# Oral argument — United States v. State of Oregon > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/argument%3A105023 ## Record - **Collection:** Oral argument - **Document type:** Oral argument - **Published:** May 19, 2026 ## Text May it please the court Andrew Brana for the United States. I'd like to reserve three minutes of my time for rebuttal Last summer the Department of Justice requested from Oregon their statewide voter registration list based on the plain authority of the Civil Rights Act of 1960 in order to enforce the language of the National Voter Registration Act and the Help America Vote Act Oregon refused and the district court in dismissing our subsequent question if it was plain authority Why didn't you cite it in your first demand letter? the plain authority to Have the state maintain their Voter registration list is listed clearly in the NBRA The CRA is not listed in the in the initial Requests to the state it is listed Explicit would you expect if that authority was so plain that you would have included it in that first letter? Well, the the first letter was intended to provide Oregon the opportunity to work with the Department of Justice in maintaining a clean and accurate voter roll of eligible voters As they are required to do under both the NBRA and HAVA the subsequent letter established the statutory requirements for that demand Under the CRA, that's all I'm gonna be asking your friend this question But are you aware of any law that says you can't split? your request and the The reasons for it into more than one communication. No, I'm not the the the language in the CRA is fairly broad in this context under Section 720703 the statute provides that the state election official Must provide those records upon demand to of the United States And I think that a very natural reading of the word demand would encompass multiple different communications and the contrary authority that has been Cited to by opposing counsel or by the the state of Oregon here is simply inapplicable to the to the type of situation that is Relevant under a CRA demand. They cite the news Chavez case. I believe as an example of where the notice must be Presented to the individual who's going to need to appear in court in a single communication But that case is very much different from these cases, right that case involved a removal process by the Immigration and Natural Services Immigration and Naturalization Services in that case it was very important for all of the information to be in a single communication and If it wasn't in that because that established the date that the individual could be removed upon none of those Potential Bad Events could happen to the state here. We had provided them So I'm gonna jump ahead a little and I apologize for interrupting your argument But I want to ask you about the SORNA issue. Okay, so First am I correct? That the United States has never argued That even if there were a SORNA violation That can't be an excuse for the state not producing in response to their request I I am not aware of that that type of argument that that we've made the proper So so you would agree that even if there were such an argument, it's been forfeited By opposing counsel by you. No, did you have you ever argued that? Even if there is a SORNA violation the the remedy can't be a refusal by the state to produce I Believe we would we would say that well, we're have you said it have we said that well We have said in our brief that the United States is completely Consistent with the Privacy Act and the SORNA requirements. So you've replied with SORNA I don't recall ever seeing the United States saying even if we haven't the remedy ordered here doesn't work I I believe we made the argument that this this is not the proper time or place for a Privacy Act argument in general right the the the correct assessment for the Privacy Act which provides remedies for individuals who may have had their private documents mishandled by the government or their data leaked is to file suit in the District Court and at that time they should Seek remedies from the government itself. It is not the time or place for the state to refuse to participate in a normal Records request on the potential that the United States could violate the Privacy Act. So also on the SORNA Am I correct that you have? Yes I'm sorry. My mic must have been off. I didn't have a question for the government as soon as you're done, Judge Bennett. All right I'll ask one more question and I'll try to make it short So again on SORNA the government's argument is that? Basically every voter is a potential victim and Every voter registration is a subject of investigation and so the August 2003 Federal Register entry works to satisfy SORNA. Do I basically have that right? Yes, Your Honor under these under these Circumstances, so every every voter in the United States is a potential. No under the circumstances for this request that we have placed to the State of Oregon, right? By the way, this is not a new type of record that the United States Department of Justice Civil Rights Division will include in its in its computer system, right? Since 2003 the Department of Justice has had multiple state voter registration lists of unredacted information that we have Received pursuant to requests from the Civil Rights Act You know following the passage of the HAVA in 2004 the Department of Justice instituted actions against Texas, Georgia Indiana, Maine, New Jersey under a whole variety of statutes we received those State voter registration lists they were kept on the exact same System that these voter registration lists are going to be kept under they were kept under the exact same Auspices of the SORN they provided the exact same notice to the individuals