[00:00:00] Speaker 03:
May it please the Court, Andrew Branagh for the United States. I'd like to reserve three minutes of my time for rebuttal.

[00:00:08] Speaker 03:
Last summer, the Department of Justice requested from Oregon their statewide voter registration list based on the plain authority of the Civil Rights Act of 1960 in order to enforce the language of the National Voter Registration Act and the Help America Vote Act. Oregon refused. And the district court, in dismissing our subsequent... Can I ask a question?

[00:00:27] Speaker 01:
If it was plain authority, why didn't you cite it in your first demand letter?

[00:00:31] Speaker 03:
The plain authority to have the state maintain their Voter registration list is listed clearly in the NBRA.

[00:00:41] Speaker 01:
Title III of the CRA is not in that demand letter, correct?

[00:00:43] Speaker 03:
The CRA is not listed in the initial request to the state. It is listed explicitly.

[00:00:50] Speaker 01:
But would you expect if that authority was so plain that you would have included it in that first letter?

[00:00:55] Speaker 03:
Well, the first letter was intended to provide Oregon the opportunity to work with the Department of Justice in maintaining a clean and accurate voter roll of eligible voters, as they are required to do under both the NVRA and HAVA. The subsequent letter established the statutory requirements for that demand.

[00:01:21] Speaker 03:
under the CRA.

[00:01:22] Speaker 04:
Council, I'm going to be asking your friend this question, but are you aware of any law that says you can't split your request and the reasons for it into more than one communication?

[00:01:36] Speaker 03:
No, I'm not.

[00:01:38] Speaker 03:
The language in the CRA is fairly broad in this context. Under Section 20703, the statute provides that The state election official must provide those records upon demand of the United States. And I think that a very natural reading of the word demand would encompass multiple different communications. And the contrary authority that has been cited to by opposing counsel or by the state of Oregon here is simply inapplicable to the type of situation that is relevant under a CRA demand.

[00:02:27] Speaker 03:
They cite the Nish Chavez case, I believe, as an example of where the notice must be presented to the individual who's going to need to appear in court in a single communication. But that case is very much different from these cases. That case involved a removal process by the Immigration and Naturalization Services. In that case, it was very important for all of the information to be in a single communication.

[00:02:59] Speaker 03:
And if it wasn't in that, because that established the date that the individual could be removed upon, none of those potential bad, events could happen to the state here.

[00:03:12] Speaker 04:
We had provided them with... I'm going to jump ahead a little, and I apologize for interrupting your argument, but I want to ask you about the SORNA issue.

[00:03:23] Speaker 03:
Okay.

[00:03:24] Speaker 04:
So, first, am I correct that the United States has never argued that even if there were a SORNA violation, that can't be an excuse for the state not producing in response to the request?

[00:03:42] Speaker 03:
I am not aware of that type of argument that we've made.

[00:03:47] Speaker 04:
So you would agree that even if there were such an argument, it's been forfeited?

[00:03:53] Speaker 04:
By opposing counsel?

[00:03:54] Speaker 03:
No, by you.

[00:03:55] Speaker 04:
No. Have you ever argued that even if there is a SORNA violation, the remedy can't be a refusal by the state to produce?

[00:04:08] Speaker 03:
I believe we would say that. Well, have you said it? Have we said that? Well, we have said in our brief that the United States is completely consistent with the Privacy Act and the SORNA requirements. You've said you've complied with SORNA.

[00:04:23] Speaker 04:
I don't recall ever seeing the United States saying, even if we haven't, the remedy ordered here doesn't work.

[00:04:29] Speaker 03:
I believe we made the argument that this is not the proper time or place for a Privacy Act argument in general, right? The correct assessment for the Privacy Act, which provides remedies for individuals who may have had their private documents mishandled by the government or their data leaked, is to file suit in district court And at that time, they should seek remedies from the government itself. It is not the time or place for the state to refuse to participate in a normal records request on the potential that the United States could violate the Privacy Act.

[00:05:11] Speaker 04:
So also on the Swerna, am I correct that you have... Hello, can you hear me? Yes.

[00:05:21] Speaker 02:
Oh, I'm sorry, my... Mike must have been off. I didn't have a question for the government. As soon as you're done, Judge Bennett.

[00:05:27] Speaker 04:
All right.

[00:05:29] Speaker 04:
I'll ask one more question, and I'll try to make it short.

[00:05:33] Speaker 04:
So, again, on SORNA, the government's argument is that – Basically, every voter is a potential victim, and every voter registration is a subject of investigation.

[00:05:52] Speaker 04:
And so the August 2003 federal register entry works to satisfy SORNA. Do I basically have that right?

[00:06:01] Speaker 03:
Yes, Your Honor, under these circumstances. So every voter in the United States is a potential voter? No, under the circumstances for this request that we have placed to the state of Oregon, right?

[00:06:14] Speaker 03:
By the way, this is not a new type of record that the United States Department of Justice Civil Rights Division will include in its computer system, right? Since 2003, the Department of Justice has had multiple state voter registration lists of unredacted information that we have received pursuant to requests from the Civil Rights Act.

[00:06:40] Speaker 03:
Following the passage of the HAVA in 2004, the Department of Justice instituted actions against Texas, Georgia, Indiana, Maine, New Jersey, under a whole variety of statutes. We received those state voter registration lists. They were kept on the exact same system that these voter registration lists are going to be kept under They were kept under the exact same auspices of the SORN. They provided the exact same notice to the individuals who are voters whose records would be included in that, that their records would be included on the Department of Justice database.

