1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ... · CARL SCHANZLEH 22 OFFICIAL COURT...
Transcript of 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ... · CARL SCHANZLEH 22 OFFICIAL COURT...
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1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
2 12-22282-CIV-ZLOCH/OTAZO-REYES
3
4KARLA VANESSA ARCIA, ET AL, )
5 ) PLAINTIFF, )
6 ) VS. )
7 )FLORIDA SECRETARY OF STATE, )
8 ET AL, ) )
9 DEFENDANT. )______________________________)
10
11
12 TRANSCRIPT OF MOTION HEARING HAD BEFORE THE HONORABLE
13 WILLIAM J. ZLOCH, IN FORT LAUDERDALE, BROWARD COUNTY, FLORIDA,
14 ON MONDAY, OCTOBER 1, 2012, IN THE ABOVE-STYLED MATTER.
15
16APPEARANCES:
17FOR THE PLAINTIFFS: MARC A. GOLDMAN,
18 KRISTEN M. ROGERS, LINDSAY E. KAPLAN, AND
19 LORELIE S. MASTERS, ESQS. JENNER & BLOCK
20 1099 NEW YORK AVE., NW, SUITE 900 WASHINGTON, DC 20001 - 202 639-6076
21 CARL SCHANZLEH
22 OFFICIAL COURT REPORTER U. S. COURTHOUSE
23 299 E. BROWARD BLVD., 202B FORT LAUDERDALE, FLORIDA 33301
24 954 769-5488
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1 APPEARANCES CONTINUED:
2 FOR THE PLAINTIFFS: JOHN DELEON, ESQ. CHAVEZ & DELEON
3 5975 SUNSET DRIVE, SUITE 605 SOUTH MIAMI, FL 33143 - 305 740-5347
4FOR THE DEFENDANTS: MICHAEL CARVIN, ESQ.
5 JONES DAY 51 LOUISIANA AVE., NW
6 WASHINGTON, DC 20001 - 202 879-7643
7 DANIEL, E. NORDBY, ESQ. OFFICE OF THE GENERAL COUNSEL
8 R.A. GRAY BUILDING, SUITE 100 500 S. BRONOUGH STREET
9 TALLAHASSEE, FL 32399 - 850 245-6536
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11 TABLE OF CONTENTS
12 WITNESSES: DIRECT CROSS REDIRECT RECROSS
13 DALE RICHARD EWART .............. 7 17 23
14 WILFREDO SEDA ................... 28 33
15 INDEX TO EXHIBITS
16 EXHIBITS MARKED FOR RECEIVED IDENTIFICATION IN EVIDENCE
17DESCRIPTION PAGE LINE PAGE LINE
18DEFENSE EXHIBIT 1 ................................. 85 24
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1 (FORT LAUDERDALE, BROWARD COUNTY, FLORIDA; MONDAY,
2 OCTOBER 1, 2012, IN OPEN COURT.)
3 THE COURT: GOOD MORNING. PLEASE BE SEATED.
4 CALLING CASE NUMBER 12-22282-CIVIL.
5 COUNSEL, WOULD YOU NOTE YOUR APPEARANCES.
6 MR. GOLDMAN: THIS IS MARC GOLDMAN FROM JENNER &
7 BLOCK.
8 THE COURT: GOOD MORNING.
9 MR. GOLDMAN: GOOD MORNING.
10 MS. KAPLAN: GOOD MORNING, YOUR HONOR. I'M LINDSAY
11 EYLER KAPLAN FROM JENNER & BLOCK.
12 THE COURT: GOOD MORNING.
13 MS. ROGERS: KRISTEN ROGERS FROM JENNER & BLOCK.
14 THE COURT: GOOD MORNING.
15 MR. DELEON: JOHN DELEON, CHAVEZ & DELEON, LOCAL
16 COUNSEL. GOOD MORNING, JUDGE.
17 THE COURT: GOOD MORNING.
18 MS. MASTERS: GOOD MORNING, YOUR HONOR. LORELIE
19 MASTERS FROM JENNER & BLOCK.
20 THE COURT: GOOD MORNING.
21 MR. CARVIN: GOOD MORNING, YOUR HONOR. MICHAEL CARVIN
22 FROM JONES DAY REPRESENTING THE SECRETARY.
23 THE COURT: GOOD MORNING.
24 MR. NORDBY: GOOD MORNING, YOUR HONOR. DAN NORDBY,
25 GENERAL COUNSEL FOR THE FLORIDA DEPARTMENT OF STATE ALSO
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1 REPRESENTING THE SECRETARY OF STATE DETZNER.
2 THE COURT: GOOD MORNING.
3 MR. NORDBY: GOOD MORNING.
4 THE COURT: WE ARE HERE THIS MORNING PURSUANT TO THE
5 PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION.
6 LET ME ASK THE PARTIES. THIS IS SORT OF AWKWARD FROM
7 A PROCEDURAL STANDPOINT. THE PLAINTIFF HAS MOVED FOR A
8 PRELIMINARY INJUNCTION AS OPPOSED TO INITIALLY SEEKING A
9 TEMPORARY RESTRAINING ORDER, CORRECT?
10 MR. GOLDMAN: THAT'S CORRECT.
11 THE COURT: AND YOU HAVE ALSO FILED A MOTION FOR
12 SUMMARY JUDGMENT AT THE SAME TIME, CORRECT?
13 MR. GOLDMAN: CORRECT.
14 THE COURT: DO THE PARTIES STIPULATE THAT TODAY'S
15 HEARING WILL BE A FINAL HEARING, A FINAL REVIEW WITH RESPECT TO
16 THE ISSUES AT HAND?
17 MR. GOLDMAN: WE CERTAINLY DO.
18 MR. CARVIN: WE DO NOT, YOUR HONOR, IN TERMS OF A
19 FINAL HEARING.
20 WE OBVIOUSLY THINK FOR THE REASONS WE SET FORTH IN OUR
21 PAPER THAT YOU CAN DISMISS THEIR CASE TODAY. BUT IF YOU
22 BELIEVE THAT THERE IS ANY MERIT TO THEIR LEGAL ARGUMENTS OR
23 THAT REQUIRES FURTHER EVIDENTIARY HEARING WE ARE NOT PREPARED
24 TO GO FORWARD, NOR WE HAVE BEEN PROVIDED A REASONABLE
25 OPPORTUNITY TO PRESENT WHATEVER EVIDENCE THIS COURT MIGHT DEEM
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1 RELEVANT IN THE FUTURE.
2 THE COURT: BUT, I MEAN, THE PARTIES STIPULATE THAT
3 THIS IS A LEGAL ISSUE, CORRECT?
4 MR. CARVIN: WELL, FROM OUR PERSPECTIVE IT IS A LEGAL
5 ISSUE. THEY'VE RAISED -- THEY'VE SUBMITTED EXPERT REPORTS AND
6 AFFIDAVITS TOWARDS STANDING THAT WE CONTEST. AND WE'VE ONLY
7 HAD A VERY BRIEF OPPORTUNITY AND WE WON'T HAVE ANY OPPORTUNITY
8 OTHER THAN TO CROSS-EXAMINE WHATEVER WITNESS THEY DECIDE TO PUT
9 FORWARD HERE.
10 SO IT'S STANDING AND WHATEVER FACTS THEY THINK ARE
11 RELEVANT ARE STILL AT ISSUE. IN YOUR HONOR'S MIND WE WOULD
12 LIKE A FURTHER OPPORTUNITY. I DO WANT TO EMPHASIZE WE DON'T
13 THINK WE ARE GOING TO GET TO THAT POINT BECAUSE WE THINK THAT
14 THEIR LEGAL ARGUMENT ON THE MERITS IS FLAWED FUNDAMENTALLY.
15 THE COURT: ALL RIGHT. THANK YOU.
16 DOES EITHER SIDE, AT THIS POINT IN TIME AT LEAST, HAVE
17 ANY TESTIMONY OR ANY PHYSICAL OR DOCUMENTARY EVIDENCE TO SUBMIT
18 TO THE COURT AT THIS TIME?
19 MR. GOLDMAN: YOUR HONOR, WE HAVE ONE WITNESS ON
20 STANDING, MR. EWART 1199 SCIU. WE HAVE A SECOND WITNESS WHO
21 HAS NOT YET GOTTEN HERE ALSO ON STANDING, ONE OF OUR
22 ORGANIZATIONAL PLAINTIFFS. HE MAY NOT BE NECESSARY AT ALL,
23 BUT -- BUT WE WOULD LIKE TO PRESENT THE FIRST WITNESS.
24 THE COURT: ALL RIGHT. CALL YOUR WITNESS.
25 MS. KAPLAN: YOUR HONOR, MY NAME --
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1 THE COURT: AND JUST SO THE RECORD IS CLEAR WE ARE
2 PROCEEDING ON THE PLAINTIFFS' MOTION FOR A PRELIMINARY
3 INJUNCTION, NOT THE MOTION FOR SUMMARY JUDGMENT.
4 MS. KAPLAN: YES, SIR.
5 THE COURT: BECAUSE THAT TIME PERIOD HAS NOT PASSED
6 FOR THE DEFENSE TO HAVE AN OPPORTUNITY TO RESPOND, EVEN THOUGH
7 THEY DID RESPOND IN THEIR WRITTEN SUBMISSIONS.
8 ALL RIGHT, CALL YOUR WITNESS.
9 MS. KAPLAN: YOUR HONOR, AGAIN MY NAME IS LINDSAY
10 EYLER KAPLAN AND ON BEHALF OF PLAINTIFFS WE CALL MR. DALE EWART
11 TO THE STAND.
12 THE COURT: SIR, PLEASE STEP UP TO THE WITNESS STAND.
13 REMAIN STANDING AND RAISE YOUR RIGHT HAND.
14 (WITNESS SWORN)
15 THE WITNESS: I DO.
16 THE COURT: THANK YOU. PLEASE BE SEATED.
17 PLEASE SPEAK DIRECTLY INTO THAT MICROPHONE SO THAT WE
18 WILL BE ABLE TO HEAR YOU.
19 PLEASE STATE YOUR FULL LEGAL NAME FOR THE RECORD AND
20 SPELL YOUR LAST NAME FOR THE REPORTER.
21 THE WITNESS: MY NAME IS DALE RICHARD EWART. THE LAST
22 NAME IS SPELLED E-W-A-R-T.
23 THE COURT: THANK YOU VERY MUCH.
24 YOU MAY PROCEED.
25
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1 DALE RICHARD EWART,
2 BEING DULY SWORN, WAS EXAMINED AND TESTIFIED AS FOLLOWS:
3 DIRECT EXAMINATION
4 BY MS. KAPLAN:
5 Q. GOOD MORNING, MR. EWART.
6 A. GOOD MORNING.
7 Q. WHERE DO YOU LIVE?
8 A. COOPER CITY, FLORIDA.
9 Q. AND WHAT DO YOU DO FOR A LIVING?
10 A. I AM THE VICE-PRESIDENT AND ASSISTANT REGIONAL DIRECTOR FOR
11 1199 SCIU, THE FLORIDA REGION THEREOF.