who are voters Whose records would be included in that that their records would be included on the Department of Justice database All right, Judge Rendoza. You had a question Because Application That this is the type of information that you're requesting Why does it why do you think that that complies with the Privacy Act? So the Privacy Act requirements involve You know the the dual standards of not keeping information that you're not supposed to but also providing the the public with ample notice that the routine uses which with their Records will be used as well as the types of records that will be included Can you point to the language that you believe establishes that notice to the public so in the in the SORN in the in the 2003 SORN that was published it explicitly states that the type of records that will be included in the Civil Rights Division's computer system there that explicit one involve the records that are Related to the enforcement of the laws that the Civil Rights Division enforces and that includes the NVRA that includes the HAVA Includes the Civil Rights Act. So the we would not be including records necessarily that would involve solely the prosecution of statutes that we do not enforce that limitation along with the statement following that of the nature of the Limitations that are there for the Department of Justice Civil Rights Division to share that information with other agencies That seems to be vague beyond disbelief. I mean, how can that provide notes? Well, it's the exact same notice that's been provided for the last 23 years under the exact for the exact same types of records It's it it also, you know doesn't make much sense that it would only become an issue now when the exact same type of records have been kept Including sensitive records Sensitive records are anticipated under under all of these statutes, right? so the the the CRA Anticipated that sensitive records would be among those that would be collected by the Department of Justice in their requests to these State and local election officials that you can tell it did that because it has an explicit Prohibition on the disclosure of records or papers under 20704 and in addition the Privacy Act applies to all of the records kept by the Department of Justice Civil Rights Division So these these these are consistent statutes and we are reading them consistently Thank you. If if hypothetically There were found to be a sworn violation How long would it take? Again, hypothetically if this were the only problem, how long would it take the government to cure that? We would need at least 30 days for public notice and comment. So that's it, right? Well, I mean From you'd have to evaluate the public comment, but it would be 30 days potentially plus 30 days potentially plus So from the from the time of the issuance of the decision requiring a new sworn We would submit that through the OMB process Once the OMB has approved it, it would be published and in 30 days, of course, you wouldn't have to wait I'm sorry, you wouldn't have to wait for a decision. That's true. Your honor We wouldn't have to wait for us to publish a new sworn. We could go ahead and do that and any any Indication from this court that we should immediately But under the you know, one of the reasons why we initially requested the OLC opinion which we made this court aware of last week when it was published Was our concerns under that same issue there, too. We wanted to make sure that the processes that we were Maintaining in the Department of Justice for these records were consistent with our sworn and the OLC Found that they were based on the plain language Included therein. Can I ask you a question about that OLC opinion? It says that the department is seeking the CVRLs per the executive order and the executive order only says The Department of Homeland Security shall review each state's Publicly available voter registration list. It doesn't say the unredacted So if you are basically trying to implement this executive order, why are you now seeking the unredacted? SVRLs in order to satisfy the elements of the order that require the Attorney General to prioritize enforcement of Voting rights which include the NBRA and HAVA in order for us to adequately assess Whether or not the state voter registration list includes individuals that may be dead or who may be non-citizens We need the entire List that includes either the driver's license or the four-digit SSN or the HAVA identifier code if either of those are available in order to ensure that we get an accurate result, you know, we we are Following going to be following once we get a list Going to be following the exact same process that 93 states and localities have followed in Using the safe system, right we have signed a memorandum of agreement with the With DHS in order for us to once we get the unredacted file to upload it They will return results directly to us from the safe system We are in control of the file where it will indicate if an individual shows up as a question I'm sorry, we're running out of time here and I apologize to cut you off. But so 2701 of title 3 of the Civil Rights Act talks about records and papers which come into his possession relating to any application registration payment of poll tax or other act requisite to voting in such election and then 2703 talks about any record or paper required by section 20701 to be retained and preserved Upon demand in writing by Attorney General or his representative directed to the person having custody possession or control of such record now Do you think there's a difference when the statute uses? having possession versus come into possession No, your honor. I think it's what's the difference there in those verbs in those two sections of the