[00:00:02] Speaker 03:
We'll turn now to Vote America versus Schwab, 23-3100.

[00:00:12] Speaker 04:
Presiding Judge Hartz and may it please the court, I am Brad Schrozman representing the State of Kansas Defendants in this matter.

[00:00:20] Speaker 04:
The thrust of this case is whether a third party like the Voter Participation Center has a First Amendment right to pre-fill someone else's advanced ballot application.

[00:00:32] Speaker 04:
And, assuming that such a First Amendment right does exist, what sort of deference is owed to the state?

[00:00:39] Speaker 04:
The answer to that first question, in our judgment, is a synthetic no.

[00:00:45] Speaker 04:
A third party prefilling an application of someone else entails neither speech nor expressive conduct.

[00:00:52] Speaker 04:
Any message comes from the cover letter in this case, not from the application itself.

[00:00:58] Speaker 04:
There is nothing expressive

[00:01:00] Speaker 04:
about inserting a voter's name and address on the voter's own application.

[00:01:06] Speaker 04:
Not only is the cover letter separable from the application, but there is nothing intrinsic on the application itself that would necessitate its partial pre-population in order to convey VPC's message.

[00:01:18] Speaker 02:
When you say separable, they come in the same envelope for a reason, right?

[00:01:23] Speaker 04:
Yes, it's a part of the mailing package where they include the cover letter and then inside of it is an application as well as an envelope that has its pre-addressed and prepaid.

[00:01:35] Speaker 02:
And the reason is because you have to look at each of the submissions inside the envelope to understand what's going on.

[00:01:44] Speaker 04:
Well, that is correct.

[00:01:46] Speaker 04:
But that also makes it clear in the explanatory cover letter, that's what tells the voter why it's included and their message.

[00:01:57] Speaker 04:
The statute here doesn't actually include, it doesn't prohibit them from including a blank application.

[00:02:04] Speaker 04:
It doesn't include them from explaining anything that they want to, from sending it anything they want to.

[00:02:12] Speaker 04:
But any expressive conduct would come from

[00:02:16] Speaker 04:
the cover letter itself explaining why that material is included in the overall package.

[00:02:22] Speaker 02:
What if the package didn't have it pre-filled but had a separate sheet with little sticky labels and one was named and it said peel this off and put it in blank number six?

[00:02:35] Speaker 02:
Would that be okay?

[00:02:37] Speaker 04:
In the

[00:02:41] Speaker 04:
application itself is not pre-filled, then I don't believe that that would violate the statute.

[00:02:47] Speaker 02:
So this is all coming down to whether or not it's already typed in or whether you have a separate label that you peel off and try to put into the right space and may screw up and cause all kinds of problems by putting it in the wrong space?

[00:03:00] Speaker 04:
The reason this statute came about, Your Honor, is that in the 2020 election, there were a significant number of

[00:03:08] Speaker 04:
errors that were included in the pre-populated applications that VPC sent out.

[00:03:13] Speaker 04:
We had approximately 15,000 to 25,000 that were sent to voters that were erroneous.

[00:03:19] Speaker 04:
5% of the applications that they sent out included an erroneous middle initial or name.

[00:03:25] Speaker 04:
3%, which is about 25,000 applications, 3% included suffix.

[00:03:29] Speaker 04:
And if those are sent in and it's incorrect on the application, that can disenfranchise voters.

[00:03:35] Speaker 04:
Because if any part of that application

[00:03:38] Speaker 04:
is completed incorrectly, then the county election office is required to reject the application, and the voter is not going to be able to get it.

[00:03:46] Speaker 00:
I thought before they were required to reject it, they were required to reach out to the person who sent them the erroneous information.

[00:03:56] Speaker 04:
That's correct, Your Honor.

[00:03:57] Speaker 04:
Kansas has an elaborate cure mechanism, but of course, that is a very time-consuming process for the

[00:04:04] Speaker 04:
for the county election officials.

[00:04:06] Speaker 04:
When it is sent to the voters, erroneously, it causes and did cause very significant confusion and frustration.

[00:04:13] Speaker 00:
And in certain cases, if there's just a small error, a letter left off, a Jim rather than a James, something like that, the election official is able to just disregard the error.

[00:04:28] Speaker 00:
Isn't that right?

[00:04:29] Speaker 04:
That is correct.

[00:04:30] Speaker 00:
What did the record show as to the number of those types of errors?

[00:04:34] Speaker 04:
Well, the record talked about simply what the errors that were sufficient enough to warrant an outright rejection of the application.

[00:04:48] Speaker 04:
And the VPC's expert came in, one of their witnesses came in and said that overall, nationally, they had, again, 5% of the applications that they had pre-filled.

[00:05:00] Speaker 04:
were included in an erroneous middle name or middle initial.

[00:05:03] Speaker 04:
And there's no question that an erroneous middle name or middle initial or an erroneous suffix, you know, it's saying junior when it's not a junior, senior versus, you know, the third, whatever, that that would cause a rejection of that application if it was sent in to the county election office.