12 Q. AND WHAT IS 1199 SCIU.
13 A. IT'S A LABOR ORGANIZATION THAT REPRESENTS HEALTH CARE
14 WORKERS THROUGHOUT THE STATE OF FLORIDA.
15 Q. AND IS 1199 SCIU A PLAINTIFF IN TODAY'S THIS CASE?
16 A. YES.
17 Q. NOW, WOULD YOU DESCRIBE 1199 AS A POLITICALLY ACTIVE
18 ORGANIZATION?
19 A. YES. WE ARE VERY ACTIVE POLITICALLY.
20 Q. AND HOW MANY MEMBERS DOES 1199 HAVE?
21 A. WE REPRESENT APPROXIMATELY 25,000 HOSPITAL AND NURSING HOME
22 WORKERS.
23 Q. AND WHERE ARE THOSE WORKERS LOCATED?
24 A. IN 27 HOSPITALS AND ABOUT 75 NURSING HOMES ACROSS THE STATE
25 OF FLORIDA FROM OCALA DOWN TO THE SOUTHERN PART OF MIAMI-DADE
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1 COUNTY.
2 Q. CAN YOU TELL US ANYTHING ABOUT THE CITIZENSHIP STATUS OF
3 YOUR MEMBERS?
4 A. THE VAST MAJORITY OF OUR MEMBERS ARE CITIZENS OF THE UNITED
5 STATES. WE DO HAVE SOME NON-CITIZEN IMMIGRANT MEMBERS, BUT
6 MOST OF OUR MEMBERS ARE CITIZENS.
7 Q. AND DO YOU KNOW APPROXIMATELY WHAT PERCENTAGE OF YOUR
8 MEMBERS ARE REGISTERED TO VOTE?
9 A. ABOUT 65 PERCENT OF THEM.
10 Q. AND HOW LONG HAVE YOU WORKED FOR 1199?
11 A. I WORKED FOR SCIU, WHICH IS A -- 1199 IS AN AFFILIATE OF
12 SCIU SINCE 1984, AND FOR 1199 HERE IN FLORIDA SINCE 1997.
13 Q. AND CAN YOU TELL US A LITTLE BIT ABOUT YOUR BACKGROUND WITH
14 THE ORGANIZATION, HOW DID YOU START THERE?
15 A. I STARTED WITH SCIU IN MICHIGAN IN 1984. I WAS AN
16 ORGANIZER AND REPRESENTATIVE, WORKED WITH MEMBERS IN THE
17 NURSING HOMES AND HOSPITALS BARGAIN CONTRACTS, ENGAGED IN
18 REALLY ALL THE WORK OF THE UNION IN VARIOUS CAPACITIES THROUGH
19 THE YEARS.
20 Q. SO IS IT FAIR TO SAY THAT IN THIS ROLE YOU INTERFACE WITH
21 UNION MEMBERS?
22 A. ABSOLUTELY.
23 Q. DID YOU WORK ON ANY VOTING ISSUES AT THIS TIME?
24 A. POLITICS IS VERY MUCH IMPORTANT TO THE WORK OF THE UNION.
25 AND, SO, YES, VOTER REGISTRATION, GET OUT THE VOTE, POLITICAL
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1 CAMPAIGNS HAS BEEN A PART OF OUR WORK FROM THE VERY BEGINNING.
2 Q. YOU MENTIONED YOU ARE CURRENTLY VICE-PRESIDENT AND
3 ASSISTANT REGIONAL DIRECTOR OF THE FLORIDA REGION. IN CAPACITY
4 WHAT ARE YOUR RESPONSIBILITIES?
5 A. AS AN ADMINISTRATIVE CAPACITY WITH RESPECT TO
6 RESPONSIBILITIES WITH RESPECT TO THE ADMINISTRATION OF THE
7 UNION, ALSO HAVE RESPONSIBILITIES WITH STAFF OVERSIGHT AND
8 DIRECTION.
9 Q. NOW, WITH RESPECT TO STAFF OVERSIGHT AND DIRECTION HOW MANY
10 STAFF MEMBERS DO YOU OFFER SEE?
11 A. WELL, WE HAVE ABOUT 30 ORGANIZERS, NOT COUNTING OUR
12 ADMINISTRATIVE STAFF. THEY DON'T ALL REPORT DIRECTLY TO ME BUT
13 THEIR AREA DIRECTORS REPORT TO ME AND I HELP COORDINATE THEIR
14 WORK.
15 Q. AND WHAT TYPES OF ACTIVITIES DOES THE STAFF WORK ON?
16 A. THE STAFF ARE RESPONSIBLE FOR ADMINISTERING THE COLLECTIVE
17 BARGAINING AGREEMENTS WE HAVE WITH THE EMPLOYERS, FOR
18 DEVELOPING THE ORGANIZATION, THAT IS, IDENTIFYING AND
19 DEVELOPING, RECRUITING, TRAINING LEADERS OF THE UNION, SIGNING
20 MEMBERS UP, COLLECTIVE BARGAINING WHEN CONTRACTS EXPIRE NEED TO
21 BE RENEGOTIATED. AND THEN, OF COURSE, OUR POLITICAL WORK WHICH
22 IS ONGOING BUT PARTICULARLY INTENSE IN ELECTION YEARS AROUND
23 REGISTERING PEOPLE TO VOTE AND THEN GETTING PEOPLE OUT TO THE
24 POLLS IN ELECTION TIME.
25 Q. ARE THERE ANY OTHER GENERAL TYPES OF POLITICALLY RELATED
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1 ACTIVITIES THAT YOUR UNION IS ENGAGED IN AROUND ELECTION TIME?
2 A. WELL, WE HAVE BEEN VERY MUCH INVOLVED THE VOTER PROTECTION
3 WORK. IT WAS VERY IMPORTANT TO US AND WE WORK VERY HARD TO
4 PASS THE EARLY VOTING BILL SOME YEARS AGO. AND AFTER SOME BAD
5 EXPERIENCES IN FLORIDA, AND NOTABLY THE 2000 ELECTION WHERE
6 MANY OF OUR MEMBERS EXPERIENCED DIFFICULTIES VOTING, VOTER
7 PROTECTION HAS BECOME A VERY IMPORTANT PART OF THE WORK WE DO.
8 THAT IS, MAKING SURE NOT ONLY THAT PEOPLE ARE REGISTERED TO
9 VOTE, BUT WHEN THEY GET TO THE POLLS THAT THEY ARE ABLE TO VOTE
10 A REGULAR BALLOT AND THAT THEIR VOTE GETS COUNTED.
11 Q. IS THERE A PARTICULAR DIVISION OR DEPARTMENT WITHIN YOUR
12 ORGANIZATION THAT WORKS ON THESE VOTER REGISTRATION AND VOTER
13 PROTECTION ISSUES OR IS IT SOMETHING THAT EVERYBODY IS INVOLVED
14 WITH?
15 A. WELL, WE HAVE A POLITICAL DIRECTOR. BUT POLITICAL WORK IS
16 ALL THE WORK OF THE STAFF OF THE UNION.
17 Q. NOW, DOES 1199 IN ADDITION TO STAFF TIME ALSO DEVOTE ANY
18 FINANCIAL RESOURCES TO THIS ELECTION RELATED WORK?
19 A. YES, WE DO.
20 Q. AND HAS 1199 BEEN INVOLVED WITH HELPING ITS MEMBERS IN
21 VOTER REGISTRATION AND VOTER PROTECTION ISSUES THIS YEAR?
22 A. YES. ALTHOUGH BECAUSE OF THE LAW WE ARE NOT ABLE TO
23 COLLECT REGISTRATIONS DIRECTLY WE HAVE DONE OUR BEST TO TRY TO
24 REACH OUT TO ALL OF OUR MEMBERS WHO ARE NOT REGISTERED TO VOTE.
25 WE HAVE DONE MAILINGS TO NON REGISTERED MEMBERS GIVING
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1 THEM INFORMATION ABOUT HOW TO BECOME REGISTERED. EACH OF OUR
2 STAFF PEOPLE WORKS WITH A SPECIFIC WORK SITE, AND PART OF THEIR
3 REGULAR JOB IS WHEN THEY GO TO THE WORK SITE HAVE A LIST OF ALL
4 THE EMPLOYEES AT THAT WORK SITE WHO IS A MEMBER OF THE UNION
5 WHO IS REGISTERED TO VOTE, WHO IS NOT.
6 PART OF THE DISCUSSIONS THEY HAVE WITH WORKERS WHILE
7 THEY ARE THERE IS ENCOURAGING THOSE NOT REGISTERED TO VOTE TO
8 GET REGISTERED, ANSWERING THEIR QUESTIONS ABOUT HOW TO DO THAT.
9 Q. SO DURING THOSE MEETINGS WHEN YOUR STAFF IS TALKING TO
10 WORKERS ON SITE IS THAT A TIME WHEN THEY WOULD DISCUSS ANY
11 CONCERNS THAT MEMBERS HAD ABOUT THE VOTER REGISTRATION PROCESS
12 OR VOTING?
13 A. TYPICALLY IF SOMEONE ISN'T REGISTERED TO VOTE THEY'RE --
14 YOU KNOW, THERE ARE ANY NUMBER OF REASONS FOR IT. APATHY IS
15 ONE, BUT SOMETIMES FEAR OF CYNICISM ARE REASONS. AND, OF
16 COURSE, WE HAVE TO HAVE CONVERSATIONS WITH PEOPLE TO OVERCOME
17 EITHER OF THOSE FEARS AND CYNICISM AND ENCOURAGE THEM TO BECOME
18 REGISTERED TO VOTE AND PARTICIPATE IN THE PROCESS.
19 Q. HAVE THERE BEEN ANY NEW OR ADDITIONAL VOTER REGISTRATION
20 CONCERNS THIS YEAR IN ADDITION TO WHAT YOU HAVE ALREADY
21 MENTIONED?
22 A. WELL, OF COURSE, THERE WAS THE PURGE THAT OCCURRED THIS
23 SPRING AND EARLY SUMMER WHEN LETTERS WENT OUT TO A NUMBER OF
24 VOTERS ABOUT THEIR REGISTRATION STATUS.
25 Q. SO WHEN YOU SAY, THE PURGE. CAN YOU PROVIDE US A LITTLE
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1 BIT MORE INFORMATION ABOUT YOUR UNDERSTANDING OF WHAT OCCURRED?
