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dates number 24-7050 et al.

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Stacia Hall et al.

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at balance versus District of Columbia Board of Elections.

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Mr. Hayek for the balance.

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Mr. Leach for the appellee.

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Hey, Mr. Hayek.

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You may proceed when you're ready.

[00:00:17] Speaker 01:
Your honor.

[00:00:19] Speaker 01:
May it please the court, Chris Hayek for plaintiff's appellants.

[00:00:21] Speaker 01:
I would like to begin by briefly discussing the stakes of this case.

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It might not seem a big deal if a few hundred aliens vote in DC and maybe never affect the outcome of an election.

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But if there is nothing wrong constitutionally with this law, there would be nothing wrong if, say, California-led aliens, including illegal aliens, vote in statewide elections, even federal elections.

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States, after all, have the right to determine voter qualifications in federal elections, though they can't do it in a way that violates constitutional rights.

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Whether good or bad, such an action by California would certainly be consequential.

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And the scenario is not terribly far-fetched.

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If this court says there's no constitutional right violated by letting aliens vote, they might try it.

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Is this case based on the election of November 5, 2024?

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Is this case what, Your Honor?

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Based on the election of November 5, 2024.

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It's based on that.

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It's also based on upcoming elections, even at harm.

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The question on the merits here is simply this.

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Do the people, meaning US citizens, and the Supreme Court has rightly equated the two in this context, have a constitutional right to govern themselves?

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It seems axiomatic that they do, and the Supreme Court has stated this axiom in Holdings.

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The right to citizen self-government is logically implied by the nature and presuppositions of the Constitution.

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By its nature, the Constitution is a blueprint for a democratic republic, and thus presupposes the basic theory of democratic self-rule.

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For the Supreme Court, obvious consequences of this basic theory are that citizens comprise the self in self-government, that aliens by definition are not part of the self-governing body politic, that the people have the right to be governed by their citizen peers,

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And that the right to govern, and thus the right to vote, because that's how the people govern themselves, is reserved to citizens.

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I wonder if you might focus on the threshold on the standing point that the district court, that it was just positive in the district court, the theory for standing.

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Yes.

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On standing, there is clearly an injury here to every plaintiff because the right to citizen self-government has been violated.

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And each plaintiff's power of citizen self-government has been reduced, if only fractionally, at this time.

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So one thing that would be helpful, it's not entirely clear to me whether the harm from the distinct citizen self-government theory is any different from

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the vote dilution harm.

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In your, I guess it was in the fly brief, you talked about a harm of having to vote alongside non-citizens.

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Right, that is a violation of the right to vote in an election in which only citizens vote.

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Is that an associational claim or is it just, because one could, for example, if one thought that the vote dilution was

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a harm, and there are questions about that.

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But if it were, then that harm would presumably support standing to raise the claim of citizen self-government.

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But I was taking you to be also suggesting some other harm, injury, and fact as a basis for standing.

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Right.

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The violation of the right to citizen self-government here

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travel or proceeds through vote dilution.

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It's the same thing in the sense that your vote is, your power of citizen self-government is diluted because citizens share the votes.

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So it does, you put it nicely, it proceeds through.

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So that, so for purposes of standing, we're looking at how to vote dilution.

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theory.

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And typically when Supreme Court or Courts of Appeals have recognized vote dilution, they've required a point of comparison and that the district court here said, you know, everybody who's a voter has equal votes.

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So it's unlike

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gerrymandering or malapportionment where you can point across a line and say, my vote's worth less.

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And so your point of comparison for your vote dilution theory is?

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Is that it's not every voter in DC who's injured by it.

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It is only citizen voters.

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So the point of comparison, it's the votes of citizens are diluted compared to what?

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To their former share of the electorate.

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OK, so the point of comparison is the qualified voter pool before the law that you're telling.

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That's right.

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So it's a temporal comparison rather than a geographic.

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Yes.

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That whole discussion is on the merits, though, correct?

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Which discussion?

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The discussion you just had with Judge Pillard.

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That was about standing, though I was addressing the merits previously.

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So yeah, I was asking about standing and I took your answer to be that the harm is, you know, they're challenging the law and they have a basis to challenge it because compared to the situation without the law that they claim is unlawful, claim on the merits is unlawful, their current voting power is diluted.

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And do we have a case in which that kind of before and after as opposed to here and there is the point of comparison?

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The case cited in our brief about the non-resident voters voting in a city, non-resident property owners, that was decided in favor of the plaintiffs, even though it was a rational basis test that was applied because being a member of a- Well, the Michelle case seems, the language and the opinion seems directly on point.

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Our decision in Michelle.

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Oh, Mikel, yes.

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You certainly have that.

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I mean, that shows that it's not... What happened there is that each individual state voter's right to vote for a House of Representatives of 435 voting members was reduced equally.

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But they all had standing because they were all injured.

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But there were other voters in the country.

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The voters in D.C.

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had their votes

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expanded.

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They got to vote for a voting representative.

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Two standing questions in the case.

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One was the congressman, which Vanderjacht settled, and the other was the individual voters.

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Yes.

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That's why the case is quite analogous to this one.

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And the court held that the individual voters had standing in that case.

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Yes.

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Because their vote was being diluted.

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Yes, your honor.

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And it's very similar to this case.

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And it shows what the law is in this circuit, as opposed to, say, the Fourth Circuit.

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And then how do you distinguish Dautry versus Kurder, which was the case of ours, upon which the district court principally relied?

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I would distinguish it as there, the plaintiffs failed to show that their vote was even diluted.

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They said it might be diluted, but it was too speculative.

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You didn't know where these people who had a return were going to be living and whether they lived in plaintiff's districts and whether they would actually lose any voting share in any actual election.

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And the district court said, well, I'm not relying on the speculativeness part of the reasoning.

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I'm just relying on the rejection of vote dilution theory in that case.

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Well, I think the district court quoted the case right.

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It said that not every claim of vote dilution states a claim for an injury.

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And that's true.

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I mean, they claim vote dilution, but they didn't show it.

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So there's a lot of cases that claim vote dilution in which courts have said no standing.

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Like the bunch of the voter fraud cases from the 2020 election, Bognet, Wood, Maryland election integrity.

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How do you distinguish the

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assertions of vote dilution as a ground for standing in those cases.

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Well, I would just one way to distinguish it is that those some of those cases like the Fourth Circuit one that was that the defendant put in its supplemental authority is

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should have been dismissed for failure to state a claim on the merits, because there is no right to have a perfect election, and that's what they were claiming.

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But for purposes of standing, would we put ourselves in conflict with the standing analyses?

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Well, I think in a way, Your Honor, it could have been dismissed on standing, but for a different reason, because the right claim is not legally cognizable.

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The right claim, the correct claim?

[00:10:18] Speaker 01:
Right, right.

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Because there was actual injury, even if very small.

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Their vote share was reduced by these unlawful votes.