same statute the difference there I think is a temporal distinction right because we cannot request Records from someone who does not have possession of them and as is common with all of these election records They are passed on from state election officials and local election officials between each themselves, so there will be a time when a local election official may have possession of a A Registration or a ballot or some form of document that they've created and then they may turn that Document or other item to a higher ranking Local election official and it then may you agree on the text of those two statutes. I don't particularly see your Temporal distinction and we have to assume that Congress uses different words and means it right and in one statute They say having possession and the other statute they say come into his possession Let me look at the OLC memorandum on page 9 It says a term receive is used to mean come into possession of get acquire or the like from any source outside of oneself citing Webster's Dictionary 1958 which was two years before the Civil Rights Act was enacted, correct? Yes. Yes Okay, so it looks like even OLC is saying come into possession means you're acquiring it from a source outside of yourself No They are saying that that the word receive means that and the statute did not use receive the statute Use the phrase come into possess Right, but how do they define come into possession? They define it as get acquire or the like from any source outside of oneself and I'm quoting Here I understand that but I think it's a I think you're you're you're Employed putting on the opinion and overly formalistic View of that term. I mean that definition your honor if you were to if you were to use it would eviscerate the entire act Of any purpose whatsoever, right some of the records that Oregon has already conceded that they are going to give to us The public record would then no longer be covered by the by the CRA and everybody agrees that it should be all of the records Interpretation is rendering come into Surplusage right because you're saying that should just say records and papers which he possesses no, your honor because First with regard to 20703 having possession. You can only make the request To the person who actually has the documents, right? You can't make the request to someone who does not have them and in terms of the come into possession That's a broader requirement that That requires the individual to maintain those records regardless of where they are in the chain, right? so that if an individual a local election registrar were to get a ballot or a Registration document or something like that. They have come into possession of it But they may not keep possession of it for the entire process of those 22 months They may pass that along to other election officials at which time the burden of retaining that Passes to them and then the request would pass to them as well. All right counsel. We thank you for your argument We've taken up a lot of your time with questions. We'll give you the three minutes you requested for a rebuttal Yep May it please the court and just so you know the time on the clock is your time Correct. Okay. Thank you. Your honor. May it please the court Robert Koch on behalf of the state of Oregon? This is a case about federalism and the separation of powers The Constitution's elections clause entrusts states with the administration of free and fair elections that underpin our democracy In this case us DOJ seeks to reimagine a 66 year old civil rights statute to force Oregon to create and disclose an unredacted version of its statewide voter list and Not just Oregon's but every state in this country To amass a federal a national federal database of every registered voter in America That shocking demand fails under three different measures First it falls outside the ambit of title 3 of the Civil Rights Act of 1960 To it violates the Privacy Act and 3 it violates the e-government Act Before I begin delving into the text of title 3 I didn't want to take a minute to clarify a few things that were misstated by opposing counsel about how Oregon actually Runs its statewide voter roll as Dick as required by Hava so opposing counsel talked about election records being registration cards being passed among various election officials, but Hava has a Provides federal funding to create a statewide voter roll that each election official in the state can access at any time Hava explicitly delegates to the states the discretion on how to implement that and Oregon State motto is she flies with her own wings and consistent with that motto. We have our own We developed our own system. And so I want to Go to a question. I asked your friend which is if one were to assume Hypothetically that the 2003 Federal Register Publication was inadequate Why would that even if it were true? justify an order Allowing Oregon not to comply with an otherwise proper request. I mean, I know Oregon To takes the view for many reasons that it's not an otherwise proper request But if it were why would a sworn violation even if there were one? Give Oregon a reason a legal reason not to comply with an otherwise proper request. What authority is there for that? well, the authority is the well the authority is the Privacy Act and or we're in the Privacy Act would it give Oregon the right not to comply with an otherwise proper request by the government because the sworn was inadequate Because if the Secretary of State were to give over that sensitive personal information He would be violating the Privacy Act and at the same time would be violating Oregon Privacy law that prohibits the disclosure of that sensitive information. Okay, but That's the the Oregon Privacy Act is a separate argument