[00:05:18] Speaker 03:
That would require rejection, you're saying.

[00:05:20] Speaker 03:
I'm sorry, say again.

[00:05:21] Speaker 03:
I'm a little confused.

[00:05:21] Speaker 03:
You're saying that would require rejection.

[00:05:23] Speaker 03:
Yes, that is correct.

[00:05:26] Speaker 03:
You answered Judge Carson that if it's using Jay instead of Jim, or James didn't require rejection.

[00:05:35] Speaker 04:
Does it or doesn't it?

[00:05:37] Speaker 04:
The county election officials who testified said if it is clear from the application that it is that individual.

[00:05:44] Speaker 04:
So when someone puts in James Smith and it's this address, and he's in the election records, is Jim Smith, and that will

[00:05:55] Speaker 04:
you know, if the county election official is able to discern that that in fact is that voter.

[00:05:59] Speaker 04:
But when you have individuals where it says John Q. Jones as opposed to John T. Jones, that's a different individual.

[00:06:07] Speaker 03:
So you said 5% of the ones that came in were incorrectly filled out.

[00:06:15] Speaker 03:
Do you know how many of those were rejected?

[00:06:18] Speaker 03:
Do you know how many of those were accepted on their face?

[00:06:21] Speaker 03:
Even though it wasn't filled out correctly, it didn't cause a problem because the election officials said, oh, this is clearly James Smith.

[00:06:30] Speaker 04:
So let me make a couple of things clear, Your Honor.

[00:06:32] Speaker 04:
Number one, the numbers were their numbers overall.

[00:06:35] Speaker 04:
So what they had said was that they didn't know the exact numbers in Kansas, but they didn't deny that no one knows for certain how many

[00:06:45] Speaker 04:
of that came in Kansas.

[00:06:46] Speaker 04:
But the reality is, is that we don't know for certain because we have the elaborate care mechanisms that we do have in the state.

[00:06:54] Speaker 04:
When an election official goes in, you know, a very lengthy, complex process to call up the voter, writes them and says, hey, you know, we got this.

[00:07:02] Speaker 04:
It looks like it's the wrong address or the wrong name.

[00:07:04] Speaker 04:
I mean, eventually, it may well have been here, but that was only after a very significant time frame.

[00:07:10] Speaker 03:
Does the record indicate how much time and effort was spent because of errors?

[00:07:16] Speaker 04:
Yes, there is testimony in the stipulated facts that election officials could spend as much

[00:07:24] Speaker 04:
an individual application when they had to call.

[00:07:28] Speaker 04:
I mean, it depended on what stage it was.

[00:07:30] Speaker 04:
It could be up to 30 minutes for each application that included erroneous information where they had to contact the voter.

[00:07:39] Speaker 03:
That's interesting that it could take that long.

[00:07:41] Speaker 03:
There were this many where it could have happened.

[00:07:43] Speaker 03:
Do we know if, in fact, election officials were spending considerable amounts of time caused by improperly pre-filled applications?

[00:07:54] Speaker 04:
Yes, there's testimony in the record from Andrew Howe, the Election Commissioner for Shawnee County.

[00:08:00] Speaker 04:
What did he say about the time?

[00:08:02] Speaker 04:
He said that it was an extremely time-consuming process, that he was having to deal with voters who were either confused and frustrated about the

[00:08:11] Speaker 04:
applications that they were getting that had been pre-filled, and also we talked about the amount of time that he was having to spend dealing with the curative process.

[00:08:20] Speaker 02:
So that I'm sure I understand, is the problem with the James and the Jim and so forth that the information that's pre-filled differs from the Elvis information?

[00:08:33] Speaker 02:
Yes.

[00:08:34] Speaker 02:
Okay, and so if the voter solicitation people

[00:08:39] Speaker 02:
cured that problem and went solely with Elvis, then all of what you just said goes poof.

[00:08:47] Speaker 02:
There's no problem with pre-filled at that point.

[00:08:50] Speaker 04:
There could be a problem.

[00:08:51] Speaker 04:
Number one, let's be clear that that's not what happened, that they were using an outside vendor who merged commercial information.

[00:08:56] Speaker 02:
I understand, conceded that point, but I'm asking

[00:09:01] Speaker 02:
The crisis that's being described here as far as time span and wasted and upset people and so forth, if the information prefilled matched Elvis, which is possible, that can be done, then goodbye to your argument.

[00:09:17] Speaker 02:
Goodbye what now?

[00:09:17] Speaker 02:
Well, do you have an argument at that point?

[00:09:20] Speaker 04:
Well, yeah.

[00:09:21] Speaker 04:
I mean, the state still has in order to, I mean, in the 2020 election,

[00:09:26] Speaker 04:
there was very substantial confusion and frustration and anger among the voters.

[00:09:31] Speaker 04:
And the burden on the plaintiff's conduct, I mean, in our judgment, is incidental at best.

[00:09:38] Speaker 04:
I mean, all we're talking about is the pre-filled application.

