 2012 election, whatever [00:11:21] Speaker 03: that people were actually voting who were not eligible, that might be powerful evidence to say, look at the number of people that we think are on these roles that shouldn't be, and given past history, we can assume that some percentage of them are going to be voting. [00:11:41] Speaker 03: But I don't see anything here. [00:11:43] Speaker 03: All you've offered is a risk that someone might vote who shouldn't vote in the future. [00:11:49] Speaker 02: Well, again, I would point again to the Department of Commerce case where the Supreme Court didn't require not even a voting case. [00:11:56] Speaker 02: Right. [00:11:57] Speaker 02: But that was dependent on unlawful third party behavior. [00:12:00] Speaker 02: Here we're saying it's it's predictable and plausible based on what Congress, the Supreme Court and academic studies and what commissioned reports have said. [00:12:09] Speaker 02: Now, in the Crawford case, it's not plausible if all of the people who are on the rolls are dead. [00:12:16] Speaker 03: If they moved out of state, maybe. [00:12:19] Speaker 03: We don't have any idea where these folks are. [00:12:22] Speaker 02: Actually, if there are deceased voters on the rolls, that is an opportunity for improperly cast ballots through forgery, through people sending those in. [00:12:31] Speaker 02: Any evidence of that in the past? [00:12:34] Speaker 02: In the Crawford case, the court talks about deceased voters. [00:12:40] Speaker 01: Justice Stevens is also from Chicago. [00:12:43] Speaker 02: He knows the history. [00:12:45] Speaker 01: He knows the history and leads the concern, but at issue there is the voter ID law. [00:12:52] Speaker 01: And, and I can understand a more, a tighter connection between what's at stake there and this pretty general allegation that somehow the secretary of state has mismanaged the process. [00:13:07] Speaker 01: So something ought to be done about that. [00:13:11] Speaker 01: So we have anything [00:13:15] Speaker 01: that suggests that in fact there have been people not lawfully, properly eligible to vote who have in fact cast ballots in Arizona. [00:13:26] Speaker 02: It is not in the record, but the Arizona Attorney General has posted examples of convictions where people have forged signatures and cast absentee ballots. [00:13:37] Speaker 02: We could put that more affirmatively in the complaint. [00:13:41] Speaker 02: We don't think that's necessary because the plausibility is established by studies, by Congress, by the Supreme Court. [00:13:48] Speaker 02: I just to get over the plausibility threshold that this on a facial attack on on on at the pleading stage. [00:13:56] Speaker 02: I don't think it's necessary to go back and to put in. [00:13:59] Speaker 02: Now if you think that's the case it could we can put it in there have been federal convictions as well. [00:14:04] Speaker 02: And I can just give you an example judge by the is not in the record. [00:14:08] Speaker 02: my wife's grandfather passed away before the 2024 election. [00:14:12] Speaker 02: He was still registered to receive an absentee ballot. [00:14:16] Speaker 02: He got that in the mail. [00:14:17] Speaker 02: My mother-in-law picked it up and she has very strong views on on politics. [00:14:21] Speaker 02: She said I could I could send this in and sign his name now. [00:14:24] Speaker 01: I feel like I need to give her Miranda warnings right [00:14:26] Speaker 02: Well, as much as I would like to put my mother-in-law in prison, I talked her out of it. [00:14:31] Speaker 02: So she didn't do it. [00:14:32] Speaker 02: But that can happen. [00:14:33] Speaker 02: And it is a plausible consequence. [00:14:35] Speaker 02: And at this stage, without having taken discovery and knowing more about what's happening behind the scenes, I think... You do know that we were live streaming this argument. [00:14:47] Speaker 02: Yes. [00:14:47] Speaker 02: I'll stand by what I said there. [00:14:51] Speaker 02: So the other, I just do want to direct you to the Hall v. D.C. [00:14:55] Speaker 02: Board of Elections case. [00:14:56] Speaker 02: I think this is another one that's very important on this question of vote dilution. [00:15:01] Speaker 02: Judge Randolph's opinion for the