and the government's argued it's preempted and But you said there is something in the Privacy Act itself Which would allow Oregon to say as a defense your sworn is inadequate Therefore your demand doesn't work. Can you point me to any authority for that? I don't have I know that the Our state officials have to comply with federal and state law in the commission of their duties and So it would be under that general legal principle that they have to discharge their duties But as of right now you have nothing no statute or case you can point me to Your honor because the federal government never raised that as an argument. I do not. All right. Well, that's a fair response although your friend disputes that I mean if I if I think that this is a problem I'll have to take a further look at whether I think it's forfeited, but go ahead with yeah And I would say I there's nothing in the reply brief that mentions anything of the sort And so that was never because that argument was never raised. I have not done independently research to buttress it. Okay I will say that This when us DOJ made their demand we did say that we would Provide a public voter list as long as the federal government did comply with the Privacy Act requirements and At no point did they make any response to that nor have they raised any arguments in their briefing? And just to clarify Another statement made by opposing counsel We did not make that offer because we thought that it fell within the ambit of title 3 It does not for all of the reasons expressed in our briefing. We made that offer because as a matter of public transparency and accountability Oregon law Allows any individual to request a public version of our of our voter list? That list does not include the sensitive Information that the federal government the US DOJ has specifically requested here And if I could talk a little bit about I was discussing before about how Oregon actually manages our list It's the OC VR Oregon computerized voter registration platform It has all of the individual voter information that is required by HAVA It is stored in individual voter files and as part of that platform We do generate that statewide publicly available voter list We do that every month, but the system is not designed to generate the type of Voter list that the US DOJ seeks here specifically with that sensitive individual Are you saying not designed to or cannot? We would have to change the platform in order to generate it. So so you could it's just not currently designed to do it Presumably our IT could come could deter could figure that out And is that a defense in your view to the request that that the system isn't currently designed? It is not a defense. It is further Exemplification of why this request does not fall within the plain text of title 3 27 at section 2701 Specifically refers to records and papers that come into the possession of a state election This doesn't count as a record or paper The specific voter lists that they have requested To include the individual sensitive information of every individual voter for the millions of registered voters in Oregon That list that the the form that they have requested does not exist But the data exists the data exists, but that doesn't come within the ambit of the statute It's in our view data is not a record or paper. So like for example Data on a cell phone would be similarly not What to be so for example, it wouldn't be covered by the Fourth Amendment's protection of Papers and effects because the data on a cell phone isn't a paper or effect Well your honor we're construing the terms of a statute and to construe the terms of a statute you look at the text and context of the statute In history and in light of the history in which it was enacted So like the Fourth Amendment, you know, this didn't exist then so data on a cell phone wouldn't be protected I don't believe that the US DOJ has I I don't understand the Government the federal government to have raised a Fourth Amendment claim. No, I understand. I'm just can I ask a question? III. Oh, sorry. Go ahead judge Mendoza. Oh Just a quick question Let's say that we agree with some of your reason not all of it but on on the different grounds basis and purpose separately records and papers Separately privacy. What grounds should we decide this case on? In our view your honor. They all apply and so that this they all are Individually and collectively I think counsel that's like when a parent is asked which kid do you like most? They say all of them each one of them, but I'm asking you a specific question Which one do you really believe like all parents? Maybe there's a preference for one Which of those arguments do you? Do you? Would you decide this case if you were us right now? I will say that the district court in this case was Disposed of the case on basis and purpose And I think that this court can affirm the district courts judgment of dismissal on that basis based on the district courts Well reasoned decision. I think that the other textual the other textual arguments that we have raised all Provide additional justification for why this court can affirm because the type of statewide Voter list unredacted with all the personal information is Not a paper or record that comes into the possession of a state official that gets retained and preserved Sure, they can turn around in the next week right a new basis on purpose and it's done it's over Here's the new basis on purpose consistent with what? CRA requires it's over you're done. Oh, I disagree your honor because there's been no Allegation that there's been any type of voter discrimination here. What they want is to the asserted Purpose is to assess the state's compliance with NVR a and have a list Understand is your argument