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But that injury, in fact, is not legally cognizable.

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Because if the court recognized such rights, democracy would grind to a halt.

[00:10:39] Speaker 02:
Sounds a little bad.

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More policy argument than a... I mean, you couldn't have... Right, right.

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You couldn't have a, you know, perfect election or you couldn't have any elections.

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No elections, perfect.

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Well, is it... Once the election is conducted, I mean, there they weren't challenging as you are facially a statute.

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they're challenging what they perceive to be failure to enforce or the Supreme Court of, was it the Pennsylvania case, Supreme Court's decision, they said that should have been the state legislature.

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So in each of those cases, it's sort of a claim, yeah, that dilution is mixed in there, but that there should have been enforcement where there wasn't.

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So it does seem to verge more over into

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a citizen's concern that the law is not being applied.

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So more of the general grievance.

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Right.

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Is that part of your argument or not?

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Well, there's I think so.

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There's a they're alleging an illegality.

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They should have enforced it better.

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Shouldn't have allowed these illegal votes to be cast.

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But they don't have a right to

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enforcement of the law.

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They're not injured by the enforcement of the law because they don't have a right to a perfect election.

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I was just going to say what cases do you rely on specifically for the right to citizen self-government?

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The main one is Foley versus Connolly.

[00:12:22] Speaker 02:
Foley seems quite contrary to your position because it talks about

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it's permissive for New York to limit state troopers to citizenship.

[00:12:32] Speaker 01:
And in fact, it's a limited category of jobs and... Well, the reason that these statements about citizen self-government and the rights of governance reserved to citizens and so forth are holdings is that the court then goes on to say that the practical consequence of these principles is that these laws don't offend the Equal Protection Clause.

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And that's true.

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That's all the purpose that the court put to those principles in that case.

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But the principles that are used to decide the case to reach its judgment are still holdings of the court.

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On your merits argument, is your substantive due process claim and your complaint the same as the claim you've developed more in your appellate brief about the constitutional right to citizen self-government?

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Yes.

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I think the substantive due process claim is I did not concentrate on in the briefs here.

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It's because it relies on right being deeply rooted and relies on history a lot.

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But there's other ways for citizen self-government.

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I mean, I take it that you're making this argument because in support of your position that where we'd reach the merits, that strict scrutiny applies rather than rational basis review.

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That's what's at stake there.

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No.

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Well, I don't think you do tier scrutiny for a violation of a right like citizen self-government.

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That's what I'm saying.

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So if you're trying to establish that right because

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Because then if it's up or down.

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It's fundamental right, and then it becomes strictly scrutiny.

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But isn't the theoretical route to recognition of citizen self-government precisely the analysis provided by substantive due process?

[00:14:23] Speaker 01:
No, because it's an unenumerated right that's not protected by implication in the due process clause.

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But it is a logical consequence of the Constitution.

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So you're positing a separate category of unenumerated rights that we don't analyze through the substantive due process.

[00:14:41] Speaker 01:
Exactly, like the right to privacy, Your Honor.

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That was big until recently, at least.

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I thought that was analyzed through substantive due process.

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I think it came out of a number from emanations from various parts of the Constitution, including the Ninth Amendment.

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And the Ninth Amendment says that the existence of

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rights, you know, of rights enumerated, the enumeration of rights and protected by the Constitution in the Constitution should not be construed to deny or disparage other rights that may be retained by the people.

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And I would say other rights that if they're real at all are protected by the Constitution.

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The ninth amendment seems to indicate that there may well be other rights that follow from the Constitution.

[00:15:30] Speaker 02:
And you're saying that we don't discern those through

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the substantive due process analysis of whether it's deeply rooted.

[00:15:37] Speaker 01:
Those are some.

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And the Supreme Court has stated how you were supposed to determine those rights.

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But other rights that might fall from the structure of the Constitution, they might be presupposed by the Constitution because it's a blueprint for a democratic public.

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They would presumably easily meet the substantive due process analysis, wouldn't they?

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It seems like that's very much framed to embrace just such rights.

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I think it's deeply rooted in the nation's history because it is presupposed by the Constitution, and that the exceptions to it historically have been, well, especially early on, say Massachusetts didn't have an explicit citizenship requirement for voting.

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But John Adams, who wrote the Constitution, wrote in the Constitution that in this Massachusetts Constitution,

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using the term citizens and people interchangeably in the preamble.

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And it never says non-citizens can vote.

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It simply says that to vote you have to have lived here a certain number of years and so forth.

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And at that time, nobody knew there was no authoritative statement of who was the United States citizen.

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I mean, on July 2nd, 1776, when the Declaration of Independence was, or rather, when independence was voted on, everybody in that room and outside in the country became an American citizen, except for people, I guess, who were just visiting, who were British soldiers on American soil.

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And it remained unclear just who had become citizens.

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for quite some time.

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So it was impossible for John Adams to put in a citizenship requirement, a US citizenship requirement, into the Constitution.

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You also argue that the DC law imposes a facial classification based on citizenship or nationality.

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Where is that in the text of the law?

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I don't entirely follow that line of argument.

[00:17:46] Speaker 01:
Well, they dropped the citizenship requirements.

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So that's taking away a line.

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Right.

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And that means that non-citizens can vote.

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Right.

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And that means that logically.

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Under equal protection, we're looking at a classification.

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Right.

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And we're trying to decide, is this classification unconstitutional?

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And this law doesn't classify.

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Well, it classifies on national origin or on citizenship.

[00:18:16] Speaker 02:
Well, it decides not to.

[00:18:18] Speaker 01:
Well, if this law.

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Right.

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But if this law is is it, you know, you take the text into this law, it follows necessarily that noncitizens can vote.

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Yeah.

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So it's citizens.

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So there's no distinction between the ways that they're treated.

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Right.

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And I would say that that's on its face.

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I mean, just what it means is that non-citizens can vote.

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They might as well have said so, because it does mean that, because it's impossible for that to be the law and for non-citizens not to be able to vote.

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So the men at the Virginia Military Institute have standing and an equal protection claim subject to heightened scrutiny to argue that the women should not be part of the student body on that theory.

[00:19:13] Speaker 01:
Because men are a protected class.

[00:19:16] Speaker 01:
Yep.

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So the only thing that protects that, prevents that kind of lawsuit, is the idea that they dropped a distinction rather than making a classification.

[00:19:29] Speaker 02:
That's the argument that I wanted you to respond to, because that's what DC argues that it did here.

[00:19:35] Speaker 01:
Right.

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I think that even if they have a case,

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Maybe they do have a case.

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It's just that it meets strict scrutiny to allow women.

[00:19:53] Speaker 01:
It serves a compelling government interest.

[00:19:56] Speaker 02:
If we were to decide that this statute is subject to rationality review rather than scrutiny, what's your strongest argument that you nonetheless prevail on the merits?