D.C. [00:15:03] Speaker 02: Circuit held that voters in D.C. [00:15:05] Speaker 02: had standing to challenge a D.C. [00:15:07] Speaker 02: law that would have allowed non-citizens on the rolls. [00:15:11] Speaker 01: So there's no real doubt about is somebody going to do something? [00:15:15] Speaker 01: Will non-citizens vote? [00:15:17] Speaker 01: In that case, yeah, here's a ballot. [00:15:19] Speaker 01: You're allowed to vote. [00:15:21] Speaker 01: And the citizens complained that expansion of the electorate was improper. [00:15:27] Speaker 01: Well, the fact that dilution would follow that change in law was pretty easy to see. [00:15:33] Speaker 01: The problem we have, and we're bound by our court's case law in any event, but the problem in our case is that it's hard to see where the dilution actually happens [00:15:43] Speaker 01: that we get a handful of convictions, but not enough that are going to ever change anything. [00:15:49] Speaker 01: And all of the theories seem to rest on the same foundation. [00:15:52] Speaker 01: I mean, you outlined at the beginning, you've given us in the briefing the variations on the theme about confidence and integrity, but all of that, or an expenditure of money, but all of that rests on the [00:16:07] Speaker 01: the likelihood, the plausibility of the allegation that people who shouldn't be voting are going to vote and have voted in the past to give us some historical record. [00:16:18] Speaker 01: And so I understand the distinction you draw on the Hall case, but it seems to me that just isn't what we're dealing with here because there's no question there, but that non-citizens were going to be allowed to cast their ballots and here that's still open to question. [00:16:32] Speaker 02: So I would say that that case is only a difference of degree, because there, there's still, it's possible that none of the non-citizens would decide to vote. [00:16:41] Speaker 01: It's highly unlikely that they're allowed to vote. [00:16:44] Speaker 02: Right, and I'm saying that here, where you have hundreds of thousands of ineligible voters on the rolls, [00:16:50] Speaker 02: There it is plausible that someone is going to take advantage of that and cast improper ballots. [00:16:56] Speaker 01: So even though it's a difference of cases, given that past history has not turned up a record like that. [00:17:03] Speaker 01: And again, Arizona's got history there. [00:17:05] Speaker 02: Well, and I don't want to repeat the sources that we rely on the NVRA, Congress, but I would also say that to the extent that those improper ballots are cast, it's also very hard to detect. [00:17:14] Speaker 02: So the convictions are probably just part of a larger, and I see that I'm running low on time, so I'll reserve it. [00:17:22] Speaker 02: Thank you. [00:17:23] Speaker 04: Mr. Carlson. [00:17:30] Speaker 00: Good morning your honors may it please the court my name is Kara Carlson I represent the Arizona Secretary of State. [00:17:36] Speaker 00: This court should affirm the district court because plaintiffs lack standing to satisfy the irreducible constitutional minimum plaintiffs must demonstrate injury causation and redress ability. [00:17:49] Speaker 00: They have not. [00:17:51] Speaker 00: In fact, they expressly deny that their assumption of bloated voter rolls has led to fraudulent votes. [00:17:59] Speaker 00: They have not made that showing. [00:18:01] Speaker 00: They have admitted there is at most a risk of or an opportunity for illegal votes to be cast and assuming [00:18:10] Speaker 00: co-council's argument if his mother-in-law had done something different and cast that ballot. [00:18:16] Speaker 00: There would be no way to connect that allegation of a fraudulently cast ballot, even assuming it did get tabulated, that it made it through the signature verification process. [00:18:28] Speaker 00: It wouldn't be attributed to the Secretary of State's voter role, voterless maintenance. [00:18:33] Speaker 00: It would be attributed to the interplay between Arizona's [00:18:39] Speaker 00: early voting procedures, which allow early voting 27 days before the election, and perhaps when his father-in-law was deceased, and then a theoretical illegal decision to cast that vote, and then the county's failure to catch [00:19:03] Speaker 00: that illegally cast ballot despite the multiple steps that are in place to prevent voter fraud in the state. [00:19:11] Speaker 00: And I also Judge Miller brought up paragraph 29 in [00:19:20] Speaker 00: the complaint, and not only is that speculative, it also rests on this legal conclusion, the legal conclusion being that the Secretary of State is failing to comply with NAVRA. [00:19:32] Speaker 00: The entire complaint hinges on that, and that's a legal conclusion under Iqbal, and that is not [00:19:43] Speaker 00: enough. [00:19:43] Speaker 00: They don't bring actual facts. [00:19:45] Speaker 00: They don't bring actual allegations that there have been these illegal, um, votes being changed. [00:19:53] Speaker 01: The rest on the number of names on the rules. [00:19:56] Speaker 01: Correct. [00:19:57] Speaker 01: And I will acknowledge at first blush. [00:20:01] Speaker 01: I sat there and said, wow, those are a lot of names, uh, representing a pretty big percent of the population. [00:20:08] Speaker 01: Uh, is there a problem there? [00:20:10] Speaker 00: So why shouldn't we think that's a problem? [00:20:13] Speaker 00: There is not a problem there because first of all, as a bare legal conclusion, this court is allowed and in fact must under Article 3 jurisprudence to determine whether that is just a naked legal conclusion or whether there's actual plausibility there. [00:20:29] Speaker 00: That's a fact. [00:20:31] Speaker 01: The number of names on the roll compared with the population is itself a fact. [00:20:37] Speaker 01: Does that fact make the allegation of [00:20:41] Speaker 01: the legal consequences sufficiently plausible. [00:20:46] Speaker 01: Why is it we shouldn't be concerned to say that, and I've confessed, I've forgotten the numbers, that this great big number in terms of a percentage of the population isn't a source of concern, isn't a reason to think plausibly there's a problem? [00:21:02] Speaker 00: No, because that's actually required under the NVRA. [00:21:09] Speaker 00: Yes. [00:21:10] Speaker 00: included in the briefing a little thought experiment of if you had one voter, one person registered in county A, and then you had that voter moves out of the county and you have voter B move in. [00:21:25] Speaker 00: Under NAVRA, you would have to include voter A on that voter registration roll for two additional cycles. [00:21:34] Speaker 00: Now, does that mean that the voter roll is twice as big as it should be? [00:21:38] Speaker 00: And that's attributable to the Secretary of State? [00:21:42] Speaker 00: No, it's a function of the law to address what Congress had, you know, the countervailing interests of ensuring that voters are not removed from the roles improperly, were not removed before they should be, while also trying to address maintaining... The question, I mean, I understand what you just relate because I experienced it in the night, I forgot what year that was passed, but after [00:22:08] Speaker 01: ever was passed, the Hawaii, where I'm from, voter rolls expanded dramatically because they used to purge pretty aggressively in Hawaii. [00:22:17] Speaker 01: If you didn't vote in a two-year cycle, off you go. [00:22:21] Speaker 01: It made it easy to re-register. [00:22:23] Speaker 01: But because of the federal statute, a lot more people. [00:22:29] Speaker 01: And so I understand how that [00:22:32] Speaker 01: phenomenon works, is there a basis to suggest, as the plaintiffs have in their complaint, that the Secretary of State is not being as aggressive as he could be in purging up to the standards permitted by the federal statute? [00:22:53] Speaker 01: I guess why we're here. [00:22:54] Speaker 01: The plaintiffs alleged that, okay, yeah, you can't purge as much perhaps as Hawaii used to and maybe Arizona used to, but you can purge at a certain point. [00:23:05] Speaker 01: And the allegation is the secretary of state has not done that. [00:23:09] Speaker 01: Why isn't that a plausible allegation? [00:23:11] Speaker 00: Well, I think in order to evaluate whether that's plausible, you'd have to look at Arizona in comparison and in its compliance in comparison to the rest of the country and Arizona, uh, [00:23:23] Speaker 00: overwhelming, is a leader actually in NAVRA