[00:09:42] Speaker 04:
And when you look at cases like O'Brien, when you look at, I mean, I think it would be Anderson Burdick anyway.

[00:09:47] Speaker 04:
But I think that this test that the Supreme Court has applied in this context

[00:09:53] Speaker 04:
It's basically a rational basis test, and that's what, as you know, the Sixth Circuit held in the recent Liechtenstein case.

[00:10:00] Speaker 03:
Let me phrase this question differently.

[00:10:04] Speaker 03:
There'd be no problem for the state if the statute said you can't file, you can't send pre-filled applications unless the pre-filled information is from Elvis.

[00:10:19] Speaker 03:
That would solve your problem.

[00:10:21] Speaker 04:
I think that would help the problem.

[00:10:23] Speaker 04:
I mean, you'd still have the issue of timing.

[00:10:25] Speaker 04:
So when, as our expert witness talked about, they were pre-printing the applications early in the year in 2020.

[00:10:33] Speaker 04:
And at that point, because Elvis is a dynamic system, it changes in real time, you would have individuals who had moved, who had changed their name, maybe a marriage or whatever.

[00:10:44] Speaker 04:
So when they were getting the applications, it was,

[00:10:47] Speaker 04:
I mean, that information had changed since the time that the pre-filled application had been printed.

[00:10:54] Speaker 04:
But yes, I will concede that if it was strictly based on that information, that would go a long way towards addressing the state's issues.

[00:11:02] Speaker 04:
That's not what occurred here, though.

[00:11:05] Speaker 03:
Also, you said filling out a form is not expensive activity.

[00:11:10] Speaker 03:
Normally, you think of anything someone writes as equivalent to speech.

[00:11:17] Speaker 03:
Do you have any authority that there's no First Amendment interest in filling out an application?

[00:11:25] Speaker 04:
I would say I would first look to the City of Austin case, where the Supreme Court made clear that merely words on a page

[00:11:32] Speaker 04:
don't make it into the First Amendment regime.

[00:11:35] Speaker 04:
And that was one of the things that the district court argues, although it's words on a page.

[00:11:40] Speaker 04:
But, I mean, the court has said that that's not enough.

[00:11:43] Speaker 04:
There needs to be, the message needs to be overwhelmingly apparent.

[00:11:48] Speaker 04:
We cited the court in Rumsfeld, even, cited the Giveny case, where the court says, look, the mere fact that it's

[00:11:55] Speaker 04:
written words doesn't mean that the First Amendment is necessarily implicated.

[00:12:00] Speaker 04:
So I think that both City of Austin and Rumsfeld and Giviney have made clear that mere writing on it does not trigger the First Amendment automatically.

[00:12:09] Speaker 04:
And that's, I think, a fundamental error that the District Court made.

[00:12:13] Speaker 04:
So I think what ultimately is what their applications were, were a matter of convenience.

[00:12:21] Speaker 04:
And we talked about in the stipulated facts

[00:12:25] Speaker 04:
the harms that came about because of these erroneous pre-filled applications.

[00:12:31] Speaker 04:
We talked about, obviously, the errors in the middle names and initials, and that was conceded.

[00:12:36] Speaker 04:
It came from VPC's own witness, which are, you know, talking 15,000 to 25,000 of them.

[00:12:41] Speaker 04:
Our expert witness talked about applications that were sent to individuals who'd been removed from the voting rolls long before the mailing packages were even sent, people who had died, people who had moved,

[00:12:55] Speaker 04:
And that caused frustration among the electorate when some of them were sent in.

[00:12:59] Speaker 04:
Tell me what problem arises because the person died.

[00:13:02] Speaker 04:
Some of those were actually sent in to the election office.

[00:13:07] Speaker 04:
Now, those individuals ultimately did not receive a ballot because the anti-fraud mechanisms kicked in.

[00:13:14] Speaker 03:
So if that was sent in, that was fraudulent.

[00:13:17] Speaker 03:
What's that?

[00:13:18] Speaker 03:
Those that were sent in died.

[00:13:21] Speaker 04:
Some were sent in and some of them, the voters, sent it in because they're saying,

[00:13:25] Speaker 04:
Wait a minute, why are we getting this?

[00:13:26] Speaker 04:
Why would you have sent this, somebody sent it to me, because the, you know, this individual has done it.

[00:13:32] Speaker 03:
But they submitted it seeking, okay, so they sent it into the election officials, but did they actually send in a request for a ballot?

[00:13:41] Speaker 04:
I don't know that there is evidence that the individuals, that someone sent in an application seeking it on behalf of a deceased person.

[00:13:48] Speaker 04:
I mean, the record doesn't say anything on that one way or the other.

[00:13:52] Speaker 02:
Are the cases that are most apt, the initiative referendum sorts of cases, someone with the clipboard, please sign, we want to ban nuclear weapons or something like that, and that's treated with strict scrutiny, right?

[00:14:06] Speaker 04:
Well, and as we said very clearly, the initiative referendum process is fundamentally different because when you're going around collecting that

[00:14:14] Speaker 04:
referendum, the writing itself constitutes, expresses speech.