[00:20:09] Speaker 01:
It's, there's no interest the district could claim that can overcome a competing or countervailing compelling interest in preserving citizen self-government and the sovereignty of the people.

[00:20:21] Speaker 02:
But the presumption of the question, just hypothetically, is if we didn't accept your fundamental right to citizen self-government argument,

[00:20:33] Speaker 02:
then you can't smuggle it back in by saying, well, that's a compelling interest.

[00:20:38] Speaker 02:
So if we say that's not a compelling interest, that's not a fundamental right.

[00:20:43] Speaker 02:
But nonetheless, what I'm looking for is any argument, and this may not be your case.

[00:20:49] Speaker 02:
I didn't see this in the brief, but that it's irrational or doesn't even meet the minimal level of scrutiny.

[00:20:56] Speaker 01:
Well, it's irrational to, there's no argument for why illegal aliens are permitted.

[00:21:04] Speaker 01:
And the whole thing is irrational.

[00:21:06] Speaker 02:
They do make an argument that they say people are working here, paying taxes, sending their children to school.

[00:21:12] Speaker 02:
They're in a practical sense, part of the community, that there's an interest in having people be engaged and feel that they belong.

[00:21:22] Speaker 02:
And what I'm looking for is if we assume rationality review applies, what's your response to why that's not a rational basis?

[00:21:31] Speaker 01:
Well, I would go back to saying that even if there's no right to citizen self-government, the Supreme Court didn't hold that there was.

[00:21:39] Speaker 01:
It certainly held that there was a powerful interest in citizen self-government.

[00:21:51] Speaker 02:
All right.

[00:21:54] Speaker 02:
Thank you.

[00:22:18] Speaker 00:
May it please the court, Brian Leach for the Board of Elections.

[00:22:23] Speaker 00:
I'd like to pick up Judge Pillard with a question that you asked of my colleague about this point of comparison idea.

[00:22:30] Speaker 00:
And they pointed to, as my friend acknowledged, a temporal comparison before and after.

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Now, the cases in which vote dilution has been recognized as a cognizable injury for Article III purposes involve situations where there is a comparison in geographic space or comparison between groups within the same

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election, they do not recognize this idea of a comparison across time.

[00:22:55] Speaker 00:
Part of the reason for that, and this Judge Randolph goes to the point you made, you brought up Michelle.

[00:22:59] Speaker 00:
My friend didn't acknowledge Michelle, but I think that that case is quite distinguishable because there you have a derivative injury.

[00:23:07] Speaker 00:
tied directly to a fixed legislative body with a set number of members at 435 by law.

[00:23:14] Speaker 00:
So there's a much easier path to finding a particularized injury to each individual voter and each individual congressperson.

[00:23:22] Speaker 00:
Whereas when you're dealing with a changing, ever-changing, diffuse general electorate,

[00:23:27] Speaker 00:
The point of comparison itself is essentially a moving target.

[00:23:30] Speaker 00:
There's no way to determine whose aggregate share of voting power or, as my friend put it, the aggregate share of the electorate any group might be experiencing.

[00:23:43] Speaker 00:
In that sense, along with the point that my friend acknowledges that every vote is still getting equal weight, this would be a quite anomalous theory of vote dilution when every vote is getting equal weight.

[00:23:53] Speaker 00:
And the concept of vote dilution is, by definition, unequal weighing of votes.

[00:23:58] Speaker 03:
But Mr. Lee, go ahead.

[00:24:00] Speaker 03:
I was just going to say, was there any, after testing the results of the election, that non-citizen votes actually affected the outcome of the election?

[00:24:11] Speaker 00:
I know how many, the board has kept track of how many non-citizens voted last election.

[00:24:16] Speaker 00:
I believe it was 480.

[00:24:17] Speaker 02:
Do you have an updated registration number?

[00:24:23] Speaker 00:
I believe it's 900.

[00:24:24] Speaker 00:
I actually do have the numbers here.

[00:24:29] Speaker 00:
980 citizens as of January, non-citizens as of January 2025 are registered.

[00:24:34] Speaker 00:
How many of them were illegal aliens?

[00:24:36] Speaker 00:
I don't know the number on that, Judge Randolph, and the reason I don't is because the council made a reasonable judgment that it would be unnecessary for purposes of the district's goal with this law, which was to expand access to democracy at the local level to make distinctions based on federal immigration status.

[00:24:55] Speaker 00:
It's also considerably easier for the board to administer when they don't have to sort through all the different types of federal immigration statuses.

[00:25:04] Speaker 00:
And so an under rational basis review, those are entirely proper judgments for the council to make.

[00:25:11] Speaker 00:
But yeah, so I don't know the answer to that.

[00:25:13] Speaker 00:
But I would acknowledge as well that my friends are bringing a facial challenge.

[00:25:16] Speaker 05:
You don't know it.

[00:25:16] Speaker 05:
Does anybody in the district or the Board of Elections know it?

[00:25:21] Speaker 00:
I don't know, Your Honor.

[00:25:22] Speaker 00:
I apologize that I don't.

[00:25:24] Speaker 00:
But part of that is because the law by its terms is not drawing distinctions.

[00:25:29] Speaker 00:
among non-citizens based on their federal immigration status.

[00:25:32] Speaker 00:
And my friends are bringing a facial challenge to the statute.

[00:25:35] Speaker 00:
So they have to show it's unconstitutional in all of its applications, not just as to potentially legal immigrants, but as to people who are lawful permanent residents, people with lawful feces.

[00:25:47] Speaker 00:
They haven't made any sort of showing like that on any of their claims on the merits.

[00:25:51] Speaker 02:
You pointed out that the plaintiffs allege that they're registered, but they don't allege that they have or intend to vote.

[00:26:01] Speaker 02:
I guess the question for you is, why is it necessary that they intend to vote to support their standing on a vote dilution theory?

[00:26:13] Speaker 02:
Can we infer that?

[00:26:16] Speaker 02:
number of protesting non-voters that are registered, you know, something that gives enough weight to their votes.

[00:26:26] Speaker 00:
Well, notably, my friends have not argued that you should infer an intent to vote.

[00:26:30] Speaker 00:
What they've attempted to do is submit additional avid Davids attached to their reply brief and drop a footnote in the reply brief asserting new theories or new allegations about intent.

[00:26:41] Speaker 00:
They claim that their vote was diluted.

[00:26:45] Speaker 05:
Now,

[00:26:46] Speaker 05:
That doesn't imply or suggest that absolutely states they vote.

[00:26:51] Speaker 05:
I mean, how can you have a vote that's diluted or evaporates without voting?

[00:27:00] Speaker 05:
I mean, it necessarily follows from the allegations in the complaint, it seems to me.

[00:27:05] Speaker 05:
or they've made a sufficient allegation of voting.

[00:27:10] Speaker 00:
I think it has to be more than just an allegation of intent, or even implicit.

[00:27:15] Speaker 00:
It has to be a concrete plan, as Lujan teaches.