compliance. [00:23:28] Speaker 00: And you can look at the publicly noticeable election assistant commission reports. [00:23:33] Speaker 00: And again, their expert relied on this. [00:23:37] Speaker 00: You can review it according to rule 201, and it does not violate the 12B1 standards. [00:23:46] Speaker 00: It's a facial attack, yes, but you are allowed to look at those public documents [00:23:53] Speaker 00: to determine whether or not plaintiff's claims here are plausible. [00:23:57] Speaker 00: And they say in paragraph 29, or they say in a number of paragraphs, that the secretary does not conduct list maintenance. [00:24:11] Speaker 00: That is not true. [00:24:12] Speaker 00: And this court is not bound to consider that true, that sweeping broad generalization when we have a long track record of publicly available documents that are subject to judicial notice that demonstrate that Arizona actually removes hundreds of thousands of people from its voter rolls every two years. [00:24:32] Speaker 00: We know this. [00:24:34] Speaker 00: We know that Arizona removes more deceased people. [00:24:38] Speaker 00: They removed 108,000. [00:24:40] Speaker 00: Deceased people plaintiffs also rely on the 16 165 M letters to make the allegation that the secretary concedes. [00:24:51] Speaker 00: that there is no NAVRA compliance. [00:24:54] Speaker 00: And that is just not true. [00:24:55] Speaker 00: Section 16165M was added in 2022 by the state legislature. [00:25:03] Speaker 00: It has nothing to do with NAVRA. [00:25:05] Speaker 00: It post-states it by 20 years. [00:25:06] Speaker 00: And it's just not a concession of anything other than the Secretary of State was ordered to produce, identify the number of people every quarter who were removed [00:25:20] Speaker 00: from the roles because of certain changes. [00:25:23] Speaker 00: So death, which is conceitedly one of the reasons that you can be removed under NBRA. [00:25:29] Speaker 00: But there are additional reasons, including juror questionnaires. [00:25:33] Speaker 00: That's a unique attribute of Arizona law that the secretary has to report to the legislature. [00:25:41] Speaker 00: And to the extent that process remained, [00:25:46] Speaker 00: under review. [00:25:48] Speaker 00: It was not because the secretary, as plaintiffs alleged, had not been conducting this review or these removals for decades. [00:25:56] Speaker 00: It was because the law was enjoined by this court. [00:26:01] Speaker 00: So it's just, when you look at the record below, it is abundantly clear that plaintiffs' claims are based on [00:26:11] Speaker 00: um, speculation and hyperbole counsel. [00:26:14] Speaker 03: What, what, what kind of a complaint could plaintiffs bring that would satisfy the secretary of state? [00:26:22] Speaker 00: A complaint that plaintiffs could bring that would satisfy article three standing would be one that alleged that they were improperly removed because of [00:26:34] Speaker 00: You know, they were actually alive and the Secretary of State removed them because they were dead. [00:26:38] Speaker 03: That's not a problem. [00:26:39] Speaker 03: That's not a vote to levitate a completely different case. [00:26:41] Speaker 03: I should have been more precise. [00:26:42] Speaker 03: What kind of a vote dilution case could be brought where the Secretary would admit that there was standing to bring the suit? [00:26:51] Speaker 03: You can contest on the merits, but at least for Article 3 purposes, the Secretary would concede that it satisfied the pleading standards. [00:26:58] Speaker 00: Well, I think that that would be one under [00:27:02] Speaker 00: the 14th Amendment and redistricting cases, the ones where that has been established. [00:27:08] Speaker 00: Here, they're bringing it under a specific federal statute. [00:27:12] Speaker 00: And the problem is that this court has the authority to address a lot of things, but it does not have the authority to address everything. [00:27:21] Speaker 00: And that would really eviscerate the heart of the constitutional separation of powers and accountability of state elected officials. [00:27:31] Speaker 04: So just to give an example of maybe a possible answer to judge by B7. [00:27:36] Speaker 04: Suppose we had a complaint with very specific