for example that let's say in a different hypothetical Circumstance somebody we're arguing a hypothetical state. Let's pick one, Alabama Is racially discriminating and they demand records to see if Alabama is racially discriminating and it's Allowing people to vote And the statute is the same as it is in Alabama makes the decision that it's just not going to keep anything other than in A data form because then it won't qualify as a as a paper Even if even if what's in data on the computers totally reflects racially discriminatory acts toward Toward voters your view would be that if it's only data that's constantly changing on the Alabama state computers that The u.s. Couldn't get it under the same kind of request it made to you. Absolutely not your honor this the plain text of the statute particularly interpreted in light of its context in history requires the Preservation of individual voter registration documents, but I'm saying if their system was Exactly the same as yours and the government's record was the government's record request was the same It wouldn't what Alabama? Regardless of what was reflected there what Alabama had wouldn't qualify as a record etc under the statute No, your honor to reiterate The plain text of the statute encompasses it requires a state to retain and preserve Individual voter registration documents our system does that and if they thought that we were discriminating With respect to our voter registration practices and they had a base They stated that purpose and they had a factual basis for it They would be able to access that that data or I'm excuse me those records, but they couldn't but I thought it's not records. I Thought it's it's not those so records or papers So just to declare we're talking about a couple things and I'm saying if their request was exactly the same As in this case, yes They wanted everything because they thought it would help them decide if there was racial discrimination The the position would still be well, no not a record not a paper for the same reason. It's not one here. I Just want to make sure I'm being so I don't know if you're referring to voter registration cards Which I'm referring to a request for everything they requested from you an unredacted statewide voter list. Yes No, that would not be permissible, okay, so they couldn't get that from Alabama and my hypothetical that's correct your honor, right so, can you just Well, let me ask one question. The government had previously moved to consolidate this case with the California case. Do you oppose? our panel consolidating or not We view that completely within the court's discretion your honor. Okay Can you please I I think I may have Misunderstood so you keep separate voter files and then from that you collate the information For the SVRL, is that correct? Generally, yes, so the the short answer is yes, the longer answer is our our voter plat our voter role platform has voter files for each individual voter which includes that voters extensive personal sensitive information on each individual voter and what our platform is designed to do as Required by and consistent with Oregon law. It generates a statewide voter list that includes Frankly a lot of individual information on each voter, but not the sensitive not the sensitive data that the US DOJ seeks here such as the Birthday and month and the driver's license number of each individual or the Social Security number, correct? You're saying that is not contained in your sort of master voter list, correct? I see And and to be I just want to reiterate Hava doesn't require that it Hava does not require that we be able to generate that type of sensitive voter list it requires the maintenance of a statewide voter role and We do that. We use Hava funds to Help run our platform. So to create to actually possess the list that the government is correct, correct Requesting you'd have to create that from scratch. That's not something that you even keep wholesale Okay, so then what do you update do you update the individual voter files if someone dies if someone changes an address? I don't know Oregon's law on whether a felony conviction Eliminates the right to vote. So is that the document that gets updated the voter? Individual file the individual voter file, correct? Okay, and what information are you using to update the individual voter files? But I don't know what you mean by what information are your sources of information that someone has died that someone has a new social I mean, whatever the whatever the update. Well, you tell me what kind of updating ever happens on the individual voter files Yeah so consistent with Hava each the local election officials are the ones who actually go in and Change each individual's voter file if that's a city or county officials, okay, correct And so that's if somebody registers to vote for the first time or they notify a change of address I believe that there is at consistent with Hava's requirements. There's some Cross there's some interface with it with our DMV record so if somebody notifies that they have a change of address there that then gets put into the system and To the extent that USDOJ was concerned that we weren't doing our late our list maintenance Requirements properly under the NVRA because the NVRA is the one that requires that we run a program that reasonably updates the voter file the the voters Information based on death or change of address. So to the extent that they thought we weren't doing that properly the NVRA Has inspection public inspection Requirements and rights, right? So any let's say there's a memo that says we want to discriminate against X people You would get that through the NVRA, right? You wouldn't get that through title 3, which is about this specific