[00:27:17] Speaker 00:
It's not enough to just say, I intend to vote at some point in the future, even if they had said that.

[00:27:22] Speaker 00:
I think it had to be something a bit more, maybe a specific election.

[00:27:25] Speaker 00:
Like what?

[00:27:26] Speaker 05:
Give me an example.

[00:27:27] Speaker 00:
I think some of the allegations they put on their new affidavit, which are stated in the present tense as of January 25,

[00:27:34] Speaker 00:
They're not stated in terms of what they intended at the time they filed suit.

[00:27:37] Speaker 05:
The allegations in the declarations are about voting in the past.

[00:27:43] Speaker 05:
There are allegations.

[00:27:44] Speaker 05:
Yes.

[00:27:45] Speaker 05:
But there are some before the statute was even passed.

[00:27:50] Speaker 05:
Yes.

[00:27:50] Speaker 05:
So I guess what you're saying is if you voted in the past, then we can infer that you're going to vote in the future.

[00:27:57] Speaker 00:
No, Your Honor, there's more than the supplemental affidavits discuss not only past voting, but an intention to vote in the future.

[00:28:04] Speaker 02:
Now, they don't- I'm just saying it's too little too late, but that's exactly what they should have argued.

[00:28:09] Speaker 02:
This is vote dilution theory.

[00:28:10] Speaker 02:
As Ms.

[00:28:11] Speaker 02:
Hall alleges in her declaration of January this year, I have voted for candidates for local offices in 20 and 22 and 24.

[00:28:22] Speaker 02:
I intend to vote in 26.

[00:28:25] Speaker 02:
And as Mr. Heller says,

[00:28:27] Speaker 02:
I voted in every presidential election since 1980, usually including voting for the local.

[00:28:33] Speaker 02:
council members and I plan to vote in the upcoming elections.

[00:28:39] Speaker 02:
And so your position is that's exactly what would have sufficed to raise their dilution argument, but it's too late because it wasn't in the complaint.

[00:28:50] Speaker 00:
Yes, if they had alleged that in their complaint, they would have gotten past the imminence requirement.

[00:28:55] Speaker 00:
It would not have helped them when it comes to the particularization issue.

[00:28:58] Speaker 00:
It wouldn't have helped them with the generalized grievance problem, but it would at least make showing

[00:29:03] Speaker 00:
or a plausible allegation of a certainly impending injury.

[00:29:06] Speaker 05:
Now, they didn't- Where in your memorandum that you filed is the argument that they didn't sufficiently allege that they were voters?

[00:29:15] Speaker 05:
Where is it?

[00:29:17] Speaker 05:
I'm sorry?

[00:29:18] Speaker 05:
Where in the memorandum that you filed?

[00:29:23] Speaker 02:
In your briefs, have you argued that they didn't allege that they had and will vote?

[00:29:28] Speaker 00:
In the arguments in our brief, I don't know the exact page span, but it's... I'm talking about in the district court.

[00:29:37] Speaker 00:
In the district court.

[00:29:38] Speaker 00:
Oh, I'm sorry.

[00:29:38] Speaker 00:
I don't have the exact page span of what our brief was.

[00:29:42] Speaker 00:
I know we raised the argument below because they responded to it.

[00:29:45] Speaker 00:
The district court didn't address it.

[00:29:47] Speaker 00:
I can try to find it now.

[00:29:48] Speaker 00:
I apologize.

[00:29:51] Speaker 00:
But the argument I know was raised.

[00:29:57] Speaker 03:
Was there any allegation in the complaint about intending to vote or how the vote was to be diluted?

[00:30:09] Speaker 00:
There are allegations, there are legal conclusions about how the law would go about affecting the votes.

[00:30:16] Speaker 00:
There is no attempt at quantifying what the degree of vote dilution would be.

[00:30:20] Speaker 00:
There's essentially a legal assertion that the effect of the law would be to quote unquote dilute the weight of, or dilute the, I should say the voting power of certain groups or the citizens generally.

[00:30:34] Speaker 02:
So I think, I mean, in this court, I think it's the red brief at pages 22 to 23 talks about on 23 plaintiffs complain is noticeably bereft of any allegation that they intend to vote or run for office for elections.

[00:30:51] Speaker 02:
The complaint asserts

[00:30:53] Speaker 02:
Nothing about plaintiff's intentions or plans to vote doesn't even allege that they have ever voted in past district elections.

[00:31:02] Speaker 02:
And I think Judge Randolph was asking, did you raise that in the district?

[00:31:07] Speaker 00:
Yes, JA26.

[00:31:08] Speaker 00:
I have to cite it.

[00:31:09] Speaker 02:
JA26 is where you raised it.

[00:31:11] Speaker 00:
Yes, that is correct.

[00:31:14] Speaker 00:
The plate has no allegations about intending to run in future elections and a bare minimum.

[00:31:18] Speaker 00:
They need to intend to vote according to the president of the eighth and ninth circuits, which have addressed similar issues.

[00:31:24] Speaker 02:
And does does that matter?

[00:31:25] Speaker 02:
I mean, if these are Republican voters and they feel like Republicans never win in the district, why am I going to bother to go line up somewhere?

[00:31:35] Speaker 02:
Is the existence of registered voters who decide for reasons of futility not to vote, is that enough to raise a dilution theory?

[00:31:47] Speaker 00:
I'm not sure it would be, Your Honor, but I would.

[00:31:51] Speaker 02:
What if you were in a packed district and you're just, or maybe it's the inverse, in a cracked district?

[00:31:58] Speaker 02:
I have no, you know, if every 100% of people who share my interest went out and voted, we would have zero chance

[00:32:06] Speaker 02:
So I care, and I want to bring a gerrymandering claim.

[00:32:10] Speaker 02:
But really, I have to have done the futile thing and say I would do it in the future.

[00:32:17] Speaker 00:
Here's why you might not need to do that.

[00:32:19] Speaker 00:
There's two different aspects, if you will, to a racial gerrymandering claim based on cracking.

[00:32:24] Speaker 00:
One is the potential dilution of your vote.

[00:32:26] Speaker 00:
Now, if you don't intend to vote in the future, you may not have an imminent injury as to that.

[00:32:30] Speaker 00:
But the other component of it is essentially a racial segregation

[00:32:34] Speaker 00:
It's a stigma claim.

[00:32:36] Speaker 02:
But I mean, that's not true for the like, if we look at Gil, political gerrymandering, partisan gerrymandering.

[00:32:45] Speaker 00:
Um, that is, that is true, your honor.

[00:32:48] Speaker 00:
Um, but I, I would say nothing really turns on anything like that in this case, because here there's not a claim of futility.

[00:32:55] Speaker 00:
Um, but even if the, again, even if the court disagrees with us on this imminence issue, that's only one component of standing for them.

[00:33:02] Speaker 00:
And getting past that doesn't help them at all when it comes to the generalized grievance.