factual allegations that because there are ineligible, I know you don't think that this is true, but imagine the complaint alleged that because there are this number of ineligible people still on the rolls that we hear is some evidence that 1,000 of them are voting in every election. [00:27:59] Speaker 04: And therefore there is a non-speculative allegation that the challenged practice is creating a real prospect of ineligible people voting. [00:28:14] Speaker 04: Would that be enough? [00:28:17] Speaker 00: I think that would be a significantly harder question. [00:28:21] Speaker 00: I think you would still have to add the allegation, and I think that you could in that case, of an additional 14th Amendment violation. [00:28:28] Speaker 04: But what you've done there is what plaintiffs have failed to do here, which is... And what is the 14th Amendment violation that you would need to add? [00:28:37] Speaker 04: What does that look like? [00:28:38] Speaker 00: That their votes are being actually diluted. [00:28:41] Speaker 00: Their claim is solely based on an alleged violation of NAVRA. [00:28:45] Speaker 04: But I thought your... [00:28:49] Speaker 04: I guess I had understood your sort of first line legal position to be that if the claim is just all eligible voters as a class are having their votes diluted by a bunch of ineligible voters, that you took the position that that was a generalized grievance. [00:29:10] Speaker 04: And so even if you had lots of evidence that that dilution was in fact happening, you don't think that would be enough for standing? [00:29:18] Speaker 04: Is that right? [00:29:19] Speaker 00: I think that under Election Integrity Project, which was one of the first cases you asked opposing counsel about, that yes, you would, under binding Ninth Circuit precedent, you wouldn't be allowed to, there wouldn't be standing there even if you showed, made some demonstration. [00:29:36] Speaker 00: You started talking about thousands. [00:29:38] Speaker 00: I think that the farther afield you, the larger the number of ineligible voters. [00:29:48] Speaker 00: the closer you might get to constitutional harm. [00:29:52] Speaker 04: The other issue that I would look at... And the constitutional harm as opposed to... I mean, you're distinguishing between just a violation of the statute and the constitutional harm. [00:30:03] Speaker 04: And so there's constitutional harm if thousands of ineligible people are voting, but not if... I mean, suppose they had... [00:30:12] Speaker 04: Suppose they had very clear, unambiguous, non-speculative allegations that established that because of the practice that they're challenging, one ineligible voter would cast a ballot. [00:30:29] Speaker 04: That's not enough, but some larger number is? [00:30:32] Speaker 04: Is that your view? [00:30:34] Speaker 00: My view is that it would be a harder case. [00:30:40] Speaker 00: I still think that [00:30:41] Speaker 00: this court, an average challenge to the voter list maintenance procedures is not the proper vehicle to assert those claims. [00:30:50] Speaker 00: We have election challenges in Arizona law. [00:30:54] Speaker 00: We have mandamus claims where if plaintiffs believed that the secretary of state, that they had good evidence that the secretary of state was not conducting list maintenance the way they were supposed to, they could file a mandamus action in state court to require [00:31:09] Speaker 00: that proceedings to happen. [00:31:12] Speaker 00: They haven't done those things. [00:31:13] Speaker 00: And that's the proper venue, not to go to federal court with these claims that because of alleged additional voter registration, therefore, there could be an opportunity in the future for there to be illegal votes that are actually counted. [00:31:32] Speaker 00: Again, Lake versus Fontes, [00:31:35] Speaker 00: also from the Ninth Circuit, countenances against that chain of hypotheticals. [00:31:39] Speaker 00: And that was an even closer case in terms of it was allegations that the voting machines could not be trusted to tally votes. [00:31:48] Speaker 00: And the Ninth Circuit said that chain of speculation was not enough. [00:31:51] Speaker 00: And here we are taking an even additional step back saying voter registration practices are