2 A. AGAIN, MY UNDERSTANDING IS THAT IN APRIL OR MAY THE STATE
3 SENT OUT LETTERS TO ABOUT 2,700 PEOPLE QUESTIONING THEIR -- THE
4 VALIDITY OF THEIR REGISTRATION STATUS.
5 Q. NOW, AFTER THOSE LETTERS WENT OUT DID 1199 SCIU TAKE ANY
6 ACTION RESPONSE?
7 A. WE OBTAINED A COPY OF THE LIST. WE MATCHED IT AGAINST OUR
8 MEMBERSHIP LIST AND FOUND THAT THERE WERE THREE MEMBERS OF THE
9 UNION WHO WERE ON THAT LIST OF 2,700. AND, SO WE MADE IT OUR
10 VERY URGENT BUSINESS TO GET IN TOUCH WITH EACH OF THOSE THREE
11 PEOPLE INDIVIDUALLY.
12 IT TOOK SOME DOING TO TRACK THEM DOWN. BUT TO FIND
13 THEM, TO FIND OUT IF THEY HAD ANY QUESTIONS, TO ADVISE THEM ON
14 HOW THEY COULD PROTECT THEIR RIGHT TO VOTE.
15 Q. AND ABOUT HOW MANY OF YOUR STAFF MEMBERS WERE INVOLVED IN
16 THIS PROCESS OF IDENTIFYING AND LOCATING YOUR MEMBERS ON THE
17 LIST?
18 A. IT TOOK ABOUT FOUR PEOPLE TO TRACK THOSE THREE PEOPLE DOWN.
19 IT TOOK THEM ABOUT -- ROUGHLY ABOUT A WEEK TO DO THAT.
20 Q. AND BY HAVING TO SPEND A WEEK THOSE FOUR STAFF MEMBERS WERE
21 THEY TAKEN AWAY FROM ANY OTHER WORK THAT WOULD HAVE BEEN DOING
22 FOR THE UNION?
23 A. WELL, THE TIME THEY SPENT TRYING TO TRACK THEM DOWN, WHICH
24 WAS CONSIDERABLE DURING THAT PERIOD OF TIME WAS TIME THAT WOULD
25 HAVE BEEN SPENT IN THE OTHER DUTIES OF THE UNION, EITHER
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1 REPRESENTATION OF WORK OR THE OTHER REGISTRATION AND VOTER
2 EDUCATION WORK THAT THOSE STAFF WOULD BE DOING OTHERWISE.
3 Q. AND ONCE YOU WERE ABLE TO LOCATE AND CONTACT THOSE THREE
4 MEMBERS DID YOUR ORGANIZATION TAKE STEPS TO HELP THEM CORRECT
5 THE SITUATION?
6 A. ONE OF THEM HAD ALREADY TAKEN STEPS TO CORRECT IT HERSELF.
7 WE HELPED THE OTHER TWO TO MAKE SURE THAT THEIR VOTER
8 REGISTRATION STATUS WAS INTACT.
9 Q. AND JUST TO BE CLEAR. THOSE THREE MEMBERS THAT WERE ON THE
10 LIST THAT ARE PART OF YOUR UNION DO YOU KNOW IF THEY ARE
11 CITIZENS?
12 A. YES, THEY ARE.
13 Q. NOW, IN ADDITION TO THE THREE SCIU MEMBERS WHO WERE
14 ACTUALLY ON THE STATE'S VOTER PURGE LIST DID YOUR UNION HAVE
15 ANY OTHER CONCERNS ABOUT THE LIST?
16 A. WE HAVE CONCERNS THAT THE -- ALTHOUGH THE -- THREE OF OUR
17 MEMBERS WERE DIRECTLY IMPACTED BY BEING ON THE LIST, THAT
18 ACTIVITIES LIKE THIS HELP TO SEND A CHILLING MESSAGE TO VOTERS
19 GENERALLY, PARTICULARLY IMMIGRANT VOTERS, PEOPLE WHO ARE
20 NATURALIZED CITIZENS.
21 WE HAVE A LOT OF OUR MEMBERS FROM HAITI AND THE
22 CARIBBEAN, PEOPLE WHO ARE NATURALIZED CITIZENS OF THE UNITED
23 STATES AND REGISTERED TO VOTE AND, YOU KNOW, WE HAVE HAD
24 EXPERIENCE IN THE PAST, IN OUR VIEW THIS IS NOT IN A VACUUM.
25 THERE HAVE BEEN PURGES OF FELONS WHERE NAMES THAT WERE SIMILAR
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1 WERE TAKEN OFF. WE HAVE HAD SOME PROBLEMS IN THE PAST, AGAIN
2 PARTICULARLY IN 2000 WITH THOSE SORTS OF PURGES.
3 SO, OUR CONCERN WAS THAT THIS WOULD HAVE AN IMPACT
4 GREATER THAN THE THREE PEOPLE, BUT THAT THE PUBLICITY AROUND IT
5 WOULD BE CHILLING TO OTHER PEOPLE AND MIGHT DETER THEM EITHER
6 FROM BECOMING REGISTERED TO VOTE IN THE FIRST PLACE OR FROM
7 SHOWING UP AT THE POLLS ON ELECTION DAY FOR FEAR THAT THERE
8 MIGHT BE SOME CONSEQUENCES.
9 Q. DID YOU OR YOUR STAFF MAKE ANY EFFORTS TO SPEAK TO YOUR
10 MEMBERSHIP ABOUT THESE CONCERNS OR ADDRESS THEM IN ANY WAY?
11 A. WELL, WE CERTAINLY TALKED ABOUT IT IN OUR STAFF MEETINGS.
12 THE STAFF REPORTED THAT THERE WAS SOME OF THOSE CONCERNS. WE
13 DIDN'T DO ANY -- ANY MAILINGS ABOUT IT. BUT IT BECAME A PART
14 OF THE DISCUSSIONS THAT STAFF WOULD HAVE WHEN THEY WERE IN THE
15 WORK SITES AND TALKING TO PEOPLE AGAIN ABOUT WHY TO REGISTER
16 AND WHY TO VOTE ONCE YOU ARE REGISTERED. AND AS THESE THINGS
17 COME UP STAFF HAVE TO DEAL WITH THOSE CONCERNS.
18 Q. AND IN DEALING WITH THESE CONCERNS TAKE UP STAFF TIME THAT
19 THEY ORDINARILY WOULD HAVE BEEN SPENDING WORKING ON OTHER
20 ISSUES?
21 A. YES. IF YOU HAVE TO CONVINCE SOMEONE TO TURN OUT TO VOTE
22 OR CONVINCE SOMEONE TO BECOME REGISTERED TO VOTE THAT'S TIME
23 THAT'S TAKEN AWAY FROM OTHER ACTIVITIES THAT YOU NEED TO BE
24 ENGAGED IN.
25 Q. AND DID THE WORK THAT YOUR UNION DO BOTH TO LOCATE AND
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1 IDENTIFY THE THREE MEMBERS ON THE 2,700 PERSON LIST AND TO
2 EDUCATE OTHER REGISTERED VOTERS ABOUT THEIR CONCERNS TAKE UP
3 TIME THAT YOU WOULD HAVE BEEN SPENDING ON OTHER UNION WORK?
4 A. NOT ME DIRECTLY. AS I SAID, I DON'T -- STAFF SUPERVISORS
5 REPORT TO ME. SO MY PERSONAL TIME WASN'T AFFECTED MUCH BY
6 THIS.
7 Q. WHAT IS YOUR UNDERSTANDING OF THE ACTIONS, IF ANY, THAT THE
8 STATE IS CURRENTLY ENGAGED IN TO PURGE VOTERS FROM THE ROLLS
9 PRIOR TO THE UPCOMING NOVEMBER 6TH ELECTION?
10 A. WELL, MY UNDERSTANDING IS THAT THE STATE HAS UNDERGONE
11 ANOTHER ROUND OF LETTERS TO SUPERVISORS OF ELECTIONS ABOUT --
12 ABOUT PURGES TO THE LIST.
13 Q. AND UPON LEARNING ABOUT THIS ADDITIONAL ROUND OF LETTERS
14 HAS YOUR ORGANIZATION TAKEN ANY ACTION?
15 A. WELL, WE ARE ATTEMPTING TO GET A COPY OF THE LIST TO DO
16 WHAT WE DID BACK EARLIER THIS SPRING, TO GET A COPY OF THE LIST
17 TO MATCH THAT LIST AGAINST OUR MEMBERSHIP LIST TO SEE IF ANY OF
18 OUR MEMBERS ARE AFFECTED. THEN WE WILL, OF COURSE, DO WHAT WE
19 DID BEFORE, WHICH IS TO TRY TO -- IF ANY OF OUR MEMBERS ARE
20 DIRECTLY ON THE LIST TO TRACK THEM DOWN, FIND OUT WHAT THEIR
21 CITIZENSHIP STATUS IS, ADVISE THEM HOW TO PROTECT THEIR RIGHT
22 TO VOTE.
23 Q. AND ABOUT HOW MANY OF YOUR STAFF MEMBERS ARE LIKELY TO BE
24 INVOLVED IN THIS PROCESS?
25 A. WELL, THAT, OF COURSE, WILL DEPEND ON HOW MANY PEOPLE, IF
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1 ANY, ARE ON THE LIST THAT WE RECEIVE. YOU KNOW, CONCERNS ABOUT
2 VOTER INTIMIDATION ARE SOMETHING THAT ALL OF OUR STAFF HAVE TO
3 DEAL WITH.
4 Q. AND IS YOUR STAFF OTHERWISE AT THE PRESENT TIME AND LEADING
5 UP TO THE NOVEMBER 6TH ELECTION ENGAGED IN OTHER VOTER