[00:14:19] Speaker 04:
The voter signature, the read court and the Supreme Court said that the voter signature on the referendum expresses his view.

[00:14:26] Speaker 02:
So if your opponents were to knock on a door and say, we've got a forum here we want you to fill out, write in on line number one, John Q. Public, and write on

[00:14:39] Speaker 02:
six, check that you're mailed, then you're fine with that.

[00:14:42] Speaker 04:
That's perfectly permissible.

[00:14:44] Speaker 02:
Even if it's wrong, even if it doesn't match Elvis.

[00:14:46] Speaker 04:
Well, the only thing that is impermissible under this statute is the mailing, unsolicited mailing of pre-filled applications.

[00:14:54] Speaker 02:
But you're not curing the problem.

[00:14:56] Speaker 02:
If you're allowing that, and who knows, they don't know what Elvis has, whether it has a suffix or a middle initial or something, and they just write their name, then it's going to be rejected.

[00:15:05] Speaker 04:
Well, if a voter, if the VPC were to go to a voter and say,

[00:15:10] Speaker 04:
Hey, fill this in."

[00:15:11] Speaker 04:
And they said, don't worry about what your name is, but write this.

[00:15:14] Speaker 02:
No, no, no.

[00:15:16] Speaker 02:
Nobody's saying anything like that.

[00:15:18] Speaker 02:
I'm saying Jim and James.

[00:15:20] Speaker 02:
And you're saying it's okay to knock on the door and say, write James Smith in there.

[00:15:25] Speaker 02:
And unbeknownst to everybody, Elvis has it as Jim Smith.

[00:15:29] Speaker 02:
It's going to get rejected.

[00:15:30] Speaker 04:
Well, those are issues where the county election office, though, is going to be able to tell who the identity was.

[00:15:36] Speaker 04:
We're talking about the problem here.

[00:15:38] Speaker 04:
generally become erroneous middle names and middle initials.

[00:15:42] Speaker 02:
There's no question.

[00:15:42] Speaker 02:
We made these ships in the night, so I don't want to chew up any more of your time.

[00:15:46] Speaker ?:
OK.

[00:15:47] Speaker 04:
I see I'm out of time anyway.

[00:15:49] Speaker 04:
Thank you.

[00:15:49] Speaker 01:
Thank you very much, Your Honor.

[00:15:52] Speaker 01:
Good morning, Your Honors.

[00:15:53] Speaker 01:
May it please the court, Jonathan Youngwood, for the appellant.

[00:15:58] Speaker 01:
Your Honors, I want to focus on what the district court found

[00:16:03] Speaker 01:
regarding much of what was the subject of discussion with counsel, which is that the record suggests on balance that personalizing advanced mail ballot applications actually facilitates orderly and efficient election administration.

[00:16:19] Speaker 01:
She reached that conclusion based on a very full record.

[00:16:23] Speaker 01:
In front of her were affidavits and depositions from five election officials, two

[00:16:30] Speaker 01:
The record suggests that on balance, personalizing advanced mail ballot applications actually facilitates orderly and efficient election administration.

[00:16:48] Speaker 03:
And what was that based on?

[00:16:50] Speaker 03:
What was the evidence?

[00:16:52] Speaker 03:
We heard the evidence that

[00:16:54] Speaker 03:
Miss errors in this.

[00:16:59] Speaker 01:
Among other things, Your Honor, the testimony of these election officials, which are summarized in the stipulation facts in the appendix at pages 611, largely through 613 or 614.

[00:17:19] Speaker 01:
Included within that is testimony from Mr. Howell, the counsel referred to,

[00:17:24] Speaker 01:
At paragraph 140, Mr. Howell is asked how much time his staff spent curing applications that contained pre-filled information.

[00:17:34] Speaker 01:
And he said he doesn't actually count the difference there.

[00:17:38] Speaker 01:
And this, again, was their best witness for them.

[00:17:41] Speaker 01:
He was asked in paragraph 141 whether it was his opinion that voters become even more confused and frustrated when the application contained pre-filled information.

[00:17:59] Speaker 01:
was what all the concern was.

[00:18:01] Speaker 01:
In fact, if you had a statute.

[00:18:03] Speaker 03:
Is that the same witness who said it took a lot of time, a lot of their time, to deal with applications that had been misfilled out in advance?

[00:18:14] Speaker 01:
Yes, but he did not differentiate.

[00:18:16] Speaker 01:
How do you reconcile?

[00:18:16] Speaker 01:
Well, witnesses can be inconsistent, and I submit that's why

[00:18:24] Speaker 01:
Well, there is no testimony that they specifically counted the time.

[00:18:30] Speaker 01:
There is no testimony... He gives some estimates that obviously if you get a mis-built-out ballot, it will take more time to process than a completely...

[00:18:44] Speaker 03:
You're both talking about the same witness and saying very different things, and I want to see if there's any way to reconcile.