[00:33:07] Speaker 02:
You argue that the power of plaintiff's individual votes was not diminished in any way.

[00:33:12] Speaker 02:
Really?

[00:33:13] Speaker 02:
I mean, what about the Michelle or Michael our case where it's it is about a change to the ability of territorial representatives to appear in the Committee of the Whole in the House.

[00:33:28] Speaker 02:
It's a it's a before and after.

[00:33:31] Speaker 02:
changed.

[00:33:32] Speaker 02:
So in that respect, it's just like the change here.

[00:33:36] Speaker 02:
What the plaintiffs are challenging is a law that, relative to how it used to be, does dilute their votes.

[00:33:44] Speaker 00:
The difference is when we say there's no effect to the change of their votes, what we're acknowledging is the fact that they admit that the weights of their individual votes are exactly the same as they always were.

[00:33:55] Speaker 02:
No.

[00:33:55] Speaker 02:
They're not.

[00:33:56] Speaker 02:
Because if you're, I mean, just like with the representatives, being one of 435 versus one of 440, the vote of the representative after the inclusion of additional representatives is marginally diluted.

[00:34:14] Speaker 02:
So too, you add non-citizen voters.

[00:34:19] Speaker 02:
And after you've done that, your vote is, relatively speaking, diluted.

[00:34:25] Speaker 00:
In analyzing claims that involve expansions of the general electorate, what courts have looked to is the fact that there's a difference between the weight of your vote and your share of the electorate.

[00:34:35] Speaker 00:
Now acknowledge there are cases where the line can be fuzzy, but there is still a line, and it's one that makes sense.

[00:34:42] Speaker 00:
When you're dealing with

[00:34:44] Speaker 00:
expansions of a diffuse and ever-changing general electorate versus a change or adding of non-members to a fixed legislative body.

[00:34:53] Speaker 00:
But I do want to, if the court has any questions, I'm happy, you know, we're comfortable with the merits.

[00:34:58] Speaker 00:
If the court believes that they're standing here, we set out in our briefs why we don't think that's the case.

[00:35:03] Speaker 02:
You said that there are cases about the differentiate between expansions of a diffuse and ever-changing electorate versus those that take a particular number and add a particular number.

[00:35:15] Speaker 02:
Which cases are you thinking of?

[00:35:16] Speaker 00:
Well, Michelle is really the only one that I have found that involves the same type of fact pattern.

[00:35:22] Speaker 00:
And it's a highly unusual fact pattern tied, I think, to the unique context of legislative standing, which has a long history.

[00:35:29] Speaker 00:
There's been a lot of water under the bridge since Michelle.

[00:35:32] Speaker 00:
But in cases involving expansions of the general electorate, I mean, we have this court's decision in dowry.

[00:35:37] Speaker 00:
And I do want to take that case up, because I think my friend has missed part of it.

[00:35:42] Speaker 00:
He's right that part of it deals with concreteness and speculativeness.

[00:35:46] Speaker 00:
But there's a critical part.

[00:35:48] Speaker 00:
There's a third leg of the stool with dowry, which is particularization.

[00:35:51] Speaker 00:
And this is in the sentence in the decision leading up to footnote 27, where the court says, these plaintiffs don't have standing, in part because they haven't shown that their votes are disfavored

[00:36:02] Speaker 00:
vis-a-vis those of some other group.

[00:36:05] Speaker 00:
And it borrows that vis-a-vis language from Baker versus Carr, which is referring to unequal weighing of votes in the same election where you have a fixed geographic location, malapportioned districts, to draw this comparison.

[00:36:17] Speaker 05:
Would a voter have standing if, because of redistricting, they were placed in a

[00:36:26] Speaker 05:
a district that had 10 times more people than the one that they were in.

[00:36:31] Speaker 05:
Would they have standing then?

[00:36:33] Speaker 00:
Not if their proportion of representation corresponding to that district remains.

[00:36:40] Speaker 00:
If there's still a one person, one vote breakdown between the districts that I don't think they would have seen it because there hasn't been a dilution of their vote.

[00:36:48] Speaker 00:
Are you familiar with Westbury versus Sanders?

[00:36:51] Speaker 00:
I am only passingly familiar with that case, Your Honor.

[00:36:54] Speaker 00:
It hasn't been discussed in the briefing.

[00:36:56] Speaker 00:
I believe it involves congressional redistribution.

[00:37:01] Speaker 05:
Because their vote would be diluted by being placed in another district that was more populous, they had an injury that was sufficient for standing.

[00:37:12] Speaker 03:
Taking that to another level, if you had more non-citizens in the district,

[00:37:20] Speaker 03:
then citizens, and then we go with your logic about the votes are still counting the same in terms of the same weight.

[00:37:27] Speaker 03:
Would then that be a different scenario?

[00:37:30] Speaker 00:
So I want to take this.

[00:37:32] Speaker 00:
I apologize, Your Honor, for not knowing about Westbury.

[00:37:35] Speaker 00:
I will take your honor to word for it that that standing was found there.

[00:37:38] Speaker 05:
I do think that you don't have to take my word for it.

[00:37:40] Speaker 05:
If you take a look at Michelle, Michelle interpreted Westbury exactly the way that I put it.

[00:37:47] Speaker 00:
Okay, well, I understood.

[00:37:48] Speaker 00:
Go ahead and answer the question.

[00:37:50] Speaker 00:
Yeah, I understand your honor.

[00:37:50] Speaker 00:
I think, I may not be understanding the hypothetical of the facts of Westbury, but if you're taking one person from a roughly equally apportioned district and putting them in another district that just simply has more people is how I understood the hypothetical.

[00:38:06] Speaker 00:
I'm not quite sure that, at least at the state level, that that would be, if that's how I understand.

[00:38:12] Speaker 05:
This is from Michelle.

[00:38:14] Speaker 05:
The Supreme Court has repeatedly held in voters standing to challenge practices that are claimed to dilute their vote, such as being placed in a voting district that is significantly more populous than others.

[00:38:27] Speaker 05:
C. Westbury.

[00:38:29] Speaker 00:
Is that wrong?

[00:38:31] Speaker 00:
No, no, Your Honor, it's not wrong.

[00:38:33] Speaker 00:
But it's referring to something else.

[00:38:35] Speaker 00:
It's referring to a comparison between two different districts where

[00:38:38] Speaker 00:
They have different levels.

[00:38:41] Speaker 00:
They have the same level of representation, but different numbers of voters.

[00:38:44] Speaker 00:
And that's what creates the unequal weighing of votes, because the person in the less populated district, their vote has five or six or 10 times the power of the people in the malapportioned district.

[00:38:55] Speaker 00:
So that's an entirely different situation, because here the votes are weighing equally.

[00:38:59] Speaker 00:
But to pick up Judge Childs with your hypothetical,

[00:39:04] Speaker 00:
In that scenario, I still don't think there would be a vote dilution claim of injury on standing.