not what they need to be, allegedly, and therefore, [00:32:02] Speaker 00: there could be fraudulent votes, and therefore, those fraudulent votes could be counted, and therefore, I am concerned. [00:32:10] Speaker 00: If that's the case, then there is, it is difficult to imagine in Article III, it is difficult to imagine what would remain of Article III if that's the case, if you could just have this chain of events or just a naked assertion of concern based on these inferences. [00:32:34] Speaker 01: Well, Article 3 would be satisfied by factual allegations that made the claim plausible. [00:32:43] Speaker 01: I mean, we were off briefly, we should leave election integrity issues to state law, mandamus actions and so forth. [00:32:51] Speaker 01: That's an entirely different path. [00:32:53] Speaker 01: If in fact, plaintiffs, and I'm not limiting it to this case, if a set of plaintiffs in some case could come in and say, [00:33:04] Speaker 01: We have these factual allegations that make plausible a claim that this election and statewide maybe gets harder, but [00:33:17] Speaker 01: I mean, look around this crowd. [00:33:19] Speaker 01: Everybody around here was conscious the year 2000. [00:33:21] Speaker 01: And we remember the year 2000, Florida, one of the biggest states in the country, held the whole country up for what, a month trying to figure out who the next president was. [00:33:31] Speaker 01: Sometimes elections turn out to be very close. [00:33:33] Speaker 01: And so I'm not sure that article three is meant to be an impenetrable barrier to being able to come in. [00:33:43] Speaker 01: If you have factual allegations that make a claim plausible, [00:33:48] Speaker 01: that this is going to dilute my vote such that I'm materially affected by it. [00:33:54] Speaker 01: It might turn the outcome of the election around. [00:33:57] Speaker 01: Now, you've been asked what number of votes, it's hard to say, but I forget what the number was in Florida. [00:34:04] Speaker 01: In the end, there are a couple hundred or so forth. [00:34:07] Speaker 01: If you could come in and say that, look, we got dozens of suspicious ballots in this particular place, and I got facts that make plausible an allegation that leaving these names on the rolls of people that weren't actually eligible to vote. [00:34:23] Speaker 01: presents this risk, why wouldn't that be enough for Article 3 standing? [00:34:27] Speaker 00: Well, actually, that was enough in one of the Public Integrity Legal Foundation lawsuits. [00:34:33] Speaker 00: But what they had there, which plaintiffs don't have here, is they had a list of people who were on the voter registration rolls in, I want to say Michigan, Michigan or Wisconsin. [00:34:47] Speaker 01: One of those cold states. [00:34:49] Speaker 00: Unlike here. [00:34:50] Speaker 00: And then they had a list of people who were dead. [00:34:53] Speaker 00: And so they could demonstrate that there were thousands of people who were simultaneously on the registration rolls and were dead. [00:35:04] Speaker 00: Under NAVRA, there is no safe harbor provision for these people. [00:35:07] Speaker 03: That would be enough without any evidence that anybody who was dead had their ballot used and that would be sufficient? [00:35:16] Speaker 03: I think that would be sufficient to get them past the pleading stage under the- That seems to be quite a concession, given the question I asked you a few minutes ago, but that's curious. [00:35:28] Speaker 00: Okay. [00:35:34] Speaker 00: In Election Integrity Project, there was also additionally a question about whether the state accurately maintained the voter rolls. [00:35:42] Speaker 00: This court said that [00:35:45] Speaker 00: that was not something, because it wasn't based on a cognizable characteristic of those alleged improperly maintained voter roles, the plaintiff still did not have standing. [00:36:00] Speaker 00: So for those reasons, I, if the court has no further questions, I would ask the court to affirm the district court below. [00:36:08] Speaker 04: All right, thank you. [00:36:13] Speaker 02: Thank you. [00:36:13] Speaker 02: Judge Miller, your hypothetical, I think, was illuminating where you asked, well, what if the plaintiffs could show that people actually cast improper