[00:07:15] Speaker 02:
All right.

[00:07:16] Speaker 03:
Judge Rendoza, you had a question.

[00:07:19] Speaker 02:
I do. I guess I'm trying to understand, how is it that you have complied? Because isn't the SOAR application essentially too broad? How do we know that that is not just too broad to give the public notice, that this is the type of information that you're requesting? Why do you think that that complies with the Privacy Act?

[00:07:40] Speaker 03:
So the Privacy Act requirements involve the dual standards of not keeping information that you're not supposed to, but also providing the public with ample notice that ROUTINE USES WHICH WITH THEIR RECORDS WILL BE USED AS WELL AS THE TYPES OF RECORDS THAT WILL BE INCLUDED.

[00:08:03] Speaker 02:
CAN YOU POINT TO THE LANGUAGE THAT YOU BELIEVE ESTABLISHES THAT NOTICE TO THE PUBLIC?

[00:08:12] Speaker 03:
SO IN THE 2003 SORN THAT WAS PUBLISHED IT EXPLICITLY STATES THAT THE TYPE OF RECORDS that will be included in the Civil Rights Division's computer system there, that explicit one, involve the records that are related to the enforcement of the laws that the Civil Rights Division enforces. And that includes the NVRA, that includes the HAVA, that includes the Civil Rights Act. So we would not be including records necessarily that would involve solely the prosecution of statutes that we do not enforce.

[00:08:46] Speaker 03:
That limitation, along with the statement following that of the nature of the limitations that are there for the Department of Justice Civil Rights Division to share that information with other agencies.

[00:09:01] Speaker 02:
Counsel, if the notice is supposed to provide notice, that seems to be vague beyond disbelief. I mean, how can that provide notice?

[00:09:11] Speaker 03:
Well, it's the exact same notice that's been provided for the last 23 years for the exact same types of records.

[00:09:20] Speaker 03:
It also doesn't make much sense that it would only become an issue now when the exact same type of records have been kept.

[00:09:29] Speaker 02:
Including sensitive records?

[00:09:30] Speaker 03:
Sensitive records are anticipated. Under all of these statutes, right? So the CRA anticipated that sensitive records would be among those that would be collected by the Department of Justice in their request to these state and local election officials. You can tell it did that because it has an explicit prohibition on the disclosure of records or papers. under 20 704 and in addition the the Privacy Act applies to all the records kept by the Department of Justice Civil Rights Division So they these these are consistent statutes and we are reading them consistently Thank you if if hypothetically There were found to be a sworn violation How long would it take?

[00:10:22] Speaker 04:
And again, hypothetically, if this were the only problem, how long would it take the government to cure that?

[00:10:28] Speaker 03:
We would need at least 30 days for public notice and comment.

[00:10:31] Speaker 04:
So that's it, right? Well, I mean, you'd have to evaluate the public comment, but it would be 30 days potentially plus.

[00:10:40] Speaker 03:
30 days potentially plus. So from the time of the issuance of the decision requiring a new SORN, we would submit that through the OMB process.

[00:10:52] Speaker 03:
Once the OMB has approved it, it would be published and in 30 days. Of course, you wouldn't have to wait.

[00:10:57] Speaker 04:
I'm sorry? You wouldn't have to wait for a decision.

[00:11:01] Speaker 03:
That's true, Your Honor. We wouldn't have to wait for us to publish a new SORN. We could go ahead and do that any time.

[00:11:09] Speaker 03:
indication from this court that we should immediately.

[00:11:11] Speaker 04:
I'm not giving you any such indication.

[00:11:13] Speaker 03:
I was just asking a question. But under the, you know, one of the reasons why we initially requested the OLC opinion, which we made this court aware of last week when it was published, was our concerns under that same issue there too. We wanted to make sure that the processes that we were maintaining in the Department of Justice for these records were consistent with our SORN, and the OLC found that they were based on the plain language included therein.

[00:11:42] Speaker 01:
Can I ask you a question about that OLC opinion?

[00:11:47] Speaker 01:
It says that the department is seeking the CVRLs per the executive order. And the executive order only says the Department of Homeland Security shall review each state's publicly available voter registration list. It doesn't say the unredacted. So if you are basically trying to implement this executive order, why are you now seeking the unredacted SVRLs?

[00:12:12] Speaker 03:
In order to satisfy the elements of the order that require the Attorney General to prioritize enforcement of voting rights, which include the NVRA and HAVA. In order for us to adequately assess whether or not the state voter registration list includes individuals that may be dead, or who may be non-citizens, we need the entire list that includes either the driver's license or the four-digit SSN or the HAVA identifier code, if either of those are available, in order to ensure that we get an accurate result.

[00:12:50] Speaker 03:
We are going to be following, once we get a list, going to be following the exact same process that 93 states and localities have followed in using the SAVE system. We have signed a memorandum of agreement with DHS in order for us to, once we get the unredacted file, to upload it. They will return results directly to us from the SAVE system.

[00:13:20] Speaker 03:
We are in control of the file. where it will indicate if an individual shows up as dead.

[00:13:26] Speaker 01:
Let me ask you a question. I'm sorry, we're running out of time here, and I apologize to cut you off. So 2701 of Title III of the Civil Rights Act talks about records and papers which come into his possession relating to any application, registration, payment of poll tax, or other act requisite to voting in such election. And then 2703 talks about any record or paper required by Section 20701 to be retained and preserved upon demand and writing by Attorney General or his representative directed to the person having custody, possession, or control of such record.