6 PROTECTION OR VOTER REGISTRATION RELATED WORK?
7 A. PRETTY MUCH FROM THIS POINT FORWARD TO THE ELECTION ALL OF
8 OUR ORGANIZERS AND MANY OF OUR ADMINISTRATIVE STAFF ARE DOING
9 NOTHING BUT GET OUT THE VOTE.
10 WE HAVE A WEEK LEFT TO REGISTER NEW VOTERS. SO THERE
11 IS -- WE WILL SPEND TIME MAKING CONTACTS THIS WEEK WITH THOSE
12 INDIVIDUALS, AND THEN BEYOND THAT IT'S GOING TO BE GET OUT THE
13 VOTE UNTIL ELECTION DAY.
14 Q. IF YOUR STAFF DOES HAVE TO SPEND TIME BETWEEN NOW AND THE
15 ELECTION ADDRESSING AN ADDITIONAL VOTER URGE WOULD THAT BE A
16 PROBLEM, PUT A TAX YOUR RESOURCES?
17 A. WELL, CLEARLY WE -- WE HAVE A LIMITED AMOUNT OF TIME UNTIL
18 THE ELECTION. SO EVERY DAY, EVERY HOUR IS PRECIOUS NOW UNTIL
19 ELECTION DAY. AND, SO ANY TIME WE HAVE TO SPEND CORRECTING
20 INACCURACIES AND CHALLENGES TO VOTERS IS TIME WE DON'T HAVE TO
21 SPEND TURNING OUT THE VOTE, EDUCATING PEOPLE ABOUT POLITICAL
22 ISSUES AND GETTING THEM TO THE POLLS.
23 Q. THANK YOU VERY MUCH, MR. EWART.
24 MS. KAPLAN: WE HAVE NO FURTHER QUESTIONS AT THIS
25 TIME, YOUR HONOR.
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1 THE COURT: ALL RIGHT. THANK YOU.
2 CROSS-EXAMINATION.
3 CROSS EXAMINATION
4 BY MR. NORDBY:
5 Q. GOOD MORNING, MR. EWART. DANIEL NORDBY HERE ON BEHALF OF
6 THE SECRETARY OF STATE.
7 YOU ARE HERE TESTIFYING ON BEHALF OF 1199 SCIU, IS
8 THAT CORRECT?
9 A. THAT'S CORRECT.
10 Q. YOU MENTIONED THAT YOU HAVE NON-CITIZENS ON YOUR LIST OF
11 25,000 PLUS MEMBERS. DID I RECALL THAT CORRECTLY?
12 A. YES. NOT ALL OF OUR MEMBERS ARE CITIZENS.
13 Q. AND HOW MANY OF YOUR TOTAL -- HOW MANY MEMBERS OF YOUR
14 TOTAL MEMBERSHIP RECEIVED A LETTER REGARDING POTENTIAL
15 NON-CITIZENSHIP?
16 A. THREE.
17 Q. AND OF THOSE THREE WERE ANY OF THEM REMOVED FROM THE ROLLS
18 TO YOUR KNOWLEDGE?
19 A. NO, I DON'T BELIEVE THEY WERE REMOVED FROM THE ROLLS.
20 Q. AND DID YOU JUST TESTIFY THAT ONE OF THOSE THREE HAD
21 ALREADY TAKEN CARE OF THE SITUATION BEFORE YOUR ORGANIZATION
22 CONTACTED HER?
23 A. SHE TOOK STEPS TO CONTACT THE SUPERVISOR OF ELECTIONS AND
24 VERIFY HER CITIZENSHIP, YES.
25 Q. OF THOSE THREE MEMBERS ARE TWO OF THEM PLAINTIFFS IN THIS
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1 CASE?
2 A. YES.
3 Q. ONE OF THE PLAINTIFFS IN THIS CASE HAS INDICATED IN THE
4 PAPERS THAT SHE NEVER RECEIVED A LETTER FROM THE SUPERVISOR OF
5 ELECTIONS. IS SHE ONE OF THE THREE THAT YOU ARE REFERRING TO
6 HERE?
7 A. YES, SHE IS.
8 Q. OKAY. HOW MANY OF YOUR MEMBERS WERE ON THE REFINED LIST
9 THAT WAS ANNOUNCED LAST WEEK BY THE SECRETARY OF STATE'S
10 OFFICE?
11 A. I DON'T BELIEVE WE HAVE THE LIST SO I DON'T KNOW THE ANSWER
12 TO THAT QUESTION?
13 Q. HAVE YOU ASKED FOR A COPY OF IT?
14 A. WE HAVE WORKED WITH OTHER VOTER RIGHTS PARTNERS TO GET A
15 COPY OF THE LIST. I DON'T KNOW WHAT THE STATUS OF THAT IS.
16 BUT I BELIEVE IT'S -- SOMEONE HAS ASKED ON OUR BEHALF.
17 Q. I MEAN, YOUR ORGANIZATION ASKED ANYONE FOR A COPY OF THE
18 LIST? ASKED THE SECRETARY OF STATES OFFICE, FOR EXAMPLE?
19 A. NOT THAT I KNOW OF.
20 Q. WITH REGARD TO YOUR VOTER REGISTRATION EFFORTS YOU SAY IN
21 YOUR AFFIDAVIT THAT SCIU HELPS ELIGIBLE VOTERS REGISTER.
22 DOES YOUR ORGANIZATION MAKE ANY EFFORTS TO ENSURE THAT
23 ONLY ELIGIBLE VOTERS REGISTER THROUGH YOUR DRIVES?
24 A. WELL, WE GO THROUGH THE VOTER REGISTRATION FORM WITH THEM
25 AND, OF COURSE, IT ASKS ABOUT CITIZENSHIP. AND, SO WE MAKE
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19
1 SURE THAT PEOPLE WHO ARE CITIZENS ARE REGISTERING TO VOTE AND
2 PEOPLE WHO ARE NOT CITIZENS ARE NOT.
3 Q. IN YOUR EXPERIENCE IS THAT SOMETHING THAT THESE REGISTRANTS
4 WOULD ORDINARY KNOW?
5 A. THEIR CITIZENSHIP STATUS?
6 Q. YES.
7 A. YES.
8 Q. HAVE THEY FOUND THAT QUESTION UNCLEAR IN YOUR EXPERIENCE ON
9 THE VOTER REGISTRATION FORM?
10 A. NO, SIR.
11 Q. AND ARE YOU DOING THAT THIS ELECTION CYCLE?
12 A. AGAIN, WE ARE NOT ALLOWED TO COLLECT VOTER REGISTRATION
13 CARDS AND SUBMIT THEM AS WE HAVE IN THE PAST BECAUSE OF THE
14 CHANGES IN THE LAW. BUT WE CERTAINLY ARE PROVIDING MATERIALS
15 AND INFORMATION TO OUR MEMBERS TO GIVE THEM AN OPPORTUNITY TO
16 REGISTER THEMSELVES.
17 Q. YOU CHARACTERIZED ONE AREA OF YOUR ORGANIZATION'S EFFORTS
18 IS VOTER PROTECTION. WILL YOU CALL THAT A REGULAR PART OF THE
19 SCIU'S ACTIVITIES?
20 A. YES. AT ELECTION TIME, YES.
21 Q. IS THAT SOMETHING YOUR STAFF MEMBERS DO EVERY ELECTION
22 CYCLE?
23 A. YES, SIR.
24 Q. IS IT ANY DIFFERENT BROADLY THAN IN PAST ELECTION CYCLES OR
25 IT'S JUST SOMETHING YOU ALWAYS DO?
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1 A. WELL, WE DEAL WITH THE ISSUES THAT ARE AT HAND AT THE TIME
2 OF ELECTION. AND, SO IF THERE ARE MORE ISSUES -- VOTER PURGE
3 NOW IS AN ISSUE THAT WE DIDN'T DEAL WITH IN PREVIOUS ELECTIONS.
4 AND, SO NOW WE HAVE THAT ADDITIONAL ISSUE TO DEAL WITH ALONG
5 WITH OTHERS, LIKE VOTER ID AND ASSISTING MEMBERS WHOSE ENGLISH
6 SKILL, ENGLISH IS NOT THEIR FIRST LANGUAGE AND CASTING A BALLOT
7 IF THEY NEED ASSISTANCE.
8 Q. IS THAT SOMETHING THAT YOU ANTICIPATE, THOUGH, THAT THERE
9 WILL BE DIFFERENT SPECIFIC ISSUES FROM ELECTION TO ELECTION
10 WITH THE OVERALL EFFORT OF YOU SOMETHING YOU CALL VOTER
11 PROTECTION?
12 A. YES.
13 Q. DID YOU SEND OUT ANY MIALERS TO YOUR MEMBERSHIP AT LARGE
14 REGARDING THE INITIAL LIST OF POTENTIAL NON-CITIZENS THAT WAS
15 RELEASED EARLIER THIS YEAR?
16 A. THE 2007 LIST?
17 Q. THE ROUGHLY 2,600, YES. DID YOU SEND -- MY QUESTION IS,
18 DID YOU SEND OUT CORRESPONDENCE, LETTERS, A NOTICE TO YOUR
19 MEMBERSHIP?
20 A. NO, WE DIDN'T.
21 Q. AN E-MAIL EVEN?
22 A. I BELIEVE WE SENT OUT AN E-MAIL WHEN THE -- WHEN THERE WAS
23 A SETTLEMENT REACHED ABOUT PARTS OF THIS LAWSUIT AMENDING OR
24 FIXING SOME OF THE PROBLEMS THAT CAME UP.
25 Q. BUT TO YOUR RECOLLECTION YOU DIDN'T SEND OUT EVEN AN E-MAIL
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1 TO YOUR MEMBERSHIP AT LARGE WHEN THE INITIAL LIST CAME DOWN.