ballots based because there were ineligible voters on the rolls. [00:36:26] Speaker 02: They took advantage of that. [00:36:27] Speaker 02: That's exactly the problem that if we have to wait to the election, then the injury is no longer redressable. [00:36:34] Speaker 01: And so at that point evidence from past elections, the allegation that there have been bloated voting rules isn't brand new. [00:36:42] Speaker 01: The statue wasn't passed last year. [00:36:44] Speaker 01: Do we have any evidence or allegations based on facts from past elections that in fact there are people casting votes or [00:36:56] Speaker 01: other people casting votes in the names of people who aren't properly entitled to vote. [00:37:01] Speaker 01: And that's what seems to be missing from this complaint. [00:37:05] Speaker 02: So we filed our lawsuit in 2024. [00:37:09] Speaker 02: And so, you know, before any election, we're in between election periods. [00:37:14] Speaker 02: So the voter rolls at that point, we're looking at a snapshot at that time. [00:37:17] Speaker 02: and it's the risk from the thousands of ineligible voters at the time. [00:37:22] Speaker 02: As far as past examples of fraud, again, it's not in the complaint. [00:37:26] Speaker 01: We don't think it's necessary to get over the plausibility hurdle, but the Arizona AG... Well, stop, because how is it not... I mean, if your claim is vote dilution, then unless you have improperly cast ballots, there's no dilution. [00:37:41] Speaker 01: You don't have any allegation that's plausible of dilution. [00:37:45] Speaker 01: You've got your front end saying there are lots of names on the rolls that shouldn't be. [00:37:51] Speaker 01: But your theory is dilution or variations on dilution theme. [00:37:55] Speaker 01: And if I haven't had an improper ballot cast, you don't have a plausible allegation of dilution. [00:38:01] Speaker 02: Again, I think Congress's conclusions in the Supreme Court and the Carter study, there was a President Obama commission to study that that's not in the record, but there are lots of studies that talk about examples of convictions and just schemes based on ineligible voters on the rolls. [00:38:20] Speaker 02: that those are what's exploited. [00:38:23] Speaker 02: And I just want to run through very quickly some of this court's precedent on predictable effects of government action where at the pleading stage the burden is very modest. [00:38:34] Speaker 02: Judge Bybee in San Francisco versus UCSIS, you said predictable effect of government action on third parties. [00:38:39] Speaker 02: that's predictable based on the evidence we put forward. [00:38:42] Speaker 02: Judge Miller in the solar energy case and in the Association of Irritated Residents, Judge Watford in the O'Hanley v. Weber case said, you could have standing at the pleading stage of even if there's several twists and turns. [00:38:55] Speaker 02: In City of Oakland v. Oakland Raiders, Judge Tashima said that this is somewhat speculative and a long and windy chain, but that's suffice. [00:39:03] Speaker 02: I think [00:39:04] Speaker 02: And to your question, Judge Bobby, I don't think there's another complaint that could possibly survive under the standard. [00:39:11] Speaker 02: We've put forward allegations that have to be assumed that the claim on the merits assumed true when you're looking at the standing question. [00:39:19] Speaker 02: And we're talking about 500,000 to 1.2 million. [00:39:22] Speaker 01: The Supreme Court has said it's got to be plausible. [00:39:24] Speaker 01: Yes. [00:39:25] Speaker 01: Just saying. [00:39:26] Speaker 01: this horrible thing might happen doesn't make the allegation plausible. [00:39:29] Speaker 01: That's the burden we have to deal with. [00:39:31] Speaker 02: So we have evidence at each stage of the chain that I've talked about repeatedly, but in Clapper, for example, there were clean breaks. [00:39:38] Speaker 02: There was on an evidentiary record, there were clean breaks in the chain. [00:39:42] Speaker 02: We don't have that at each stage. [00:39:43] Speaker 02: We have plausible allegations. [00:39:46] Speaker 02: Thank you very much. [00:39:46] Speaker 04: Thank both counsel for the arguments. [00:39:49] Speaker 04: The case is submitted and we're adjourned.