[00:14:08] Speaker 01:
Do you think there's a difference when the statute uses having possession versus come into possession?

[00:14:17] Speaker 01:
No, Your Honor, I think it's... What's the difference there in those verbs, in those two sections of the same statute?

[00:14:23] Speaker 03:
The difference there, I think, is a temporal distinction, right? Because we cannot request records from someone who does not have possession of them. And as is common with all of these election records, they are passed on from state election officials and local election officials between themselves. So there will be a time when a local election official may have possession of a registration or a ballot or some form of document that they've created, and then they may turn that document or other item to a higher-ranking local election official, and it then may— But you agree on the text of those two statutes.

[00:15:05] Speaker 01:
I don't particularly see your temporal distinction, and we have to assume that Congress uses different words and means it, right? And in one statute, they say having possession, and the other statute, they say come into his possession. Let me look at the OLC memorandum on page 9. It says the term receive is used to mean come into possession of, get, acquire, or the like from any source outside of oneself.

[00:15:34] Speaker 01:
Citing Webster's Dictionary 1958, which was two years before the Civil Rights Act was enacted, correct?

[00:15:40] Speaker 04:
Yes.

[00:15:40] Speaker 01:
Yes. Okay, so it looks like even OLC is saying come into possession means you're acquiring it from a source outside of yourself.

[00:15:49] Speaker 03:
No, they're saying that the word receive means that, and the statute did not use receive. The statute used the phrase come into possession.

[00:15:58] Speaker 01:
Right, but how do they define come into possession? They define it as get, acquire, or the like. from any source outside of oneself. And I'm quoting from the OLC memo here.

[00:16:09] Speaker 03:
I understand that, but I think you're putting on the opinion an overly formulistic view of that term. I mean, that definition, Your Honor, if you were to if you were to use it, would eviscerate the entire act of any purpose whatsoever, right? Some of the records that Oregon has already conceded that they are going to give to us, including the public record, would then no longer be covered by the CRA. And everybody agrees that it should be.

[00:16:41] Speaker 01:
But your interpretation is rendering come into...

[00:16:46] Speaker 01:
surplusage, right? Because you're saying that should just say records and papers, which he possesses.

[00:16:53] Speaker 03:
No, Your Honor, because first, with regard to 20703, having possession, you can only make the request to the person who actually has the documents, right? You can't make the request to someone who does not have them. And in terms of the coming to possession, That's a broader requirement that requires the individual to maintain those records regardless of where they are in the chain, right? So that if an individual, a local election registrar, were to get a ballot or a registration document or something like that, they have come into possession of it, but they may not keep possession of it for the entire process of those 22 months.

[00:17:32] Speaker 03:
They may pass that along to other election officials, at which time the burden of retaining that passes to them, and then the request would pass to them as well.

[00:17:41] Speaker 04:
All right, counsel, we thank you for your argument. We've taken up a lot of your time with questions. We'll give you the three minutes you requested for rebuttal. Thank you.

[00:17:57] Speaker 04:
May it please the court, Robert. And just so you know, the time on the clock is your time. Correct. OK. Thank you, Your Honor.

[00:18:04] Speaker 05:
May it please the court, Robert Koch on behalf of the state of Oregon. This is a case about federalism and the separation of powers. The Constitution's Elections Clause entrusts states with the administration of free and fair elections that underpin our democracy. In this case, USDOJ seeks to reimagine a 66-year-old civil rights statute to force Oregon to create and disclose an unredacted version of its statewide voter list.

[00:18:34] Speaker 05:
and not just Oregon's, but every state in this country, to amass a national federal database of every registered voter in America. That shocking demand fails under three different measures. First, it falls outside the ambit of Title III of the Civil Rights Act of 1960. Two, it violates the Privacy Act. And three, it violates the E-Government Act.

[00:18:58] Speaker 05:
Before I begin delving into the text of Title III, I did want to take a minute to clarify a few things that were misstated by opposing counsel about how Oregon actually runs its statewide voter role as required by HAVA. Um, so opposing council talked about election records being, uh, registration cards being passed among various election officials. But how the, um, has, uh, provides federal funding to create a statewide voter role that each election official in the state can access at any time.

[00:19:33] Speaker 05:
Um, Hava.

[00:19:37] Speaker 05:
explicitly delegates to the states the discretion on how to implement that and Oregon state motto is she flies with her own wings and consistent with that motto we have our own we developed our own system and so I want to go to a question I asked your friend which is if one were to assume hypothetically that the 2003 Federal Register publication was inadequate

[00:20:07] Speaker 04:
why would that even if it were true justify an order um allowing oregon not to comply with an otherwise proper request i mean i know oregon um takes the view for many reasons that it's not an otherwise proper request but if it were why would a sworn violation even if there were one give Oregon a reason, a legal reason, not to comply with an otherwise proper request? What authority is there for that?

[00:20:39] Speaker 05:
Well, the authority is the Privacy Act and Oregon Privacy Law.

[00:20:43] Speaker 04:
Where in the Privacy Act would it give Oregon the right not to comply with an otherwise proper request by the government because the SOARN was inadequate?

[00:20:54] Speaker 05:
Because if the Secretary of State were to give over that sensitive personal information, he would be violating the Privacy Act, and at the same time would be violating Oregon privacy law that prohibits the disclosure of that sensitive information.