individual voter Poll tax document registration application whatnot. There's a different avenue for that or even perhaps civil litigation, correct? That's another way to get that information. Okay, but let me understand on this situation How many fields if you know like roughly are there in a individual voter file versus this This master list that you create with no driver's license social security number date of birth any of that private Personal identifying information how many fields are on those two separate buckets of file? So the in terms of what's in the public list I can point you to the Oregon statute that list what's all in what's included And that's ORS 247.945 And I believe that there's around if I had to guess I think there's about 10 or so, maybe 10 or 12 fields I can't give you an answer on the the Confidential voter on the voter file because frankly your honor. I've never seen it I'm not a I've spoken with Secretary of State folks who have access to it. It's so confidential I don't I don't have access to and that's what the city and county officials update anyway versus this state primarily, okay How many Election officials would have access to the Voter list that you generate. It sounds like you generate that once a month without any of the private personal identifying information How many people have back how many election officials have access anyone anyone in the public can access it? You just have to request it and pay $500 and that's required by Oregon statute. I say In terms of there are we have 36 counties and so and you didn't really ask this but third there are 36 counties and those are the number of election officials who would go in and alter the update each voter file and does does Oregon have voters submit any information online that Automatically gets populated I guess into their individual voter file. Is that right? Yes, and so There are two ways to register to vote there. You have the physical card and that is provided by ORS 247 dot oh one two Oregon statute and I think Hava as well also requires that you Can digitally register to vote that generates a digital version of the voter card? That is then saved into the voter file And those are the types of records and papers that in our view fall within the ambit of title 3 So you would be able to get the department would be able to get that individual voter file, even though it's digitized They'll be able get that through title Yes And that that is the type of that voter registration card is in our view precisely what title 3 was enacted to allow To require state officials to retain and preserve and to allow the US DOJ to access. All right Thank you counsel. We'll hear from your friend Good morning honors and may it please the court abakana on behalf of the interveners Your honors we are here today because DOJ says it wants to inspect and audit States compliance with list maintenance obligations imposed by Hava and imposed by the NBRA But there is no dispute that neither the NBRA nor Hava the two statutes that actually govern list maintenance Provide DOJ with the type of unfettered access that it seeks here DOJ itself realized this months ago when it abandoned its NBRA and Hava claims in this case So DOJ claims instead that it's now found a workaround in a 65 year old civil rights law That is not mentioned anywhere in the actual list maintenance statutes And that has never been interpreted interpreted to apply to these unredacted statewide voter lists and this result of DOJ's attempt to really kind of cram the CRA into the NBRA and the and Hava really results in this Fundamental mismatch on a number of essential bases when it comes to the text the person the purpose the bases for all of the the statutory Requirements and we can talk about just some of those examples some of which are your honors have already touched upon for instance the CRA Expressly prohibits anyone from altering a record covered by the statute Hava on the other hand requires election officials to continually and Regularly alter and update the statewide voter file adding new voters removing voters changing voter addresses now a common sense and harmonious reading of these two statutes would say that the CRA does not Extend to that voter file, but under DOJ's contrary reading CRA obligations to essentially freeze in place Would directly clash with Hava obligations obligations to constantly amend Putting the election officials in a catch-22 with criminal enforcement the threat of criminal enforcement as hanging in the balance Now your honor, I don't really understand that argument Understand why election officials couldn't appropriately comply by having regular updating and why regular updating but maintaining a Master current list would somehow violate either statute because the CRA specifically says that you can the documents that are covered must be preserved They must be retained for a period of 22 months for a fixed period Whereas the Hava would that applies to these actual statewide voter lists requires not preservation but constant updating So as this court recently just said last month in Nago The the idea that even NBRA would cover the statewide voter list doesn't make any sense because it would require States to essentially preserve every single iteration of this constantly evolving Database and I don't think even the my friends on the other side suggested that's actually required here Asking for is a snapshot in time. Well, I think your friends on the other side are saying that that's not a requirement They're saying that it's they're saying that it's okay that you can our friends on the other side are basically saying that yeah We understand there's some tension but maybe Alter in the CRA doesn't actually mean alter Maybe it means something