2 A. NOT TO MY RECOLLECTION.
3 Q. WAS THE SCIU TRYING TO ASSIST ONLY PEOPLE WHO HAD BEEN
4 MISTAKENLY IDENTIFIED OR ALSO NON-CITIZENS WHO WERE CORRECTLY
5 IDENTIFIED?
6 A. AS I SAID, THERE WERE ONLY THREE OF OUR MEMBERS ON THE LIST
7 AND ALL THREE OF THOSE INDIVIDUALS WERE CITIZENS.
8 Q. HAVE ANY NON-CITIZENS WHO WERE ON THE VOTER ROLLS CONTACTED
9 BY THE SCIU FOR ASSISTANCE?
10 A. NOT TO MY KNOWLEDGE.
11 Q. YOU MENTIONED IN RESPONSE TO QUESTIONING EARLIER THAT AT
12 STAFF MEETINGS YOU AND OTHER EMPLOYEES OF SCIU HAVE TALKED
13 ABOUT THE POTENTIAL FOR CHILLER INTIMIDATION.
14 DO YOU HAVE ANY EVIDENCE THAT ANY OF YOUR MEMBERS HAVE
15 BEEN CHILD OR INTIMIDATED BY A LIST OF NAMES BEING RELEASED?
16 A. THE REPORTS OF STAFF PEOPLE THAT IN CONVERSATIONS WITH
17 MEMBERS THAT THERE ARE PARTICULARLY NATURALIZED CITIZENS WHO
18 FEAR THAT IF THEY GO TO THE POLLS AND VOTE THERE MAY BE
19 SOMETHING WRONG WITH THEIR CITIZENSHIP THAT THEY ARE NOT AWARE
20 OF AND THAT THERE WILL BE OTHER PROBLEMS, AS WELL AS SOME OF
21 OUR OTHER MEMBERS JUST A GENERAL CYNICISM ABOUT, THERE IS NOT
22 POINT IN VOTING BECAUSE MY VOTE WON'T COUNT.
23 Q. ARE THERE ANY EXAMPLES OF THAT OR IS THAT A GENERAL SENSE
24 THAT YOU HAVE?
25 A. IT'S CONVERSATIONS REPORTED BY STAFF TO ME AND TO OTHERS IN
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1 THE ORGANIZATION.
2 Q. HAS SCIU HAD ANY EXTRA EXPENDITURES AS A RESULT OF THIS
3 LIST?
4 A. WELL, THE STAFF TIME, AS I SAID. TRACKING DOWN THE THREE
5 PEOPLE WAS A FAIRLY CONSIDERABLE AMOUNT OF TIME SPENT.
6 Q. ARE THESE SALARIED STAFF?
7 A. THESE ARE.
8 Q. SO NO ADDITIONAL EXPENDITURES. THEY'RE DOING SOMETHING
9 DIFFERENT, BUT NO ADDITIONAL EXPENDITURES OVER AND ABOVE?
10 A. IT'S TAKING AWAY FROM OTHER DUTIES THAT THEY WOULD HAVE BUT
11 IT'S NOT EXTRA PAY, THAT'S CORRECT.
12 Q. WHAT OTHER PROGRAMS HAS SCIU HAS DONE ONE IN THE PAST
13 AREN'T YOU DOING THIS YEAR? FOR EXAMPLE, IS SCIU STILL DOING
14 VOTER REGISTRATION AS IT HAS IN THE PAST?
15 A. YES.
16 Q. SCIU IS STILL INTENDING TO ENGAGE IN GET OUT THE VOTE
17 EFFORTS?
18 A. YES.
19 Q. SCIU IS STILL ADVOCATING TO ITS MEMBERSHIP ABOUT POLITICAL
20 IDEAS?
21 A. YES.
22 Q. ARE THERE ANY ACTIVITIES THAT YOU WOULD ORDINARILY BE DOING
23 BUT AREN'T DOING AS A RESULT OF THIS LIST?
24 A. NO. THOSE THINGS ARE MORE DIFFICULT WHEN THESE ISSUES COME
25 UP, BUT THE WORK IS THE SAME.
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1 Q. BUT YOU ARE CONTINUING TO DO ALL OF THE SCIU'S POLITICAL
2 WORK.
3 A. YES, SIR.
4 MR. NORDBY: NO FURTHER QUESTIONS.
5 THE COURT: REDIRECT?
6 MS. KAPLAN: YES, YOUR HONOR.
7 REDIRECT EXAMINATION
8 BY MS. KAPLAN:
9 Q. MR. NORDBY MENTIONED THE TWO PLAINTIFFS IN THIS CASE, THE
10 INDIVIDUALS WHO ARE SCIU MEMBERS, MISS ARCIA AND MISS ANTOINE,
11 IS THAT RIGHT?
12 A. THAT'S CORRECT.
13 Q. AND, TO YOUR KNOWLEDGE, IS IT MISS ARCIA WHO DID NOT
14 RECEIVE A LETTER FROM THE STATE ABOUT BEING ON THE POTENTIAL
15 PURGE LIST?
16 A. I THINK THAT'S RIGHT, YES.
17 Q. BUT, TO YOU KNOW, WAS MISS ARCIA'S ON THAT LIST OF 2,700
18 POTENTIAL NON-CITIZENS IDENTIFIED BY THE STATE?
19 A. SHE WAS TO MY KNOWLEDGE.
20 Q. AND DID SCIU STAFF MEMBERS IDENTIFY MISS ARCIA'S NAME ON
21 THE LIST AND IDENTIFY HER AS BEING A MEMBER OF YOUR
22 ORGANIZATION?
23 A. AS I SAID, WHEN WE GOT THE LIST WE MATCHED IT AGAINST OUR
24 MEMBERSHIP LIST AND DISCOVERED THREE INDIVIDUALS WHO MATCHED.
25 Q. AND ONCE YOU LEARNED THAT MISS ARCIA WAS BOTH A MEMBER OF
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1 YOUR ORGANIZATION AND ON THE STATE'S LIST DID YOU REACH OUT TO
2 HER AND HELP HER TRY TO CORRECT THAT SITUATION?
3 A. YES, WE DID.
4 Q. NOW, WHEN DID YOU -- LET'S CHANGE OUR TRACKS HERE A LITTLE
5 BIT AND TALK ABOUT THE STATE'S PRESENT ACTIONS.
6 WHEN DID YOU FIRST LEARN OF THE EXISTENCE OF THIS NEW
7 LIST OF VOTER NAMES THAT YOU AND MR. NORDBY SPOKE ABOUT?
8 A. I THINK I BECAME AWARE OF IT WHEN I READ IT IN THE PAPER
9 THIS PAST WEEK.
10 Q. AND YOU MENTIONED THAT YOUR -- YOUR UNION IS WORKING WITH
11 OTHER ORGANIZATIONS TO ATTEMPT TO OBTAIN THAT LIST?
12 A. THAT'S CORRECT.
13 Q. AND DO YOU PLAN TO CONTINUE IN THOSE EFFORTS TO TRY TO GET
14 THAT LIST?
15 A. YES, WE DO.
16 Q. DO YOU HAVE ANY BASIS TO KNOW WHETHER THAT PARTICULAR LIST
17 OF NAMES YOU JUST LEARNED ABOUT LAST WEEK IS THE ONLY LIST THAT
18 THE STATE HAS RECENTLY RELEASED OR WILL RELEASE BEFORE THE
19 ELECTION?
20 A. I DON'T HAVE ANY INFORMATION ABOUT WHAT THE STATE PLANS TO
21 DO.
22 Q. YOU ALSO TALKED WITH MR. NORDBY ABOUT YOUR STAFF'S
23 INTERACTIONS WITH UNION MEMBERSHIP AND DISCUSSIONS RELATING TO
24 CHILL AND INTIMIDATION REGARDING THEIR VOTING RIGHTS.
25 WOULD STAFF MEMBERS SPEND THEIR TIME TALKING TO YOUR
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1 UNION MEMBERS ABOUT THEIR VOTING RIGHTS AND THEIR CONCERNS
2 ABOUT CHILL AND INTIMIDATION I KNOW YOU TOLD MR. NORDBY YOU ARE
3 STILL ENGAGED IN THE GENERAL CATEGORIES OF VOTER PROTECTION
4 WORK THAT YOU WORK ON. BUT ARE YOU -- IS YOUR STAFF ABLE TO
5 SPEND ANY LESS TIME ON THESE OTHER ISSUES DUE TO THE PURGE?
6 MR. NORDBY: OBJECTION. COMPOUND AND LEADING.
7 THE COURT: WELL, IT IS LEADING. REFRAIN FROM LEADING
8 THE WITNESS.
9 REPHRASE YOUR QUESTION.
10 BY MS. KAPLAN:
11 Q. MR. EWART, HAS YOUR STAFF BEEN ABLE TO DEVOTE ANY LESS TIME
12 TO OTHER ISSUES THAT THEY WOULD HAVE BEEN WORKING ON LEADING UP
13 TO ELECTION AS A RESULT OF THE PURGE, OR HAVE THEY BEEN ABLE TO
14 CONTINUE ALL OF THEIR OTHER ACTIVITIES JUST LIKE NORMAL?
15 MR. NORDBY: RENEW THE OBJECTION.
16 THE COURT: IT IS STILL LEADING.
17 BY MS. KAPLAN:
18 Q. MR. EWART, CAN YOU PLEASE DESCRIBE TO THE COURT HOW THE
19 PURGE HAS IMPACTED YOUR STAFF'S TIME AND HOW THEY'RE ABLE TO
20 DIRECT THEIR RESOURCES?
21 A. AS I SAID, THIS ISSUE COMES NOT NEW. BUT IN THE CONTEXT OF
22 A HISTORY OF CHALLENGES IN FLORIDA WITH OTHER PURGES, FELON
23 PURGES, OTHER PROBLEMS AT THE POLLS, THE WHOLE 2000 ELECTION WE
24 HAD SIGNIFICANT CYNICISM AMONG OUR MEMBERSHIP ABOUT THE --
25 ABOUT WHETHER PEOPLES' RIGHT TO VOTE IS RESPECTED AND WHETHER
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1 IT WOULD BE COUNTED.