[00:21:09] Speaker 04:
Okay, but the Oregon Privacy Act is a separate argument, and the government's argued it's preempted.

[00:21:18] Speaker 04:
But you said there is something in the Privacy Act itself which would allow Oregon to say as a defense, your soreness is inadequate, therefore your demand doesn't work. Can you point me to any authority for that?

[00:21:36] Speaker 05:
I know that our state officials have to comply with federal and state law in the commission of their duties. And so it would be under that general legal principle that they have to discharge their duties inconsistently.

[00:21:50] Speaker 04:
Okay, but as of right now, you have nothing, no statute or case you can point me to?

[00:21:56] Speaker 05:
Your Honor, because the federal government never raised it as an argument, I do not have a case.

[00:22:00] Speaker 04:
All right, well, that's a fair response, although your friend disputes that.

[00:22:06] Speaker 04:
I mean, if I think that this is a problem, I'll have to take a further look at whether I think it's forfeited, but go ahead with that.

[00:22:13] Speaker 05:
Yeah, and I would say there's nothing in the reply brief that that mentions anything of the sort. And so that was never because that argument was never raised. I have not done independent legal research to buttress it.

[00:22:26] Speaker 05:
I will say that when USDOJ made their demand, we did say that we would provide a public voter list as long as the federal government did comply with the Privacy Act requirements.

[00:22:41] Speaker 05:
And at no point did they make any response to that nor have they raised any arguments in their briefing.

[00:22:48] Speaker 05:
And just to clarify another statement made by opposing counsel, we did not make that offer because we thought that it fell within the gambit of title three it does not, for all of the reasons expressed in our briefing we made that offer because, as a matter of. public transparency and accountability. Oregon law allows any individual to request a public version of our voter list. That list does not include the sensitive information that the federal government, the USDOJ, has specifically requested here.

[00:23:25] Speaker 05:
If I could talk a little bit about, I was discussing before about how Oregon actually manages our list. It's the OCVR, Oregon Computerized Voter Registration Platform. It has all of the individual voter information that is required by HAVA.

[00:23:42] Speaker 05:
It is stored in individual voter files. And as part of that platform, we do generate that statewide publicly available voter list. We do that every month. But the system is not designed to generate the type of voter list that the U.S. DOJ seeks here, specifically with that sensitive individual.

[00:24:03] Speaker 04:
Are you saying not designed to or cannot?

[00:24:08] Speaker 05:
we would have to change the platform in order to generate it.

[00:24:12] Speaker 04:
So you could, it's just not currently designed to do it?

[00:24:16] Speaker 05:
Presumably, our IT could figure that out.

[00:24:20] Speaker 04:
And is that a defense, in your view, to the request that the system isn't currently designed?

[00:24:27] Speaker 05:
It is not a defense it is further exemplification of why this request does not fall within the plain text of title three twenty seven section twenty seven oh one specifically refers to records and papers that come into the possession of a state election and this this doesn't count as a record or paper.

[00:24:46] Speaker 05:
The specific voter list that they have requested to include the individual sensitive information of every individual voter for the millions of registered voters in Oregon, that list, the form that they have requested does not exist.

[00:25:01] Speaker 04:
But the data exists.

[00:25:02] Speaker 05:
The data exists.

[00:25:03] Speaker 04:
But that doesn't come within the ambit of the statute?

[00:25:08] Speaker 05:
In our view, data is not a record or paper.

[00:25:10] Speaker 04:
So, like, for example...

[00:25:15] Speaker 04:
Data on a cell phone would be similarly not.

[00:25:21] Speaker 04:
So, for example, it wouldn't be covered by the Fourth Amendment's protection of papers and effects because the data on a cell phone isn't a paper or effect.

[00:25:32] Speaker 05:
Well, Your Honor, we're construing the terms of a statute, and to construe the terms of a statute, you look at the text and context of the statute in history, in light of the history in which it was enacted.

[00:25:43] Speaker 04:
So like the Fourth Amendment, you know, this didn't exist then, so data on a cell phone wouldn't be protected.

[00:25:49] Speaker 05:
I don't believe that the USDOJ has—I don't understand the— the federal government to have raised a Fourth Amendment claim. No, I understand. I'm just asking.

[00:25:59] Speaker 01:
Can I ask a question?

[00:26:02] Speaker 01:
Oh, sorry. Go ahead, Judge Mendoza.

[00:26:05] Speaker 02:
Just a quick question. Let's say that we agree with some of your reasons, not all of it, but on the different grounds, basis and purpose, separately records and papers, separately privacy. What grounds should we decide this case on?

[00:26:23] Speaker 05:
In our view, Your Honor, they all apply. And so they all are individually and collectively.

[00:26:30] Speaker 02:
I think, Counsel, that's like when a parent is asked, which kid do you like most? They say all of them, each one of them. But I'm asking you a specific question. Which one do you really believe? Like all parents, maybe there's a preference for one.

[00:26:49] Speaker 02:
Which of those arguments would you decide is the case if you were us right now?

[00:26:58] Speaker 05:
I will say that the district court in this case was disposed of the case on basis and purpose. And I think that this court can affirm the district court's judgment of dismissal on that basis based on the district court's well-reasoned decision. I think that the other textual arguments that we have raised all provide additional justification for why this court can affirm. Because the type of statewide voter list unredacted with all the personal information is not a paper or record that comes into the possession of a state official that gets retained and preserved.