[00:18:52] Speaker 03:
I understood from opposing counsel that this witness said it took a significant amount of time, maybe it was a number, maybe not, to deal with the applications that had erroneous pre-filled

[00:19:15] Speaker 03:
Did he not say that?

[00:19:17] Speaker 01:
He does say that, Your Honor.

[00:19:19] Speaker 01:
But he also does not have any specific count.

[00:19:22] Speaker 01:
And I think what's significant, he draws no distinction, nor could one, I think, between a mis-filled pre-printed application and a mis-filled handwritten or typed by the individual.

[00:19:35] Speaker 01:
There is no record evidence, nor do I think there's any evidence whatsoever, as to whether pre-filled applications

[00:19:45] Speaker 01:
cause more likelihood of error than handwritten applications.

[00:19:49] Speaker 03:
I thought you said 5% of the pre-filled applications.

[00:19:52] Speaker 01:
What was that?

[00:19:54] Speaker 01:
That 5% is in the record, Your Honor.

[00:19:57] Speaker 01:
That's not what the 5% is.

[00:20:00] Speaker 01:
So 5% was an estimate that our client gave as his deposition of nationally, an estimate nationally, of mailers they sent how many had some form of error.

[00:20:15] Speaker 01:
The defendant's expert in this case, taking a sample of the more than 500,000 mailers sent to Kansas citizens, came up with the conclusion that in Kansas it was 3%.

[00:20:31] Speaker 01:
But that's 3% of the mailed, not 3% of the received.

[00:20:36] Speaker 01:
And so I would submit, for example, if the error was in the address, it probably was never received and then never sent to the county.

[00:20:48] Speaker 01:
errors as a percentage, or anything frankly other than anecdotal, of how many errors were sent in from a pre-filled form sent by our client.

[00:21:02] Speaker 01:
Is the whole form filled out?

[00:21:04] Speaker 01:
No, Your Honor, because that's not available.

[00:21:08] Speaker 01:
Do you have to sign them?

[00:21:10] Speaker 01:
You do, Your Honor.

[00:21:11] Speaker 01:
And what might be helpful, if you haven't seen it, the form itself is a sample.

[00:21:16] Speaker 01:
is in the appendix starting at page 674.

[00:21:21] Speaker 01:
And what I'd like to do maybe briefly is to get to that question just to walk through what's in it, because as your honors have noted, it's a package.

[00:21:30] Speaker 01:
So page 674 is the cover.

[00:21:33] Speaker 01:
And for this example, it's to a Jane Smith at 123 Main Street at Anytown, Kansas.

[00:21:39] Speaker 01:
It's just a sample.

[00:21:41] Speaker 01:
Ms.

[00:21:42] Speaker 01:
Smith gets a letter.

[00:21:43] Speaker 01:
This is at page 675 saying, Dear Jane, county election officials in Kansas encourage voters to use mail ballots in upcoming elections.

[00:21:53] Speaker 01:
That's true.

[00:21:54] Speaker 01:
I don't think that Kansas is a wonderful state in that way.

[00:21:58] Speaker 01:
I've sent you the enclosed advanced ballot by mail application already filled out with your name and address.

[00:22:05] Speaker 01:
The letter goes on.

[00:22:06] Speaker 01:
And again, there's no dispute here that this letter is speech.

[00:22:10] Speaker 01:
And it's not just speech, but it's core political speech entitled to the highest form of protection in the First Amendment.

[00:22:17] Speaker 01:
At the bottom of the letter, there's a PS.

[00:22:20] Speaker 01:
We have already filled in your name and address on the enclosed form.

[00:22:23] Speaker 01:
Please take a minute to complete this form, sign and date it, and place the form in the pre-addressed postage page envelope.

[00:22:32] Speaker 02:
And nothing so far as barred by the statute.

[00:22:35] Speaker 02:
It's only the application where you can insert.

[00:22:39] Speaker 01:
I think if the statute is to be enforced in full, I can't write a letter saying, please find a ballot I've filled out in part four.

[00:22:51] Speaker 02:
The statute says no portion of such application shall be completed prior to mailing such application.

[00:22:58] Speaker 01:
So I could, I suppose, send this letter and then include a blank.

[00:23:01] Speaker 01:
The reader would be confused by me saying it, but that is fine.

[00:23:08] Speaker 01:
writing this and they don't challenge the letter.

[00:23:10] Speaker 00:
So, regrettably, because of our connectivity here, I can't get the appendix up.

[00:23:19] Speaker 00:
But what does the recipient have to fill out?

[00:23:23] Speaker 01:
So, page 676, when you have the opportunity.

[00:23:30] Speaker 01:
The recipient

[00:23:31] Speaker 01:
would need to, so on this is the name and the address, nothing else, and the counter.

[00:23:40] Speaker 01:
The recipient needs to give their own driver's license number or non-driver's identification card number.

[00:23:47] Speaker 01:
That's not available to our clients through the services.

[00:23:50] Speaker 01:
They have to fill that out.

[00:23:52] Speaker 01:
They need to fill out under item four the address to where the mail ballot should be sent.