2 SO THESE ARE COMPLICATED CONVERSATIONS. THE MORE
3 ISSUES WE HAVE TO DEAL WITH THEN THE FEWER OF THOSE
4 CONVERSATIONS WE CAN HAVE AND THE FEWER PEOPLE WE ARE ABLE TO
5 REACH. SO IF WE DIDN'T HAVE ANY OF THESE ISSUES TO DEAL WITH
6 WE WOULD JUST BE TALKING ABOUT HOW TO GET TO THE POLLS, WHEN
7 ARE YOU GOING TO VOTE. BUT IT THEN BECOMES A PERSUASION. NOT
8 A PERSUASION ABOUT THE ISSUES OR THE CANDIDATES, BUT PERSUASION
9 ABOUT THE PROCESS ITSELF, WHICH MAKES IT THAT MUCH MORE
10 DIFFICULT BECAUSE YOU'VE GOT TO DEAL WITH THAT BEFORE YOU GET
11 TO THE ISSUES AND CANDIDATES.
12 MS. KAPLAN: THANK YOU VERY MUCH.
13 NOTHING FURTHER, YOUR HONOR.
14 THE COURT: ANY RECROSS?
15 MR. NORDBY: NOTHING FURTHER.
16 THE COURT: MR. EWART, I JUST WANT TO MAKE SURE THAT I
17 HAVE UNDERSTOOD ONE POINT IN PARTICULAR CORRECTLY.
18 ON CROSS-EXAMINATION YOU INITIALLY SAID THAT ONLY
19 THREE MEMBERS OF YOUR UNION RECEIVED LETTERS, AND THEN IT WAS
20 POINTED OUT THAT MISS ARCIA DID NOT RECEIVE A LETTER. DID SHE
21 RECEIVE A LETTER OR NOT? IF YOU KNOW.
22 THE WITNESS: WHAT I UNDERSTAND IS THAT THOSE THREE
23 INDIVIDUALS MATCHED THE LIST OF APPROXIMATELY 26, 2,700, BUT
24 MISS ARCIA APPARENTLY DID NOT RECEIVE A LETTER BUT APPARENTLY
25 SHE WAS ON THE LIST.
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1 THE COURT: ALL RIGHT. THANK YOU VERY MUCH, SIR.
2 YOU MAY STEP DOWN. WATCH YOUR STEP, PLEASE.
3 THE WITNESS: THANK YOU, YOUR HONOR.
4 THE COURT: IS THE WITNESS EXCUSED BY THE PLAINTIFF?
5 MR. GOLDMAN: YES.
6 THE COURT: BY THE DEFENSE?
7 MR. NORDBY: YES, JUDGE.
8 THE COURT: YOU ARE FREE TO GO. THANK YOU, SIR.
9 CALL YOUR NEXT WITNESS.
10 MS. ROGERS: YOUR HONOR, MY NAME IS KRISTEN ROGERS
11 FROM JENNER & BLOCK. I WOULD LIKE TO CALL THE NEXT WITNESS.
12 THE COURT: GO RIGHT AHEAD.
13 PLEASE STEP UP TO THE WITNESS STAND.
14 PLEASE REMAINING STANDS AND RAISE YOUR RIGHT HAND.
15 (WITNESS SWORN)
16 THE WITNESS: I DO.
17 THE COURT: THANK YOU. PLEASE BE SEATED.
18 PLEASE SPEAK DIRECTLY INTO THAT MICROPHONE SO THAT WE
19 WILL BE ABLE TO HEAR YOU.
20 PLEASE STATE YOUR FULL LEGAL NAME FOR THE RECORD AND
21 SPELL YOUR LAST NAME FOR THE REPORTER.
22 THE WITNESS: MY NAME IS WILFREDO SEDA, AND IT'S
23 SPELLED S-E-D-A.
24 THE COURT: THANK YOU VERY MUCH.
25 YOU MAY PROCEED.
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1 WILFREDO SEDA,
2 BEING DULY SWORN, WAS EXAMINED AND TESTIFIED AS FOLLOWS:
3 DIRECT EXAMINATION
4 BY MS. ROGERS:
5 Q. MR. SEDA, COULD YOU PLEASE TELL THE COURT WHERE YOU LIVE?
6 A. I LIVE -- THE FULL ADDRESS?
7 THE COURT: NO. JUST WHAT CITY DO YOU LIVE IN?
8 THE WITNESS: MIAMI BEACH.
9 BY MS. ROGERS:
10 Q. AND ARE YOU AFFILIATED OR PARTICIPATING IN ANY CIVIC
11 ORGANIZATION?
12 A. YES. I AM THE PRESIDENT OF THE NATIONAL CONGRESS FOR
13 PUERTO RICAN RIGHTS, WHICH IS A NATIONAL ORGANIZATION THAT HAS
14 CHAPTERS IN DIFFERENT STATES AND PARTICULARLY HAS TWO IN
15 FLORIDA, ONE IN SOUTH FLORIDA AND ONE IN CENTRAL FLORIDA.
16 Q. AND CAN YOU TELL US ABOUT THE GOALS OF THIS ORGANIZATION
17 FOR US?
18 A. YES. THE GOALS OF THE ORGANIZATION, NUMBER ONE, IS TO
19 PROMOTE THE PROGRESS AND DEVELOPMENT OF THE PUERTO RICAN
20 COMMUNITY IN THE UNITED STATES, AND THAT HAPPENS THROUGH
21 LOOKING AT OUR CIVIL RIGHTS WHICH INCLUDES VOTING RIGHTS. ALSO
22 LOOKING AT SOCIOECONOMIC ISSUES THAT IMPACT THE COMMUNITY SUCH
23 AS ACADEMIC ACHIEVEMENT OF YOUTH, HEALTH CARE, AND OTHER
24 SOCIOECONOMIC ISSUES.
25 Q. WHAT DOES THE ORGANIZATION DO TO FURTHER ONE OF THOSE
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1 THINGS THAT YOU MENTIONED, SPECIFICALLY VOTING RIGHTS?
2 A. BASICALLY WE HAVE COMMUNITY FORUMS. WE DO OUTREACH AT
3 COMMUNITY EVENTS AND ACTIVITIES, AND WE PARTNER WITH OTHER
4 ORGANIZATIONS THAT ARE CREATING EVENTS THAT HELP PROMOTE VOTING
5 RIGHTS AND PROTECT VOTING RIGHTS.
6 Q. CAN YOU DESCRIBE FOR US THE STRUCTURE AND STAFFING OF NCPR?
7 A. OUR ORGANIZATION IS BASICALLY A VOLUNTEER ORGANIZATION.
8 NONE OF US GET ANY SALARIES, NONE OF OUR CHAPTER FOLKS GET ANY
9 SALARIES. JUST LIKE MANY OTHER ORGANIZATIONS WE RELY ON A GOOD
10 NUMBER OF FOLKS WITH THEIR WILLINGNESS AND THEIR INVESTMENT IN
11 THE COMMUNITY BY THEIR VOLUNTEER INITIATIVES.
12 Q. AND, MR. SEDA, DO YOU KNOW HOW MANY PUERTO RICANS ARE IN
13 FLORIDA?
14 A. IN FLORIDA THERE ARE APPROXIMATELY A HUNDRED -- I MEAN,
15 800,000.