[00:27:39] Speaker 02:
Sure, they can turn around in the next week, write a new basis on purpose, and then it's done. It's over. Here's a new basis on purpose consistent with what CRA requires. It's over. You're done.

[00:27:51] Speaker 05:
Oh, I disagree, Your Honor, because there's been no allegation that there's been any type of voter discrimination here. What they want is to, the asserted purpose is to assess the state's compliance with NVRA and HAVA list maintenance.

[00:28:08] Speaker 04:
So, counsel, let me understand. Is your argument, for example... That let's say in a different hypothetical circumstance somebody were arguing a hypothetical state let's pick one Alabama is racially discriminating and they demand records to see if Alabama is racially discriminating and it's a.

[00:28:32] Speaker 04:
allowing people to vote, and the statute is the same as it is, and Alabama makes the decision that it's just not going to keep anything other than in a data form, because then it won't qualify as a paper, even if what's in data on the computers totally reflects racially discriminatory acts toward voters. Your view would be, that if it's only data that's constantly changing on the Alabama state computers that the U.S. couldn't get it under the same kind of request it made to you?

[00:29:05] Speaker 04:
Absolutely not, Your Honor.

[00:29:07] Speaker 05:
The plain text of the statute, particularly interpreted in light of its context and history, requires the preservation of individual voter registration documents.

[00:29:18] Speaker 04:
But I'm saying if their system was exactly the same as yours and the government's record... was the government's record request was the same. It wouldn't, what Alabama, regardless of what was reflected there, what Alabama had wouldn't qualify as a record, et cetera, under the statute.

[00:29:37] Speaker 05:
No, Your Honor. To reiterate, the plain text of the statute encompasses it requires a state to retain and preserve individual voter registration documents. Our system does that. And if they thought that we were discriminating with respect to our voter registration practices and they had a base, they stated that purpose and they had a factual basis for it, they would be able to access that data. Excuse me, those records.

[00:30:03] Speaker 04:
But I thought it's not records.

[00:30:07] Speaker 04:
I thought it's not records or papers.

[00:30:12] Speaker 05:
So just to clarify, we're talking about a couple things.

[00:30:15] Speaker 04:
I'm saying if their request was exactly the same.

[00:30:19] Speaker 04:
As in this case, Your Honor? Yes. They wanted everything because they thought it would help them decide if there was racial discrimination.

[00:30:27] Speaker 04:
The position would still be, well, no, not a record, not a paper for the same reason. It's not one here.

[00:30:33] Speaker 05:
I just want to make sure I'm being, so I don't know if you're referring to voter registration cards, which is- I'm referring to a request for everything they requested from you. An unredacted statewide voter list? Yes.

[00:30:47] Speaker 04:
No, that would not be permissible under the- Okay, so they couldn't get that from Alabama in my hypothetical.

[00:30:52] Speaker 05:
That's correct, Your Honor. All right.

[00:30:54] Speaker 01:
So can you just, well, let me ask one question. The government had previously moved to consolidate this case with the California case. Do you oppose our panel consolidating or not?

[00:31:07] Speaker 05:
We view that completely within the court's discretion, Your Honor.

[00:31:10] Speaker 01:
Okay. All right. Can you please, I think I may have misunderstood. So you keep separate voter files, and then from that you collate the information for the SVRL? Is that correct?

[00:31:25] Speaker 05:
Generally, yes. So the short answer is yes. The longer answer is our voter role platform has voter files for each individual voter, which includes that voter's extensive personal sensitive information on each individual voter. And what our platform is designed to do, as required by and consistent with Oregon law, it generates a statewide voter list that includes frankly, a lot of individual information on each voter, but not the sensitive data that the USDOJ seeks here, such as the birth day and month and the driver's license number of each individual voter.

[00:32:10] Speaker 01:
Or the Social Security number.

[00:32:11] Speaker 05:
Correct.

[00:32:11] Speaker 01:
You're saying that is not contained in your sort of master voter list.

[00:32:16] Speaker 05:
Correct.

[00:32:17] Speaker 01:
I see.

[00:32:18] Speaker 05:
Um, and, and to be, I just want to reiterate, HAVA doesn't require that. HAVA does not require that we be able to generate that type of sensitive voter list. It requires the maintenance of a statewide voter role. And we do that. We use HAVA funds to, um, help run our platform.

[00:32:38] Speaker 01:
So to create, to actually possess the list that the government is correct, correct, uh, requesting, you'd have to create that from scratch. That's not something that you even keep wholesale.

[00:32:48] Speaker 00:
Okay.

[00:32:48] Speaker 01:
So then what do you update? Do you update the individual voter files? If someone dives, if someone changes an address, I don't know Oregon's law on whether a felony conviction eliminates the right to vote. So is that the document that gets updated? The voter, the individual file, the individual voter file.

[00:33:07] Speaker 05:
Correct.

[00:33:07] Speaker 01:
Okay. And what information are you using to update the individual voter files?

[00:33:13] Speaker 05:
Uh, I don't know what you mean by what information.

[00:33:15] Speaker 01:
Where are your sources of information, that someone has died, that someone has a new social, I mean, whatever the update. Well, you tell me what kind of updating ever happens on the individual voter files.

[00:33:26] Speaker 05:
Yeah, so consistent with HAVA, the local election officials are the ones who actually go in and change each individual's voter file.