[00:39:09] Speaker 00:
There may be a different theory of standing, or there may be a different party that could bring a suit.

[00:39:14] Speaker 00:
There may be a candidate that could bring a suit.

[00:39:16] Speaker 00:
There may be a political party that could bring a suit based on either an organizational theory of diversion of resources, or a candidate could bring a standing claim potentially on a competitive injury.

[00:39:29] Speaker 00:
But for purposes of vote dilution, if the votes are being counted equally,

[00:39:33] Speaker 00:
The governing law suggests that there is no Article 3 injury in that context.

[00:39:39] Speaker 03:
So you're still hanging on that there's a generalized injury here.

[00:39:45] Speaker 03:
But you also, in response to Judge Randolph's question earlier, when we were talking about the 980 voters that you can't kind of segregate out based on who's non-citizens versus citizens,

[00:39:59] Speaker 03:
There's data points there to let us know this, that if there is some other type of injury.

[00:40:05] Speaker 00:
I think that's right.

[00:40:08] Speaker 00:
But I think that's just a limitation on the facts of this case.

[00:40:11] Speaker 00:
If I'm understanding your hypothetical correctly in the other situation, there just may be other types of claims that could be brought.

[00:40:17] Speaker 00:
But the fact that we don't know, I think, is further evidence that we don't know there's an injury that's been alleged.

[00:40:23] Speaker 00:
OK.

[00:40:23] Speaker 03:
So for right now, as to standing, you're hanging that there's no allegation in the complaint about the intending to vote or how the vote is diluted or

[00:40:35] Speaker 03:
allegations about running in future elections therefore generalized grievances standing.

[00:40:40] Speaker 00:
I might just amend that somewhat.

[00:40:43] Speaker 00:
Okay.

[00:40:43] Speaker 00:
The lack of an intent to vote in the future and the lack of an allegation about running or concrete plans to run goes to imminence.

[00:40:51] Speaker 00:
That's an independent basis.

[00:40:52] Speaker 00:
They haven't alleged an imminent injury but the injury they've alleged even if it is imminent

[00:40:57] Speaker 00:
is a generalized grievance that is not particularized to them because it's shared as they admit by every citizen in the district or by every citizen voter in the district.

[00:41:06] Speaker 03:
And then on the citizen self-government, help me out there because that term is not utilized a lot through the cases.

[00:41:17] Speaker 03:
And so is that forfeited also because not raised before the district court specifically?

[00:41:26] Speaker 00:
Our position is that that theory of standing, that argument as a theory of standing has been forfeited because it was not argued below as a theory of standing.

[00:41:34] Speaker 00:
Now, we acknowledge they alleged a cause of action with that idea.

[00:41:39] Speaker 00:
I understood, my friend, to concede that the citizen self-government theory of standing is essentially equivalent with their vote dilution theory.

[00:41:48] Speaker 00:
If that's the case,

[00:41:49] Speaker 00:
then it's probably before the court.

[00:41:51] Speaker 00:
And there's no difference between the theories of standing.

[00:41:54] Speaker 00:
They are the ones that, on appeal, that kind of reframed it.

[00:41:58] Speaker 00:
Either way, though, it still is a generalized grievance for the reasons set out in our brief and as I've explained.

[00:42:06] Speaker 00:
On the candidate standing, though.

[00:42:08] Speaker 00:
But you do consider there to be such a claim?

[00:42:11] Speaker 00:
No, no.

[00:42:12] Speaker 00:
On the merits?

[00:42:12] Speaker 00:
No.

[00:42:13] Speaker 00:
I'm sorry.

[00:42:14] Speaker 00:
I'm sorry.

[00:42:14] Speaker 00:
I misunderstood the question.

[00:42:16] Speaker 00:
No, they are asserting a right.

[00:42:18] Speaker 00:
But in order to trigger strict scrutiny, that right, they have to show it is deeply rooted in history and tradition.

[00:42:26] Speaker 00:
Here they have marshaled no historical evidence to support the idea that citizens since the founding have had this unenumerated fundamental right to exclude non-citizens from participation in local elections.

[00:42:40] Speaker 00:
They acknowledge the history cuts against them, and they simply say that

[00:42:43] Speaker 00:
They try to flip the burden back onto the district or the Board of Elections to show that the history supports non-citizen voting, but the burden is on them under Glucksburg to show that this right is deeply rooted in history and tradition.

[00:42:57] Speaker 00:
The burden is not on us to disprove that point.

[00:42:59] Speaker 00:
The fact that they acknowledge that the history is, at best, unclear.

[00:43:04] Speaker 00:
We would submit it's quite clear, but their theory is it's unclear.

[00:43:07] Speaker 00:
That's essentially an admission that they can't prevail on the merits.

[00:43:10] Speaker 00:
Because Gluxburg, I think, if you take it seriously, and the courts reaffirmed it in Munoz most recently, historical equivalence means that plaintiffs lose in a fundamental rights case.

[00:43:21] Speaker 00:
I don't think you can establish a deeply rooted right without a robust historical record supporting the claim that you're bringing.

[00:43:29] Speaker 05:
So you're, to go back a little bit in your argument, you're saying that the plaintiffs waived certain arguments with respect to standing if they didn't raise it in the district court, right?

[00:43:45] Speaker 05:
You have strong support in this circuit for that proposition, but I've never understood the rationale behind it.

[00:43:53] Speaker 05:
If you didn't raise any objections to standing in the district court, have you waived it?

[00:43:59] Speaker 05:
No jurisdictional objections, right?

[00:44:01] Speaker 05:
So.

[00:44:02] Speaker 05:
The court has an obligation to decide cases only when it has jurisdiction, but there's a corollary, and that is the court has to take jurisdiction when it has it.

[00:44:15] Speaker 05:
And so I don't know why only the party opposing jurisdiction cannot waive any argument, but the party asserting jurisdiction can.

[00:44:26] Speaker 05:
It seems to me not to make much sense.

[00:44:29] Speaker 00:
I respectfully disagree, Your Honor.

[00:44:31] Speaker 00:
I think it does make sense in this respect.

[00:44:33] Speaker 00:
I think it's rooted in the presumption that federal courts presumptively lack jurisdiction and that the burden is on the party asserting or invoking the court's jurisdiction to affirmatively show it does exist.

[00:44:43] Speaker 00:
And the court should only exercise jurisdiction when necessary.

[00:44:46] Speaker 00:
And so if there's an argument in favor of jurisdiction and the party with the burden to invoke and show that

[00:44:52] Speaker 05:
have you waived any objection to jurisdiction?

[00:45:08] Speaker 05:
The answer is no.

[00:45:10] Speaker 05:
Right.

[00:45:10] Speaker 05:
But I think that's your argument.

[00:45:11] Speaker 05:
If somebody raises it in the district court, if you don't respond, you've waived the response.