[00:23:58] Speaker 01:
So somebody's filling, you gotta fill that out

[00:24:03] Speaker 01:
and they need to sign it, date it, put their phone number.

[00:24:09] Speaker 02:
How about the date of the election?

[00:24:10] Speaker 02:
That looks like that's built in.

[00:24:12] Speaker 01:
That is the date, yes it is, right in paragraph five for the signature.

[00:24:20] Speaker 01:
Okay and that's pre-filled you say?

[00:24:22] Speaker 01:
The date of the election to which you're requesting the ballot.

[00:24:24] Speaker 02:
And that helps, right?

[00:24:26] Speaker 02:
Because most people don't know the day of the election.

[00:24:28] Speaker 02:
I would think you probably

[00:24:32] Speaker 01:
giving you a common sense, I would think that if this information... Go ahead, Your Honor.

[00:24:38] Speaker 03:
I want to make sure I understand.

[00:24:39] Speaker 03:
So that is part... So it's the name and address plus the date of the election are pre-filled out.

[00:24:45] Speaker 03:
That is correct.

[00:24:45] Speaker 03:
Okay.

[00:24:46] Speaker 03:
And the county.

[00:24:47] Speaker 01:
And the county.

[00:24:48] Speaker 02:
And nothing else.

[00:24:49] Speaker 02:
And yet there are significant things that need to be filled in by the applicant, the driver's license number, the address to send the ballot.

[00:24:58] Speaker 02:
Does it really make any difference?

[00:25:00] Speaker 02:
I guess I'm wondering.

[00:25:01] Speaker 02:
Here we are in federal court.

[00:25:03] Speaker 02:
But aren't most people going to know their name and fill it in?

[00:25:08] Speaker 01:
I think, Your Honor, it gets to why my client does this.

[00:25:11] Speaker 01:
And they do this because their message is voting by mail is easy, safe, and you can do it.

[00:25:21] Speaker 01:
And we've gone to the trouble ourselves of populating this.

[00:25:25] Speaker 01:
That's a strength.

[00:25:29] Speaker 01:
and the magnitude of the speech.

[00:25:32] Speaker 01:
And it goes to, frankly, under this court's precedence and this Supreme Court's precedence, it's up to the speaker to decide how their speech can be most effective.

[00:25:43] Speaker 01:
And the reason our client does is they think it conveys a stronger message by doing this.

[00:25:47] Speaker 02:
All right.

[00:25:48] Speaker 02:
One thing that I'm trying to get to the bottom of, and that I think I know the answer to,

[00:25:55] Speaker 02:
commotion about, it's creating all these problems, there are mismatches and so forth.

[00:26:01] Speaker 02:
You have two possibilities.

[00:26:03] Speaker 02:
Number one, you don't pre-fill and you get a certain number that the middle initial is wrong or something, or you do pre-fill and that happens, or you don't pre-fill.

[00:26:15] Speaker 02:
There's still going to be mismatches with Elvis, right?

[00:26:18] Speaker 02:
Someone's going to write Jim instead of Jane.

[00:26:22] Speaker 01:
The errors here came from a vendor who didn't purely pull Elvis.

[00:26:28] Speaker 01:
You could, we don't have that statute here.

[00:26:31] Speaker 02:
But if Elvis is the be-all end-all, it's the match that you have to have to avoid a problem, the person filling in the application doesn't know how their name is on Elvis.

[00:26:42] Speaker 02:
Absolutely, sir.

[00:26:42] Speaker 02:
And so that person can inadvertently make a mistake that causes rejection by using a Jim or James, just like the pre-filled can.

[00:26:52] Speaker 01:
uh... correct your honor and if the pre-filled came from Elvis there would actually be a lower risk of error than a higher risk.

[00:26:58] Speaker 02:
Can you do better your organizations, which is to say it comes from commercial and it gets contaminated with that and time lags, people have died, moods, so forth, why shouldn't you be held to something that requires Elvis within a certain amount of time?

[00:27:14] Speaker 01:
Your Honor, that would be a different law and I'd have to have different arguments if I wanted to challenge it.

[00:27:20] Speaker 01:
If you go to, and it goes to

[00:27:22] Speaker 01:
under strict scrutiny, what's the least restrictive means of satisfying an overriding state interest?

[00:27:29] Speaker 01:
I question, I understand preventing election fraud is definitely an overriding state interest, but there is absolutely, absolutely no evidence that this statute was directed to that.

[00:27:38] Speaker 01:
And listening to the prior argument, it bears mentioning that it's in the stipulated facts at 138.

[00:27:44] Speaker 01:
There's no legislative history here supporting any of the reasons, but if your concern is

[00:27:51] Speaker 01:
There are many less restrictive means.

[00:27:54] Speaker 01:
For example, if your concern is duplicates, you could have passed a law that says, like, my client sent these people up to five times.

[00:28:03] Speaker 01:
You could say one.

[00:28:05] Speaker 01:
I don't think that's a law we would support, but I have to come up with a different challenge to it.