16 Q. AND HOW MANY OF THOSE PUERTO RICANS ARE FROM PUERTO RICO?
17 A. WE WOULD -- PROBABLY ANYWHERE FROM 30 TO 35 PERCENT.
18 Q. NOW, YOU MENTIONED THAT YOU PARTICIPATE, OR THAT YOU
19 FURTHER VOTER PROTECTION EFFORTS. CAN YOU GENERALLY DESCRIBE
20 HOW -- HOW MUCH TIME AND RESOURCES OF YOUR ORGANIZATION YOUR
21 VOTER EFFORT TAKE UP GENERALLY?
22 A. GENERALLY ABOUT 30 PERCENT.
23 Q. AND THE REST IS DEDICATED TO WHAT?
24 A. AGAIN, LIKE I MENTIONED BEFORE, WORKING WITH ACADEMIC
25 ACHIEVEMENTS, PROMOTING ACADEMIC ACHIEVEMENT A YOUNG OUR YOUTH,
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1 LOOKING AT HEALTH CARE ISSUES AND JOBS AND EMPLOYMENT
2 OPPORTUNITIES.
3 Q. ARE YOU AWARE THAT THE STATE OF FLORIDA IS CURRENTLY
4 IMPLEMENTING TO REMOVE NON-CITIZENS FROM THE VOTER ROLLS THIS
5 YEAR?
6 A. YES.
7 Q. AND DO YOU KNOW OF A PUERTO RICAN WHO WAS IDENTIFIED TO BE
8 REMOVED FROM THE VOTER ROLLS?
9 A. NOT CURRENTLY. NO.
10 Q. AND WERE ANY OF YOUR MEMBERS IDENTIFY TO BE REMOVED?
11 A. NOT THAT I'M AWARE OF.
12 Q. IF THAT'S THE CASE ARE YOU IN ANY WAY STILL CONCERNED ABOUT
13 THIS PROGRAM?
14 A. YEAH. THE REASON FOR -- I MEAN, NUMBER ONE, WE BELIEVE
15 THAT EVERY CITIZEN SHOULD HAVE THEIR -- AN OPPORTUNITY TO VOTE
16 IF THEY'RE A CITIZEN. WITH THE PUERTO RICANS IT'S A LITTLE --
17 THIS IN THE LAST TWO YEARS AN ISSUE HAS ARISEN THAT COULD
18 IMPACT IF A PUERTO RICAN -- AND PUERTO RICAN ARE AMERICAN
19 CITIZENS WHETHER THEY'RE BORN IN THE U.S. OR NOT. LET ME MAKE
20 THAT CLEAR BECAUSE OF OUR RELATIONSHIP WITH THE UNITED STATES.
21 BUT ABOUT -- IN DECEMBER OF 2009 THE PUERTO RICAN LEGISLATURE
22 WITH THE GOVERNOR'S APPROVAL INVALIDATED ALL THE BIRTH
23 CERTIFICATES PRIOR TO DECEMBER OF 2009.
24 Q. CAN YOU EXPLAIN WHY?
25 A. WELL, THERE WAS -- THE THOUGHT WAS THAT ACCORDING TO A
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1 STUDY BY HOMELAND SECURITY THERE WAS AN INORDINATE AMOUNT OF
2 PASSPORTS OBTAINED THROUGH FRAUD USING PUERTO RICAN BIRTH
3 CERTIFICATES BECAUSE IN PUERTO RICO BIRTH CERTIFICATES, A LOT
4 OF ORGANIZATIONS WHETHER IT IS SCHOOLS, YOU KNOW, SPORTS CLUBS,
5 REQUEST A BIRTH CERTIFICATE.
6 SO THERE WAS A PREPONDERANCE OF BIRTH CERTIFICATES FOR
7 INDIVIDUAL ALL OVER THE ISLAND. SO BECAUSE OF THAT -- WELL,
8 HOMELAND SECURITY STUDY, THE LEGISLATURE DECIDED TO INVALIDATE
9 ALL BIRTH CERTIFICATES AND ASK PEOPLE TO RENEW THEIR BIRTH
10 CERTIFICATE IF THEY NEEDED AN OFFICIAL ONE FOR ANY TYPE OF
11 DOCUMENTATION MOVING FORWARD.
12 THE COURT: SIR, ALL CERTIFICATES PRIOR TO WHEN?
13 THE WITNESS: DECEMBER OF 2009.
14 THE COURT: THANK YOU.
15 BY MS. ROGERS:
16 Q. AND GENERALLY HOW LONG WOULD IT TAKE TO GET A NEW BIRTH
17 CERTIFICATE?
18 A. WELL, IN THE FIRST FEW MONTHS OF 2010 THE GOVERNMENT PUT
19 SOME RESOURCES TO TRY TO EXPEDITE THOSE VERY QUICKLY. RIGHT
20 NOW IT COULD TAKE ANYWHERE FROM TWO TO THREE MONTHS. IN FACT,
21 I CHECKED THIS MORNING THE WEB SITE THAT THE GOVERNMENT HAVE
22 PUT UP AND IT'S DOWN. THE WEB SITE THAT THEY PUT UP FOR
23 ACCESSING THE BIRTH CERTIFICATE ON THE INTERNET.
24 SO, IT'S RUNNING ABOUT TWO OR THREE MONTHS. THAT'S
25 WHY OUR CONCERN BECAUSE AS PUERTO RICANS THAT ARE U.S.
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1 CITIZENS, AND WE HAVE A GOOD NUMBER OF FOLKS THAT LIVE -- I
2 MEAN, WERE BORN IN PUERTO RICO BUT LIVE IN FLORIDA, THEM BEING
3 PUT ON ANY TYPE OF PURGED LIST.
4 Q. AND JUST TO CONFIRM, YOU SAID EARLIER THERE ARE 800,000
5 PUERTO RICANS?
6 A. RIGHT.
7 Q. AND OF THOSE RESIDENTS IN FLORIDA --
8 A. APPROXIMATELY ABOUT 30 PERCENT.
9 Q. OKAY.
10 A. SO, YOU KNOW, ROUGHLY AROUND, YOU KNOW, 200,000, YOU KNOW,
11 250. WE DIDN'T WANT -- WE WANTED TO MAKE SURE THAT NO PUERTO
12 RICANS, NUMBER ONE, WERE ON THAT LIST; AND, NUMBER TWO, THAT IF
13 THEY WERE ON THAT LIST THAT -- AND THEY DID NOT HAVE ANY
14 DOCUMENTATION AND THEY NEEDED A BIRTH CERTIFICATE THE WAY
15 THINGS -- THE TURN AROUND TIME FOR GETTING A BIRTH CERTIFICATE
16 THEY MIGHT NOT BE ABLE TO OBTAIN ONE IN A TIMELY FASHION TO BE
17 ABLE TO EITHER REGISTER TO VOTE OR PROVE THEIR CITIZENSHIP
18 BETWEEN NOW AND THE NOVEMBER ELECTIONS.
19 Q. AND IF YOU COULD JUST EXPLAIN FOR US, HAS THAT AFFECTED
20 YOUR RESOURCES AS AN ORGANIZATION? HAVE YOU MADE ANY DIFFERENT
21 CHOICES --
22 A. WELL, WE PUT TIME -- WE HAD TO DEVOTE TIME TO -- MORE TIME
23 IN TERMS OF, YOU KNOW, VOTER -- VOTING RIGHTS AND OUTREACH SO
24 THAT PEOPLE ARE AWARE THAT THIS POTENTIALLY MIGHT HAPPEN TO
25 THEM. AND IT'S BEEN KNOWN THAT, YOU KNOW, PUERTO RICANS HAVE
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1 BEEN PICKED UP BY ICE, NOT A WHOLE LOT BUT THERE HAVE BEEN --
2 THEY HAVE BEEN PICKED UP BY THE -- THE ICE OFFICIALS, AND WE
3 WANTED TO MAKE SURE THAT NOBODY CAUGHT UP IN THAT NET OR WEB.
4 MS. ROGERS: NOTHING FURTHER AT THIS TIME.
5 THE COURT: CROSS-EXAMINATION.
6 CROSS EXAMINATION
7 BY MR. NORDBY:
8 Q. GOOD MORNING, MR. SEDA.
9 A. GOOD MORNING.
10 Q. WHAT IS THE BUDGET OF YOUR ORGANIZATION?
11 A. OUR BUDGET IS APPROXIMATELY BETWEEN 30, 35,000.
12 Q. YOU MENTIONED 800,000 PUERTO RICANS IN THE STATE OF
13 FLORIDA. THOSE AREN'T YOUR MEMBERSHIP NUMBERS --
14 A. NO, OF COURSE NOT. OUR MEMBERSHIP IN FLORIDA IS PROBABLY
15 ABOUT 60, 70.
16 Q. SIXTY OR 70?
17 A. INDIVIDUALS, YEAH.
18 Q. SIXTY, 70,000 OR 60 --
19 A. NO. SIXTY TO 70 INDIVIDUALS.
20 Q. ARE ANY OF THOSE 60 OR 70 INDIVIDUALS, HAVE ANY OF THEM HAD
21 THEIR NAMES APPEAR ON ANY LIST --
22 A. NO.
23 Q. -- OF POTENTIAL INELIGIBLE CITIZENS?
24 A. NO.
25 Q. YOU MENTIONED THIS MORNING AND IN YOUR AFFIDAVIT CONCERNS
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1 ABOUT PUERTO RICAN BIRTH CERTIFICATES.
2 HAVE ANY OF YOUR MEMBERS OR ANY NONMEMBERS CONTACTED
3 YOUR ORGANIZATIONS AND INDICATED THAT THIS IS A PROBLEM FOR
4 THEM?
5 A. A PROBLEM IN REGARDS TO?
6 Q. HAVE ANY NONMEMBERS OF YOUR ORGANIZATION CONTACTED YOUR
7 ORGANIZATION AND EXPRESSED THIS PROBLEM TO YOU THAT THEY APPEAR
8 ON A LIST BUT CAN'T GET A BIRTH CERTIFICATE?
9 A. ON THE PURGE LIST.
10 Q. ON A LIST OF POTENTIAL NON-CITIZENS.
11 A. NO.
12 Q. THIS IS JUST SPECULATION ON YOUR PART THAT THIS MIGHT PROVE
13 TO BE A PROBLEM AT SOME POINT?
14 A. YEAH. IT'S -- IT'S A CONCERN OF OURS THAT WE WANT TO AVOID
15 FOLKS EVEN TO BEING ON THAT LIST TO BEGIN WITH. SECONDLY, IF
16 THEY'RE ON THE LIST THEN FIND A REMEDY FOR THEM TO BE ABLE TO
17 EXERCISE THEIR RIGHTS.
18 Q. WOULD IT SOLVE THAT CONCERN IF SUPERVISORS OF ELECTIONS
19 WOULD ACCEPT OTHER EVIDENCE OF CITIZENSHIP OTHER THAN BIRTH
20 CERTIFICATES?
21 A. WILL, THE PROBLEM IS I DON'T KNOW WHAT OTHER FOR THIS
22 PURPOSE DOCUMENTS THEY NEED.
23 Q. FOR EXAMPLE, IF A SUPERVISOR OF ELECTIONS WOULD TAKE A
24 SWORN STATEMENT BY A PERSON SAYING THAT THEY ARE A CITIZEN AND
25 THEY ARE AN ELIGIBLE TO VOTE WOULD THAT RESOLVE YOUR PROBLEM
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1 ABOUT THE BIRTH CERTIFICATE?