[00:45:18] Speaker 05:
It doesn't wash.

[00:45:19] Speaker 05:
It doesn't wash in exactly the situation I'm talking about.

[00:45:22] Speaker 00:
I realize there's an asymmetry.

[00:45:23] Speaker 00:
But I do think the asymmetry is rooted in the asymmetry of Article 3 itself, which is that I'm wasting the court's time because it's an uphill battle.

[00:45:36] Speaker 02:
Why is it administratively easier for the board to have a voter registration system that doesn't take into account whether someone is a lawful documented versus an undocumented?

[00:45:55] Speaker 00:
It is administratively easier because it is often quite difficult to sort through different types of in different statuses of federal immigration law.

[00:46:04] Speaker 00:
And if someone is coming in and they have if the board is not necessarily equipped to be able to decipher out immigration fraud on the spot when it's registering is there not such a thing as like a green card.

[00:46:16] Speaker 00:
I'm sure there is, but there are also fraudulent immigration documents that the board is not.

[00:46:21] Speaker 02:
Oh, there's fraudulent IDs for citizen voting as well.

[00:46:24] Speaker 02:
And so one could have some kind of requirement that you have, what is the ID now, the one, whatever, the real ID.

[00:46:42] Speaker 02:
I don't know that and it's I guess another way of putting it is it rational well to allow undocumented.

[00:46:50] Speaker 02:
People people who are not present legally vote.

[00:46:57] Speaker 00:
All of those arguments, I think.

[00:46:58] Speaker 00:
would be persuasive that this were a heightened standard of review.

[00:47:02] Speaker 00:
And even under rational basis, I don't think there are, but my friends haven't made them.

[00:47:06] Speaker 00:
They have forfeited entirely any argument that this law does not pass rational basis review by not arguing it.

[00:47:12] Speaker 00:
Convicted felons can vote in DC.

[00:47:16] Speaker 00:
They were re-enfranchised in 2019, yes, Your Honor.

[00:47:19] Speaker 00:
2019, was it?

[00:47:20] Speaker 00:
That's my understanding, yes.

[00:47:22] Speaker 02:
That is people who are serving a prison term or people who have served the term?

[00:47:27] Speaker 00:
I believe it's people who have served.

[00:47:29] Speaker 02:
So they're people who are presumptively back as full members of society with their civil rights having been restored.

[00:47:36] Speaker 00:
That is my understanding, although as I stand before you, I'm not 100% sure about that.

[00:47:41] Speaker 00:
But I assume that that's correct.

[00:47:44] Speaker 00:
But to go back to what your honor raised, fair points.

[00:47:47] Speaker 00:
If this were a situation where we had the burden to show it was rational by some colloquial measure, I think that those would be arguments we would have to grapple with.

[00:47:57] Speaker 00:
But no one has raised them in this case, and the burden is on plaintiffs to show not just that it's irrational, but to negate every conceivable justification for the law, even at the pleading stage.

[00:48:07] Speaker 02:
Does the fact that the act was passed for the purpose of enfranchising non-citizens make it subject to heightened scrutiny because it has the purpose of discriminating against

[00:48:19] Speaker 02:
citizens or American nationals by diluting their vote?

[00:48:22] Speaker 00:
Not at all, Your Honor.

[00:48:23] Speaker 00:
Why not?

[00:48:24] Speaker 00:
There is no plausible inference of discriminatory purpose simply by infringing on certain felons.

[00:48:28] Speaker 00:
And the reason for that is that the law, first of all, they have disclaimed reliance on legislative intent in their complaint at JA 13.

[00:48:38] Speaker 00:
They say legislative intent is not necessary because they think this is facially discriminatory.

[00:48:42] Speaker 00:
They're wrong about that.

[00:48:44] Speaker 00:
I think, as the colloquy you had with my colleague shows, the law is facially neutral.

[00:48:49] Speaker 00:
But they've disclaimed any argument about that.

[00:48:51] Speaker 00:
They point to no well-pleaded facts in their complaint on this point.

[00:48:54] Speaker 00:
But the more fundamental legal point for why their claim fails is that the courts do not impute a discriminatory, invidious intent to the legislature simply because a law has an effect on certain members of the population, even when it might appear to be inevitable, particularly in a case like this where you have nondiscriminatory rationales for the law.

[00:49:15] Speaker 00:
So if you take a case like Feeney, for example, you have a situation where there was a veteran's preference hiring, right?

[00:49:25] Speaker 00:
And everyone acknowledged it had an inevitable disadvantage for women because of historical gender disparities in the military.

[00:49:32] Speaker 00:
Nevertheless, the Supreme Court recognized that, well, it does have this unfortunate effect, but we're not going to infer discriminatory intent because this is a legitimate law.

[00:49:40] Speaker 00:
It has other legitimate purposes.

[00:49:42] Speaker 00:
And so we're not going to draw this inference of discriminatory purpose simply because of its effect.

[00:49:48] Speaker 00:
Arlington Heights lays out a number of factors that go into the showing of discriminatory intent.

[00:49:52] Speaker 00:
My friends have not taken up any of them.

[00:49:55] Speaker 00:
Particularly when you view this in light of the presumption of legislative good faith, there's really no basis to infer that there was animus towards citizens.

[00:50:04] Speaker 00:
To provide a few examples, Judge Randolph brought up the fact that felons were re-enfranchised.

[00:50:09] Speaker 00:
I don't think anyone would infer from that discriminatory animus against law-abiding persons if the district were to lower the voting age.

[00:50:17] Speaker 00:
I don't think anyone would infer that there was animus towards the elderly.

[00:50:20] Speaker 05:
Once you register to vote, do you automatically become

[00:50:24] Speaker 00:
not eligible, but required to serve on juries.

[00:50:27] Speaker 00:
You do not, Your Honor.

[00:50:28] Speaker 00:
My understanding is that the statute governing jury service still requires citizenship.

[00:50:34] Speaker 05:
Still have to be a citizen to serve a jury.

[00:50:36] Speaker 00:
That is my understanding.

[00:50:37] Speaker 00:
Yes, Your Honor.

[00:50:39] Speaker 02:
If we were to reach the merits of the Equal Protection Clause claim

[00:50:45] Speaker 02:
Does your position that the act removes a voting classification mean that plaintiffs have failed to state any equal protection claim, or does it mean that the act is subject to rational basis review?

[00:50:59] Speaker 00:
It's subject to rational basis review.

[00:51:01] Speaker 02:
And why, if there's no classifications?

[00:51:02] Speaker 02:
Is it subject to rational basis review under the due process clause, or is it subject?

[00:51:07] Speaker 02:
Where does the equal protection clause even have bite?

[00:51:12] Speaker 00:
I can only follow the doctrine of the court on this point.

[00:51:17] Speaker 00:
Conceptually, I'm not quite sure why you would go to rational basis review.

[00:51:20] Speaker 00:
It is a bit of a formality in many cases.