[00:28:10] Speaker 01:
You could say it has to come from Elvis, and it has to come from Elvis within a certain number of weeks or months, because where the Elvis will differ from reality,

[00:28:20] Speaker 01:
is, I don't know, somebody gets married and he or she changes their name.

[00:28:25] Speaker 01:
So you're saying there are least restrictive ways of doing this?

[00:28:28] Speaker 01:
This statute fails that test.

[00:28:31] Speaker 01:
If they're concerned with duplicates, voter confusion, inaccuracies, I can't come up with all of them, but there are significantly less restrictive means.

[00:28:41] Speaker 02:
And we know why that matters with heightened scrutiny.

[00:28:44] Speaker 02:
Does it matter for Anderson Burdick?

[00:28:46] Speaker 01:
So we don't think Anderson Burdick applies.

[00:28:49] Speaker 01:
It's not content neutral.

[00:28:51] Speaker 01:
This is not a content neutral statute.

[00:28:53] Speaker 01:
Would it matter for Anderson Burdick?

[00:28:55] Speaker 01:
Well, under Anderson Burdick, if it did, it would go to whether or not this imposes a substantial burden.

[00:29:04] Speaker 01:
And we would argue that even under Anderson Burdick, even under Anderson Burdick, you would get there that this statute isn't properly crafted.

[00:29:13] Speaker 01:
And you didn't ask, but even under intermediate scrutiny, which we do not believe you get to, obviously to a somewhat lesser degree, it's a substantial state interest rather than an overriding.

[00:29:24] Speaker 01:
And the words are different, and I agree, lesser than strict scrutiny.

[00:29:28] Speaker 01:
But this statute would not survive intermediate scrutiny, and it would not survive an Anderson-Burick analysis.

[00:29:36] Speaker 01:
Let me pursue some of this.

[00:29:38] Speaker 03:
You're satisfied with the choice?

[00:29:40] Speaker 03:
Satisfied or not?

[00:29:44] Speaker 03:
I'm curious, what is being expressed?

[00:29:50] Speaker 03:
What is the expressed message by filling out the form?

[00:29:56] Speaker 03:
And why isn't a ban on filling out the form not just a time, place, and manner restriction?

[00:30:03] Speaker 03:
You can say anything you want.

[00:30:05] Speaker 03:
Whatever you're trying to express here, you just can't do it on that form.

[00:30:09] Speaker 01:
So, Your Honor, on time, place, and manner, which, in part, I think was what?

[00:30:15] Speaker 01:
Go to the expressive first.

[00:30:18] Speaker 01:
Sure, Your Honor.

[00:30:21] Speaker 01:
Give me one second.

[00:30:23] Speaker 01:
So first of all, Your Honor, the form is not just part of the package.

[00:30:29] Speaker 01:
We would say it's the centerpiece of the package.

[00:30:32] Speaker 01:
And so as the briefs argue, it's integrated.

[00:30:35] Speaker 01:
They've conceded the letters for political speech.

[00:30:38] Speaker 01:
The letter is tied to it.

[00:30:39] Speaker 03:
Say we were to think that the only thing banned by the statute is filling out the form.

[00:30:45] Speaker 03:
What expression are you losing?

[00:30:49] Speaker 01:
Let's say all we did was send the form.

[00:30:51] Speaker 01:
No letter.

[00:30:52] Speaker 01:
Because I think with the letter, the letter carries it, whether or not.

[00:30:56] Speaker 01:
Well, I'd rather you answer my question if you want to answer the question.

[00:31:00] Speaker 01:
So what is expressive about the form is it says to the voter about filling

[00:31:09] Speaker 01:
Filling out the form.

[00:31:12] Speaker 01:
This is how easy it is to fill it out.

[00:31:14] Speaker 01:
We've started the process for you.

[00:31:17] Speaker 01:
That's one.

[00:31:17] Speaker 01:
Two, one would assume that it cost us some amount of resources to fill it out.

[00:31:24] Speaker 01:
And we are saying we care so much about voting by mail that we've taken a step for you in that direction by taking the care.

[00:31:33] Speaker 01:
I recognize if it's an error, there's less care.

[00:31:36] Speaker 01:
But by taking the care to pre-populate it.

[00:31:39] Speaker 03:
That sounds like an expression, but it's expressive conduct.

[00:31:44] Speaker 03:
By doing this, we're expressing something.

[00:31:47] Speaker 03:
It's not that filling out the form itself is the expression, but by doing this, we've expressed something.

[00:31:54] Speaker 01:
That is correct, but that falls within this circuit's Christ-Pressman decision.

[00:31:59] Speaker 01:
We think it falls within the Supreme Court's Clark test.

[00:32:03] Speaker 01:
So what's the Clark test?

[00:32:05] Speaker 01:
Is it intended to be commutative?

[00:32:07] Speaker 01:
That's not disputed.

[00:32:08] Speaker 01:
That's accepted by the other side.

[00:32:10] Speaker 01:
This was intended by our client subjectively to be communicative.

[00:32:14] Speaker 01:
And in context, would reasonably be understood by the viewer to be communicative.