more. I read what they say Just a little more Logically as to in the real world what you have to do but The portion that you cited in that case says what it says Although I think it's probably dictum, but the statutes are different, but go ahead I agree with your honor that in the real world You do have to comply with Hava and that's why the real world just does not match up on to the imagined world in which The CRA would cover these documents your honor asked my for my coke My colleague here about this. What about this hypothetical, Alabama? Documents of rate or concern about racial discrimination and what if they'd issued the exact same request to Alabama exact same the exact same request Yeah, and I would say your honor that the the Civil Rights Act Does not attach to the statewide voter file It does not match on that does not mean that there's not some relevant other documents that Alabama might have It also does not mean that that's not somehow attainable through an actual civil suit if there's a CRA Violation that requires an actual lawsuit under section 101 I understand that's what your friend said that even even if these Allegedly bad things were arguably going on. They couldn't use the same They used here exactly your honor that the CRA is very limited pre-enforcement Preservation requirement does not see to import all relevant possible evidence that could come in in the course of an actual lawsuit The CRA also imposes a temporal limit the CRA requires that states to retain and preserve Documents for a fixed period of 22 months, but it doesn't say they have to destroy it after 22 months No, but it doesn't say they have to keep it They can't keep it longer. It just says that's a minimum. Absolutely So this the CRA specifically required refers to a defined period For specific documents that are in a fixed format for a fixed amount of time that makes sense In the context of a document that itself is fixed It simply does not map on to a document that itself is constantly changing day by day hour by hour That temporal requirement simply does not match on and again as this Ninth Circuit This court just said last month in Nago that applying that Temporal requirement a similar temporal requirement in the NBRA Simply does not attach to something that's constantly but they were talking about a statute dealing with disclosure to the public Not disclosure to the Department of Justice that is true for the broader context of Nago But in that particular portion, they were talking about the illogical mismatch between applying this temporal temporal Document holder temporary temporal time period that was a not in NBRA to in a constantly involving statewide voter list And in fact your honor Nago Which has just decided really does it will further inform this case on a number of bases not just on the temporal mismatch But Nago also undercuts what my friend on the other side suggested Which is that they need somehow need this personal information in order to enforce the NBRA Nago specifically said no you don't Nago also said that it's not the NBRA But actually Hava that governs the statewide voter lists and because Hava doesn't require disclosure. Neither does the NBRA As this as the court said we declined to read the NBRA to provide a right for the public to access statewide voter lists When congress itself chose not to establish that statute when specifically addressing statewide voter lists the public to the public but it was in turn at the exact same provision that That the DOJ relied upon in its initial letter in a subsequent letter and it's in complaint before the court Uh to provide that same public access provision in order to seek access to the documents that it seeks here now the inference, uh here is even stronger because this while not NBRA is The Nago decided that the NBRA is too removed from Hava to allow that kind of disclosure The CRA is even farther removed and even farther afield here. I see i've used my time your honor if I can Thank you. Thank you May it please the court i'd first like to quick address judge mendoza's question that he Asked to opposing counsel there as to if he had to choose Which section of the uh arguments that were made by opposing counsel, which one would they pick? I know he couldn't pick one. I would really appreciate it if you could Uh pick whether or not the list itself is available under title three of the civil rights act the other Elements of the case that the district court ruled on here In terms of the basis and purpose that were stated in the letter. Those are things we can fix those are things we can comply with court orders on but if there's going to be a stop sign for us from this court to get the list at all under any of the Basis is there whether it would it would help our our future going forward in terms of trying to assess whether or not states Are complying with the hava? Uh speaking of complying with the hava i'm not sure if my friend on the other side intended to do this, but the hava Explicitly makes clear that the hava list the state voter registration file has to be a quote single system It cannot be multiple systems one that is front facing to the public That has the ability to download and one's the super secret one that no one can ever look at not even people who are defending it in court, so uh, uh the uh, it the hava explicitly says a single system and they have it, uh, and it includes the name and registration information of each individual it includes The uh, but how does that single? interactive computerized How does that meet the requirements of 2701 One Yes records or papers records and papers which come into his possession relating to any application registration payment or poll tax Or other act requisite to voting in such election. How