[00:33:34] Speaker 01:
And that's a city or county official? Correct. Okay. Correct.

[00:33:37] Speaker 05:
And so that's if somebody registers to vote for the first time or they notify a change of address.

[00:33:44] Speaker 05:
I believe that there is, consistent with HAVA's requirements, there's some cross, there's some interface with our DMV records. So if somebody notifies that they have a change of address there, that then gets put into the system. And to the extent that USDOJ was concerned that we weren't doing our list maintenance requirements properly under the NVRA, because the NVRA is the one that requires that we run a program that reasonably updates the voter's information based on death or change of address.

[00:34:21] Speaker 05:
So to the extent that they thought we weren't doing that properly, the NVRA has public inspection requirements and rights.

[00:34:30] Speaker 01:
Right. So any, let's say there's a memo that says we want to discriminate against X people. You would get that through the NVRA, right? You wouldn't get that through Title III, which is about the specific individual voter poll tax document, registration application, whatnot. There's a different avenue for that, or even perhaps civil litigation, correct? That's another way to get that information. Exactly. Okay, but let me understand on this situation, how many fields, if you know roughly, are there in an individual voter file versus this This master list that you create with no driver's license, social security number, date of birth, any of that private personal identifying information, how many fields are on those two separate buckets of files?

[00:35:12] Speaker 05:
So in terms of what's in the public list, I can point you to the Oregon statute that lists what's included, and that's ORS 247.945. And I believe that there's around, if I had to guess, I think there's about... 10 or so maybe 10 or 12 fields um i can't give you an answer on the the confidential voter on the voter file because frankly your honor i've never seen it i'm not i've spoken with secretary of state folks who have access to it it's so confidential i don't i don't have access to and that's what the city and county officials update anyway versus the state primarily okay um how many uh

[00:35:56] Speaker 01:
Election officials would have access to the voter list that you generate. It sounds like you generate that once a month without any of the private personal identifying information. How many people have access? How many election officials have access to it?

[00:36:09] Speaker 05:
Anyone in the public can access it. You just have to request it and pay $500. And that's required by Oregon statute.

[00:36:16] Speaker 01:
I see.

[00:36:18] Speaker 05:
In terms of, we have 36 counties, and you didn't really ask this, but there are 36 counties, and those are the number of election officials who would go in and alter the, update each voter file.

[00:36:31] Speaker 01:
And does Oregon have voters submit any information online that automatically gets populated, I guess, into their individual voter file. Is that right? Yes.

[00:36:41] Speaker 05:
And so there are two ways to register to vote. You have the physical card, and that is provided by ORS 247.012, Oregon statute. And I think HAVA as well also requires that you – can digitally register to vote, that generates a digital version of the voter card that is then saved into the voter file.

[00:37:09] Speaker 05:
And those are the types of records and papers that, in our view, fall within the ambit of Title III.

[00:37:16] Speaker 01:
So you would be able to get – the department would be able to get that individual voter file, even though it's digitized. They'll be able to get that through Title III.

[00:37:25] Speaker 05:
Yes, and that voter registration card is, in our view, precisely what Title III was enacted to allow – to require state officials to retain and preserve and to allow the USDOJ to access.

[00:37:37] Speaker 04:
All right. Thank you, counsel. We'll hear from your friend.

[00:37:48] Speaker 00:
Good morning, your honors, and may it please the court. Abba Khanna on behalf of the interveners. Your Honors, we are here today because DOJ says it wants to inspect and audit states' compliance with list maintenance obligations imposed by HAVA and imposed by the NVRA. But there is no dispute that neither the NVRA nor HAVA, the two statutes that actually govern list maintenance, provide DOJ with the type of unfettered access that it seeks here. DOJ itself realized this months ago when it abandoned its NVRA and HAVA claims in this case.

[00:38:21] Speaker 00:
So DOJ claims instead that it's now found a workaround in a 65-year-old civil rights law that is not mentioned anywhere in the actual list maintenance statutes and that has never been interpreted to apply to these unredacted statewide voter lists. And this result of DOJ's attempt to really kind of cram the CRA into the NVRA and HAVA really results in this fundamental mismatch on a number of essential bases when it comes to the text, the purpose, the bases for all of the statutory requirements.

[00:38:56] Speaker 00:
And we can talk about just some of those examples, some of which your honors have already touched upon. For instance, the CRA expressly prohibits anyone from altering a record covered by the statute. HAVA, on the other hand, requires election officials to continually and regularly alter and update the statewide voter file, adding new voters, removing voters, changing voter addresses. Now, a common sense and harmonious reading of these two statutes would say that the CRA does not extend to that voter file.

[00:39:30] Speaker 00:
But under DOJ's contrary reading, CRA obligations to essentially freeze in place would directly clash with HAVA obligations, obligations to constantly amend, putting the election officials in a catch-22 with criminal enforcement, the threat of criminal enforcement as hanging in the balance.

[00:39:49] Speaker 04:
Now, Your Honor, I don't really understand that argument. I don't understand why election officials couldn't appropriately comply by having regular updating and why regular updating but maintaining a master current list would somehow violate either statute.

[00:40:10] Speaker 00:
Because the CRA specifically says that the documents that are covered must be preserved. They must be retained for a period of 22 months, for a fixed period. Whereas the HAVA that applies to these actual statewide voter lists requires not preservation, but constant updating. So as this court recently just said last month in Nago, the idea that even NVRA would cover the statewide voter list doesn't make any sense because it would require states to essentially preserve every single iteration of this constantly evolving database.