[00:32:20] Speaker 01:
So the question, which the district court, appearing all the evidence ruled on, is getting a packet where the form is filled out versus not filled out.

[00:32:29] Speaker 01:
Will that say something to somebody?

[00:32:31] Speaker 01:
But then the question is,

[00:32:34] Speaker 03:
Isn't this restriction essentially a time, place, and manner restriction on that expression?

[00:32:41] Speaker 03:
It is not.

[00:32:43] Speaker 03:
Picketing is expressive conduct, but you can't do it at certain places at certain times.

[00:32:47] Speaker 01:
So council cited the city of Austin.

[00:32:51] Speaker 01:
Again, court will look at it itself.

[00:32:52] Speaker 01:
That's a clear time, place, and manager way to location.

[00:32:56] Speaker 01:
Location of speech, not whether there was speech.

[00:32:59] Speaker 01:
And then the Rumsfeld or

[00:33:02] Speaker 03:
I'm being simple-minded.

[00:33:05] Speaker 03:
It says you can do this anywhere except on these documents.

[00:33:09] Speaker 03:
Why is that not a limitation on time, place, and manner?

[00:33:14] Speaker 01:
Because the act of putting them on the documents is the speech or the expression.

[00:33:20] Speaker 01:
We're saying fill out a form.

[00:33:21] Speaker 01:
We believe you should fill it out.

[00:33:23] Speaker 01:
We've started it for you.

[00:33:27] Speaker 01:
Your Honor, it differs from the Rumfeld case that they've cited extensively.

[00:33:34] Speaker 01:
And that was a case involving the military recruiters on campus.

[00:33:38] Speaker 01:
And what does it mean if you don't have a military recruiter?

[00:33:41] Speaker 01:
And do you need to have a statement with it?

[00:33:43] Speaker 01:
And the court there, cited by this district court, but by the Supreme Court, says when you're asking a military recruiter to be off campus,

[00:33:57] Speaker 01:
to tell people, so I have to take that out.

[00:33:58] Speaker 01:
When somebody sees that a military recruiter is off campus, what does that mean?

[00:34:02] Speaker 01:
Well, as the Supreme Court held, it could mean that your rooms were full and there wasn't room for them.

[00:34:08] Speaker 01:
It could mean that the recruiter chose to be off campus for some reason, or it could mean that the institution didn't want them there.

[00:34:17] Speaker 01:
And so without an additive statement, we don't know what it meant.

[00:34:21] Speaker 01:
This is, go ahead,

[00:34:35] Speaker 03:
Well, a minute and a half.

[00:34:41] Speaker 04:
Just a few points quickly.

[00:34:42] Speaker 04:
The first is that I would urge this court to read the Sixth Circuit's recent decision in Lichtenstein, which in that case, the Tennessee had prohibited the distribution of any advanced absentee ballot applications, whether they were pre-filled or not.

[00:34:56] Speaker 04:
And the Sixth Circuit upheld that under the Oberlin intermediate scrutiny.

[00:35:00] Speaker 04:
But I would also simply point out, Your Honors,

[00:35:03] Speaker 04:
They themselves, when we talked about, you know, gee, what are the harms here?

[00:35:06] Speaker 04:
They themselves, the VPC, was sufficiently concerned about the erroneous applications that they stopped in pre-filling them on two of the five mailings that they sent out to voters.

[00:35:19] Speaker 04:
So, I mean, that is incredibly powerful evidence that the state's harms here were not made up.

[00:35:24] Speaker 04:
and that the legislature had very solid reasons for engaging in this activity.

[00:35:28] Speaker 03:
Well, their concern might not be the same as yours.

[00:35:31] Speaker 03:
Yours is the burden on the election officials and theirs is wasting people's time.

[00:35:36] Speaker 04:
Even the voters were so concerned, Your Honor, that they included a Q&A

[00:35:41] Speaker 04:
in their call center to address voters calling in saying, hey, I was sent a neuromus application.

[00:35:50] Speaker 04:
I was sent an application for someone else.

[00:35:52] Speaker 04:
What should I do?

[00:35:53] Speaker 04:
And they encourage them to request a different application.

[00:35:56] Speaker 04:
So these are not made-up harms at all.

[00:35:59] Speaker 04:
And finally, I would just note that the standard on it.

[00:36:02] Speaker 04:
So I think that even if you find that there is some expressive activity, we win on the intermediate scrutiny or under subvertic, whichever one you choose.

[00:36:11] Speaker 04:
But I would also simply point out that under the Rumsfeld standard, the expression, the communicative conduct has to be overwhelmingly apparent.

[00:36:20] Speaker 04:
At the end of the day here, what they've done is simply a matter of convenience.

[00:36:23] Speaker 03:
Thank you.

[00:36:24] Speaker 04:
Thank you very much, Your Honors.

[00:36:26] Speaker 03:
Very interesting argument.

[00:36:35] Speaker 03:
Counselor excused.

[00:36:37] Speaker 03:
Case is submitted.