does it meet that requirement though? It's very much. It's it's the uh, it's the Prime example of a documents that's related to the registration of an individual, right? Just two weeks ago the state of oregon used that list or parts of that list in order to send out three million Uh ballots by mail and for their primary processes That's where they get the individuals who get the ballots right from that registration list But you would agree that the relating to any application That is defining records and papers which come into his possession, correct? Yeah, all records and papers coming to the session that relate to Any application any registration any payment of poll tax there? I think it's a very difficult argument to make that the state voter registration list Which is the key document here in determining who gets to vote uh is not a record related to registration so You know based on but under your reading of related That means every election official would have to preserve And retain every single internal document ever relating to anything regarding an election, right? So how would they ever even be able to? For example edit an internal policy document Because where's the limit right? That's it. Okay. So there's two important Aspects of that one of which opposing council brought up when she was trying to uh when she was using the uh, uh term alter Very broadly here. Um, the statute doesn't include alter as a sole word, right? It's section 702 says that the state election official must willfully Steal destroy conceal mutilate or alter all of these terms mean the same thing, right? They are they are they they demonstrate a mens rea on behalf of the section of the state election official to destroy or change these documents in a way That might limit the ability of the united states to conduct an investigation. These are the same tactics that were being used They're destroying it every month, right? They're generating a brand new list every month They're not retaining that list for 22 months as required by title 22 so for me If I am deleting that file, I am willfully destroying that file Not exactly your honor because they are creating a new one, right? They are they are replicating what are they doing with the old one? Right, aren't they destroying the old one? I I don't know you'd have to ask them About where are you saying they have to they have to save every single iteration? No, your honor Why not? Why isn't any why isn't any deletion any update a destruction because it doesn't include the mens rea that's required under that under that, uh list of Of of words there that include stealing destroying continuing mutilating and altering the purpose of that Section of the statute was to stop the type of hijinks that were occurring like saying. Oh, we don't have that Fisher v us for your argument on this. No, I mean that comes directly from lind your honor that that that that that Because I think fisher is distinguishable. It says whoever corruptly Alters destroys mutilates or conceals a record a document with the intent to impair the object's integrity or availability Uh, I mean we don't have corruptly here We don't have that intent to impair here. So If I don't agree with you on lind either then what what is your support to say? There's no statutory conflict here When java is saying you are obligated to update And title three is saying you will fully destroy that And you're going to be put in prison for not more than one year Because title three with all due respect your honor just simply doesn't say that it doesn't impute the uh, uh Obligated any person who willfully steals destroys conceals mutilates or alters any record or paper required by section 2071 Shall be fined not more a thousand dollars or in prison not more than one year or both so I I'm reading the text. I understand but I I think that the that the word willfully does a lot of work there as well as the other uh words included there before the clear the obvious intent here was to address the type of Of tactics that are used by states uh In or localities in order to hide the evidence of any type of wrongdoing They may have done in the statute like for example, right having a public list that that that that doesn't Somehow connect to a private list that no one can access That's the exact type of thing that these courts are dealing with back in 1960 that we're dealing with here from the state In 1960 they were dealing with particularized wrongdoing They were having a specific pre-existing articulated enforcement concern Right. They were not saying give me 365 million people's worth of voting lists. Let me request it from all 50 states Let me sue 30 states that wasn't quite What was happening in 1960, correct? There were particularized wrongdoing concerns Right and they were requesting the documents of the voters who may have been denied the right to vote Versus this list who is everyone who is registered to vote successfully, right? So to me the prop the purpose seems Not quite the same here. No, your honor. They were not requesting any of the records from the voters, right? They were the the all the requests were being made To the state and local election officials and those included but it was the voters application the voters Registration the voters payment of poll tax. It also included roles, uh that uh state probate judges were That were created included receipts that were created by the uh judges to uh, demonstrate the payment of poll tax Those records that were self-generated were included in all of those early cases as well. This is nothing new All right, we thank counsel for their arguments the case just argued is submitted --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/argument%3A105023. Public record. Not legal advice.