[00:40:45] Speaker 00:
And I don't think even my friends on the other side suggested that's actually required here. What they're asking for is a snapshot in time.

[00:40:50] Speaker 04:
Well, I think your friends on the other side are saying that that's not a requirement.

[00:40:55] Speaker 00:
They're saying that it's okay that you can – our friends on the other side are basically saying that, yeah, we understand there's some tension. But maybe alter in the CRA doesn't actually mean alter. Maybe it means something more than various.

[00:41:10] Speaker 04:
I read what they say just a little more logically as to in the real world what you have to do.

[00:41:20] Speaker 04:
But the portion that you cited in that case says what it says, although I think it's probably dictum. But the statutes are different. But go ahead.

[00:41:30] Speaker 00:
I agree with Your Honor that in the real world, you do have to comply with HAVA. And that's why the real world just does not match up onto the imagined world in which the CRA would cover these documents. Your Honor, I asked my colleague here about what about the hypothetical Alabama documents of concern about racial discrimination? And what if they had issued the exact same request to Alabama?

[00:41:52] Speaker 04:
The exact same request, yes.

[00:41:53] Speaker 00:
And I would say, Your Honor, that the Civil Rights Act does not attach to the statewide voter file. It does not match on. That does not mean that there's not some relevant other documents that Alabama might have. It also does not mean that that's not somehow attainable through an actual civil suit. If there's a CRA violation that requires an actual lawsuit under Section 101.

[00:42:17] Speaker 04:
I understand that's what your friend said, that even if these allegedly bad things were arguably going on, they couldn't use the same route they used here.

[00:42:28] Speaker 00:
Exactly, Your Honor, that the CRA's very limited pre-enforcement preservation requirement does not seek to import all relevant possible evidence that could come in in the course of an actual lawsuit. The CRA also imposes a temporal limit. The CRA requires that states to retain and preserve documents for a fixed period of 22 months.

[00:42:46] Speaker 04:
But it doesn't say they have to destroy it after 22 months. No, but it says... It doesn't say they have to keep it.

[00:42:52] Speaker 04:
They can't keep it longer. It just says that's a minimum.

[00:42:55] Speaker 00:
Absolutely. So the CRA specifically refers to a defined period for specific documents that are in a fixed format for a fixed amount of time. That makes sense in the context of a document that itself is fixed. It simply does not map onto a document that itself is constantly changing day by day, hour by hour. That temporal requirement simply does not match on. And again, as this Ninth Circuit, this Court just said last month in Nago, that applying that temporal requirement, a similar temporal requirement in the NVRA, simply does not attach to something that's constantly... But they were talking about a statute dealing with disclosure to the public, not disclosure to the Department of Justice.

[00:43:35] Speaker 00:
That is true for the broader context of NAGO, but in that particular portion, they were talking about the illogical mismatch between applying this temporal document hold or temporal time period that was not in NVRA to a constantly evolving statewide voter list. And in fact, Your Honor, Nago, which has just decided, really does further inform this case on a number of bases, not just on the temporal mismatch, but Nago also undercuts what my friend on the other side suggested, which is that they somehow need this personal information in order to enforce the NVRA.

[00:44:08] Speaker 00:
Nago specifically said, no, you don't. Nago also said that it's not the NVRA, but actually HAVA that governs the statewide voter lists. And because HAVA doesn't require disclosure, neither does the NVRA. As the court said, we declined to read the NVRA to provide a right for the public to access statewide voter lists when Congress itself chose not to establish that statute when specifically addressing statewide voter lists. The public. to the public, but it was the exact same provision that the DOJ relied upon in its initial letter, in its subsequent letter, and its complaint before the court, that same public access provision, in order to seek access to the documents that it seeks here.

[00:44:50] Speaker 00:
Now, the inference here is even stronger, because while NVRA is...

[00:44:56] Speaker 00:
ANAGO decided that the NVRA is too removed from HAVA to allow that kind of disclosure, the CRA is even farther removed and even farther afield here. I see I've used my time, Your Honor, if I can. Thank you. Thank you.

[00:45:14] Speaker 03:
May it please the court. I'd first like to quick address Judge Mendoza's question that he asked to opposing counsel there as to if he had to choose which section of the arguments that were made by opposing counsel, which one would they pick. I know he couldn't pick one. I would really appreciate it if you could pick whether or not the list itself is available under Title III of the Civil Rights Act.

[00:45:38] Speaker 03:
elements of the case that the district court ruled on here in terms of the basis and purpose that were stated in the letter. Those are things we can fix. Those are things we can comply with court orders on. But if there's going to be a stop sign for us from this court to get the list at all under any of the basis there, whether it would help our future going forward in terms of trying to assess whether or not states are complying with the HAVA.

[00:46:06] Speaker 03:
Speaking of complying with the HAVA, I'm not sure if my friend on the other side intended to do this, but the HAVA explicitly makes clear that the HAVA list, the state voter registration file, has to be a, quote, single system. It cannot be multiple systems, one that is front-facing to the public that has the ability to download, and one's the super secret one that no one can ever look at, not even people who are defending it in court. So HAVA explicitly says a single system, and they have it, and it includes the name and registration information of each individual.

[00:46:47] Speaker 01:
It includes the computerized... But how does that single, interactive, computerized, how does that meet the requirements of 2701?