[00:51:23] Speaker 00:
I think it derives from the equal protection component of the due process clause itself.

[00:51:30] Speaker 00:
But when the statute is facially neutral, I'm not aware of any court simply ending the analysis there.

[00:51:35] Speaker 00:
There's usually an analysis of rational basis, maybe as a backstop just to ensure that there is nothing wholly irrational in the law.

[00:51:43] Speaker 00:
It could be in certain as applied claims.

[00:51:46] Speaker 00:
There could be an irrational application of the law to a particular person, even though it's facially neutral.

[00:51:50] Speaker 00:
Now we have nothing like that here.

[00:51:51] Speaker 00:
But I think that's why a court might proceed to the rational basis.

[00:51:54] Speaker 02:
And if we were in rational basis territory, do we apply the standard test and ask whether the law is rationally related to a legitimate governmental interest or the somewhat modified version that courts looking at non-resident vote enfranchisement cases use, looking at

[00:52:13] Speaker 02:
certain factors to determine is the newly enfranchised group, do they have a substantial interest in the election or is that just an application of rational basis?

[00:52:24] Speaker 00:
I think the outcome in this case is the same either way.

[00:52:29] Speaker 00:
I don't think the court needs to worry about that.

[00:52:32] Speaker 00:
But I see your honor's point that I don't know that it has more bite.

[00:52:36] Speaker 00:
This is a rationality when it comes to looking to the interest of those who have been enfranchised.

[00:52:40] Speaker 00:
I think it could just be a particular subset of the idea of rational basis of being certainly if you're enfranchising people.

[00:52:46] Speaker 00:
with no legitimate interest in a jurisdiction, then it could very well be it's irrational.

[00:52:50] Speaker 00:
And my friend acknowledged the Brown case from the East District of Tennessee involved that type of fact pattern.

[00:52:56] Speaker 00:
Now, that was entirely different in this case.

[00:52:58] Speaker 00:
It involved non-residents, fragmentation of voting, a thinly veiled effort to perpetuate decades of racial discrimination.

[00:53:06] Speaker 00:
Here, every person gets a single vote.

[00:53:09] Speaker 00:
Only residents, and this is important, only residents with fixed residency in the district who have disclaimed the right to vote in any other country have the right to vote in the district under this new law.

[00:53:19] Speaker 00:
So there are still limitations on which non-citizens qualify.

[00:53:28] Speaker 02:
All right.

[00:53:29] Speaker 00:
Thank you.

[00:53:30] Speaker 02:
No more questions, I think.

[00:53:32] Speaker 00:
Thank you.

[00:53:32] Speaker 00:
We would ask the court to affirm.

[00:53:35] Speaker 02:
OK.

[00:53:38] Speaker 02:
Now, did Mr. Hayek reserve any time?

[00:53:42] Speaker 02:
All right, we took you over.

[00:53:43] Speaker 02:
We gave you more time than that on the primary argument, but we'll give you the two minutes for rebuttal if you want it.

[00:53:49] Speaker 02:
You don't have to take it.

[00:53:50] Speaker 01:
Yes, Your Honor.

[00:53:53] Speaker 01:
We did state below that we had standing because the plaintiff's right to a citizen's self-government was violated, and the violation of the constitutional right is an injury.

[00:54:07] Speaker 02:
And if you look at- I thought you said, though, for purposes of standing.

[00:54:11] Speaker 01:
Yes, for standing.

[00:54:12] Speaker 01:
We said that below.

[00:54:13] Speaker 02:
That that was the same vote dilution harm.

[00:54:16] Speaker 01:
That it was.

[00:54:18] Speaker 01:
We did allege that separately below that we had standing because our rights were violated.

[00:54:28] Speaker 01:
The right to citizen self-government was violated.

[00:54:30] Speaker 01:
We also said the right to citizen self-government

[00:54:36] Speaker 01:
implies the right to vote in an election in which only citizens vote.

[00:54:40] Speaker 01:
And that's on pages 16 and 64 through 68.

[00:54:46] Speaker 01:
And we cite those pages in our brief.

[00:54:49] Speaker 01:
Defendant never responded to this argument.

[00:54:51] Speaker 01:
So if anybody forfeited it, it was defended.

[00:54:55] Speaker 01:
And the court, I think, passed on it by treating it all as vote dilution.

[00:55:00] Speaker 01:
And we previously discussed that, Your Honor.

[00:55:05] Speaker 01:
This is also not a general grievance, it's important to point out, because not all DC voters are injured by this law.

[00:55:13] Speaker 01:
Only citizen DC voters are injured by this law.

[00:55:17] Speaker 01:
Non-citizen voters have been benefited by the alien voting law.

[00:55:21] Speaker 02:
What about the, I mean, I found it striking that there's, this is a case about vote dilution and there's nothing in plain saying that these are people who ever voted or ever intended to vote.

[00:55:31] Speaker 02:
That's really problematic.

[00:55:33] Speaker 02:
And I wonder why once that was brought to your attention, why there wasn't an effort to amend the complaint in the district court.

[00:55:42] Speaker 01:
Well, if somebody goes to the trouble of suing or if someone's public, public spirited enough to go to the trouble of suing over their voting rights, they're either going to go to the trouble.

[00:55:55] Speaker 01:
It can be presumed that they're either going to go to the trouble of voting or that it would be futile.

[00:56:02] Speaker 02:
It's very- People have all kinds of programmatic interests that don't support standing to sue.

[00:56:09] Speaker 02:
I mean, that's a really central part of our inquiry, you could imagine.

[00:56:13] Speaker 01:
It also follows from a claim of vote dilution, Your Honor, that you intend to vote if you're claiming that your vote's going to be diluted.

[00:56:25] Speaker 01:
And also, there's a statute that allows defective jurisdictional allegations to be amended in the trial or appellate courts upon terms.

[00:56:33] Speaker 01:
Which is Congress's way of saying that it doesn't.

[00:56:36] Speaker 02:
What are you referring to?

[00:56:37] Speaker 02:
I don't recall that being cited.

[00:56:40] Speaker 01:
Yes, we cited in the statements.

[00:56:43] Speaker 01:
In the?

[00:56:45] Speaker 01:
In the statements in this court, Your Honor.

[00:56:47] Speaker 02:
The statements?

[00:56:48] Speaker 01:
The declarations of plaintiffs, Your Honor.

[00:56:51] Speaker 02:
The declarations attached to the reply brief?

[00:56:53] Speaker 01:
Yes, Your Honor.

[00:56:55] Speaker 01:
And I think that's Congress's way of saying that it's not right that up

[00:57:02] Speaker 01:
Defendants can't wave standing, but plaintiffs can.

[00:57:13] Speaker 02:
Any other questions?

[00:57:14] Speaker 02:
All right.

[00:57:16] Speaker 02:
The case is submitted.

[00:57:17] Speaker 04:
Thank you, Your Honor.