[00:47:00] Speaker 01:
Records and papers which come into his possession relating to any application, registration, payment of poll tax, or other act requisite to voting in such election.

[00:47:11] Speaker 03:
How does it meet that requirement? It's the prime example of a document that's related to the registration of an individual, right? Just two weeks ago, the state of Oregon used that list or parts of that list in order to send out $3 million ballots by mail-in for their primary processes. That's where they get the individuals who get the ballots, right, from that registration list.

[00:47:38] Speaker 01:
But you would agree that the relating to any application, that is defining records and papers which come into his possession, correct?

[00:47:47] Speaker 03:
Yeah, all records and papers coming to possession that relate to Any application, any registration, any payment of poll tax. I think it's a very difficult argument to make that the state voter registration list, which is the key document here in determining who gets to vote, is not a record related to registration.

[00:48:10] Speaker 01:
But under your reading of related... That means every election official would have to preserve and retain every single internal document ever relating to anything regarding an election, right? So how would they ever even be able to, for example, edit an internal policy document?

[00:48:28] Speaker 01:
Because where's the limit if that's it?

[00:48:31] Speaker 03:
Okay, so there's two important aspects to that, one of which opposing counsel brought up when she was using the term alter very broadly here.

[00:48:42] Speaker 03:
The statute doesn't include alter as a sole word, right? Section 702 says that the state election official must willfully steal, destroy, conceal, mutilate, or alter. All of these terms mean the same thing, right? They demonstrate a mens rea on behalf of the state election official to destroy or change these documents in a way that might limit the ability of the United States to conduct an investigation. These are the same tactics that were being used back in 1960.

[00:49:12] Speaker 01:
Well, he said that they're destroying it every month, right? They're generating a brand new list every month. They're not retaining that list for 22 months as required by Title 22. So for me, if I am deleting that file, I am willfully destroying that file.

[00:49:29] Speaker 03:
Not exactly, Your Honor, because they are creating a new one, right? They are replicating the file.

[00:49:34] Speaker 01:
But what are they doing with the old one?

[00:49:36] Speaker 03:
Right.

[00:49:36] Speaker 01:
Aren't they destroying the old one?

[00:49:39] Speaker 03:
I don't know. You'd have to ask them about where that goes.

[00:49:41] Speaker 01:
Are you saying they have to save every single iteration?

[00:49:45] Speaker 03:
No, Your Honor.

[00:49:46] Speaker 01:
Why not? Why isn't any deletion, any update...

[00:49:51] Speaker 01:
a distraction.

[00:49:51] Speaker 03:
Because it doesn't include the mens rea that's required under that list of words there that include stealing, destroying, continuing, mutilating, or altering. The purpose of that section of the statute was to stop the type of hijinks that were occurring, like saying, oh, we don't have that list.

[00:50:10] Speaker 01:
Are you relying on Fisher v. U.S. for your argument on this?

[00:50:14] Speaker 03:
No, I mean, that comes directly from Lind, Your Honor. Because I think Fisher's

[00:50:20] Speaker 01:
It says whoever corruptly alters, destroys, mutilates, or conceals a record or document with the intent to impair the object's integrity or availability. I mean, we don't have corruptly here. We don't have that intent to impair here. So if I don't agree with you on LEND either, then what is your support to say there's no statutory conflict here When HAVA is saying you are obligated to update and Title III is saying you will fully destroy that and you're going to be put in prison for not more than one year.

[00:50:56] Speaker 03:
Because Title III, with all due respect, Your Honor, just simply doesn't say that. It doesn't impute the... Well, I'm just going to read it.

[00:51:05] Speaker 01:
Any person who willfully steals, destroys, conceals, mutilates, or alters any record or paper required by Section 207.1...

[00:51:13] Speaker 01:
shall be fined not more than $1,000 or in prison not more than one year or both.

[00:51:17] Speaker 01:
So I'm reading the text.

[00:51:20] Speaker 03:
I understand that. But I think that the word willfully does a lot of work there, as well as the other words included there before. The obvious intent here was to address the type of tactics that are used by states or localities in order to hide the evidence of any type of wrongdoing they may have done in the statute. Like, for example, having a public list that doesn't somehow connect to a private list that no one can access.

[00:51:50] Speaker 03:
That's the exact type of thing that these courts are dealing with back in 1960 that we're dealing with here from the state of Oregon.

[00:51:56] Speaker 01:
And in 1960, they were dealing with particularized wrongdoing. They were having a specific pre-existing articulated enforcement concern, right? They were not saying, give me, 365 million people's worth of voting lists. Let me request it from all 50 states. Let me sue 30 states. That wasn't quite what was happening in 1960, correct? There were particularized wrongdoing concerns, right? And they were requesting the documents...

[00:52:27] Speaker 01:
of the voters who may have been denied the right to vote versus this list, who is everyone who is registered to vote successfully, right? So to me, the purpose seems not quite the same.

[00:52:41] Speaker 03:
No, Your Honor. They were not requesting any of the records from the voters, right? All the requests were being made to the state and local election officials, and those included documents.

[00:52:52] Speaker 01:
But it was the voters' application, the voters' registration, the voters' payment of poll tax.

[00:52:57] Speaker 03:
It also included roles that state probate judges were that were created, included receipts that were created by the judges to demonstrate the payment of poll tax. Those records that were self-generated were included in all of those early cases as well. This is nothing new.

[00:53:14] Speaker 04:
All right. We thank counsel for their arguments. The case just argued is submitted.