2 A. IF THAT VOTE IS EVENTUALLY COUNTED THAT -- YOU KNOW, THAT'S
3 AN OPTION THAT'S THERE.
4 Q. DID SOMEONE ADVISED YOU THAT ONLY BIRTH CERTIFICATES ARE
5 PERMISSIBLE AS A WAY OF DEMONSTRATING CITIZENSHIP?
6 A. WELL, NO. AND THE ISSUE FOR US WITH THE BIRTH CERTIFICATE
7 IS WE KNOW THAT THERE ARE A LOT OF -- YOU KNOW, FOR EXAMPLE, TO
8 GO BETWEEN PUERTO RICO AND THE UNITED STATES YOU DON'T NEED A
9 PASSPORT. SO OTHER FOLKS MIGHT HAVE PASSPORTS AND SOME MIGHT
10 NOT.
11 SO, IF YOU HAVE A PASSPORT OBVIOUSLY THAT'S A GENERAL
12 FORM OF DOCUMENTATION THAT IS ACCEPTED. AND IF YOU HAVE -- A
13 DRIVER'S LICENSE, BUT THERE ARE FOLKS THAT NEITHER HAVE NEITHER
14 NOR PASSPORT. SO OUR CONCERN IS ABOUT THOSE FOLKS THAT PERHAPS
15 MIGHT NEED THAT BIRTH CERTIFICATE TO SHOW THAT THEY'RE AN
16 AMERICAN CITIZEN.
17 Q. HOW LONG HAS YOUR ORGANIZATION BEEN IN EXISTENCE?
18 A. SINCE 1980.
19 Q. YOU MENTIONED A VARIETY OF ACTIVITIES IN WHICH YOU'RE
20 INVOLVED, HEALTH CARE, EDUCATION, AND VOTING RIGHTS. IS IT
21 FAIRLY TYPICAL IN AN ELECTION YEAR FOR ELECTIONS AND VOTING
22 ISSUES TO BECOME MORE PROMINENT WITH YOUR ORGANIZATION?
23 A. USUALLY NOT. WE DO A LOT OF VOTING RIGHTS ALONG THROUGHOUT
24 THE YEAR. BUT WITH THIS CASE WE WANTED TO -- WE NEEDED TO
25 INVEST MORE TIME SO THAT WE CAN CLARIFY, BECAUSE THERE WERE ALL
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1 SORTS OF RUMORS RUNNING AROUND ON -- FROM THE COMMUNITY ON WHAT
2 THIS MIGHT -- HOW IT MIGHT IMPACT ON THE ABILITY OF PUERTO
3 RICANS TO PARTICIPATE IN AND EXERCISE THEIR VOTING RIGHTS.
4 Q. OTHER THAN YOUR PARTICIPATION IN THIS LAWSUIT WHAT
5 ACTIVITIES HAS YOUR ORGANIZATION ENGAGED IN WITH REGARD TO THIS
6 LIST OF POTENTIAL NON-CITIZENS?
7 A. THIS HAS BEEN THE MAJORITY FOCUS IN TERMS OF -- WE HAVE HAD
8 TO DOUBLE OUR EFFORTS BASICALLY IN TERMS OF VOTING RIGHTS.
9 Q. WHEN YOU SAY, A MAJORITY FOCUS, WHAT OTHER ACTIVITIES OTHER
10 THAN THIS LAWSUIT HAS YOUR ORGANIZATION CONDUCTED WITH REGARD
11 TO THIS LIST OF POTENTIAL NON-CITIZENS? HAVE YOU SENT OUT
12 MAILERS, BOUGHT ADVERTISING?
13 A. WELL, WE HAVE A LIMITED BUDGET FOR ADVERTISING. MOST OF
14 OUR WORK IS THROUGH GRASS-ROOTS ORGANIZING, COMMUNITY FORUMS,
15 EVENTS AND ACTIVITIES.
16 Q. HOW MANY COMMUNITY FORUMS HAVE YOU HELD ON THIS?
17 A. ON THIS ISSUE? PROBABLY ABOUT 10.
18 Q. IS THAT FAIRLY TYPICAL THE ORGANIZATION HOLDS COMMUNITY
19 FORUMS?
20 A. YEAH. YES.
21 Q. IS THERE ANYTHING THAT YOUR ORGANIZATION ISN'T DOING THAT
22 IT WOULD ORDINARILY BE DOING AS A RESULT OF THIS?
23 A. WELL, BECAUSE -- AGAIN, WE ARE A VOLUNTEER ORGANIZATION
24 THIS ISSUE IS DIVERTING SOME TIME AND ENERGY FROM SOME OF THE
25 OTHER ISSUES. AS I MENTIONED, PROMOTING ACADEMIC EXCELLENCE,
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1 LOOKING AT THE HEALTH CARE SCENARIO AND THE IMPACT OF THAT ON
2 OUR COMMUNITY.
3 Q. WHAT SPECIFICALLY ARE YOU NOT DOING WITH REGARD TO
4 EDUCATIONAL EXCELLENCE THAT YOU WOULD OTHERWISE BE DOING?
5 A. WELL, LOOKING AT -- MORE IN FOCUS IN SOME OF OUR
6 COMMUNITIES HOW THE EDUCATIONAL SYSTEM CAN IMPROVE AND BE ABLE
7 TO BETTER SERVE THE COMMUNITY.
8 Q. CAN YOU GIVE ME A SPECIFIC EXAMPLE OF SOMETHING THAT YOU
9 ARE NOT DOING THAT YOU WOULD OTHERWISE BE DOING?
10 A. WELL, AS I MENTIONED, SOME OF THOSE SOCIOECONOMIC ISSUES
11 WERE NOT WORKING AS INTENSELY ON BECAUSE OF THIS SCENARIO.
12 Q. DOES YOUR ORGANIZATION HAVE ANY INTEREST IN ENSURING THAT
13 ADMITTED NON-CITIZENS REMAIN ON THE VOTER ROLLS?
14 A. IF WE HAVE WHAT?
15 Q. IF SOMEONE ADMITS THAT HE OR SHE IS A NON-CITIZEN DOES YOUR
16 ORGANIZATION HAVE ANY INTEREST IN ENSURING THAT THEY REMAIN ON
17 THE VOTER ROLLS?
18 A. NO.
19 Q. OKAY. IS IT FAIR TO SAY THAT YOUR ORGANIZATION'S CONCERN
20 IS WITH THE ACCURACY OF THE PROCESS THAT THE STATE IS USING TO
21 IDENTIFY POTENTIAL NON-CITIZENS?
22 A. THAT'S THE -- YES.
23 Q. DO YOU HAVE ANY BASIS FOR CLAIMING THAT THE CURRENT PROCESS
24 USING MULTIPLE STATE AND FEDERAL DATA BASIS ISN'T THE MOST
25 ACCURATE PROCESS THAT COULD BE DEVISED?
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1 A. I AM NOT AN EXPERT IN DETERMINING AND PUTTING TOGETHER
2 LISTS. SO I CAN'T -- I COULDN'T HONESTLY SAY IF THE STATE'S
3 PROCESS AND METHOD IS THE MOST ACCURATE AND DEFINITIVE THAT IT
4 COULD BE.
5 Q. SO YOU ARE NOT AWARE OF ANY MORE ACCURATE PROCESS THAT THE
6 STATE COULD PUT IN PLACE THAN THE ONE IT HAS DEVISED?
7 A. I DO NOT CLAIM TO BE AN EXPERT IN PUTTING TOGETHER VOTING
8 LISTS AND PURGING INDIVIDUALS.
9 MR. NORDBY: NO FURTHER QUESTIONS.
10 THE COURT: REDIRECT?
11 MS. ROGERS: YOUR HONOR, WE HAVE NO FURTHER QUESTIONS.
12 THE COURT: MR. SEDA, THANK YOU VERY MUCH, SIR. YOU
13 MAY STEP DOWN. WATCH YOUR STEP, PLEASE.
14 IS THE WITNESS EXCUSED BY THE PLAINTIFF?
15 MR. GOLDMAN: YES.
16 THE COURT: BY THE DEFENSE?
17 MR. NORDBY: YES, JUDGE.
18 THE COURT: THANK YOU, SIR. YOU ARE FREE TO GO.
19 CALL YOUR NEXT WITNESS.
20 MR. GOLDMAN: WE HAVE NO ADDITIONAL WITNESSES, YOUR
21 HONOR.
22 THE COURT: THE PLAINTIFF RESTS?
23 MR. GOLDMAN: WE DO.
24 THE COURT: ANY TESTIMONY FROM THE DEFENSE?
25 MR. CARVIN: NO, YOUR HONOR.
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1 THE COURT: THE DEFENSE RESTS? ALL RIGHT.
2 LET ME HEAR ARGUMENT FROM THE PLAINTIFF.
3 MR. GOLDMAN: GOOD AFTERNOON, YOUR HONOR.
4 I WANT TO BEGIN BRIEFLY BY SAYING I THINK THAT THIS
5 HEARING IS SUFFICIENT TO RESOLVE THE MOTION FOR SUMMARY
6 JUDGMENT AS WELL AS THE PRELIMINARY INJUNCTION.
7 WE AGREE WITH THE DEFENDANT THAT THE STATUTORY ISSUE
8 IS A PURELY AN ISSUE OF LAW. SO THE ONLY FACTUAL QUESTION HERE
9 IS THE ONE IN WHICH WE PUT ON TESTIMONY HERE THIS MORNING, ONE
10 OF STANDING. AND WE, IN OUR STATEMENT OF UNDISPUTED FACTS,
11 INCLUDED -- ACCOMPANYING OUR MOTION INCLUDED FACTS SUFFICIENT
12 TO ESTABLISH STANDING WITH RESPECT TO THESE ORGANIZATIONS, AS
13 WELL AS THE INDIVIDUAL PLAINTIFFS. I WILL TALK ABOUT THAT MORE
14 LATER.
15 THE DEFENDANT DID NOT DISPUTE -- WELL, THEY SAY THEY
16 DISPUTED THAT FACT BUT AT THE SAME TIME THEY SAID WE HAVE
17 INSUFFICIENT INFORMATION TO KNOW ONE WAY OR ANOTHER THE
18 ACCURACY OF THOSE STATEMENTS. IN THEIR TRIAL EXHIBIT LIST THEY
19 SAID THEY DID NOT HAVE ANY WITNESSES TO PUT ON EXCEPT POSSIBLY
20 REBUTTAL WITNESSES. SO, AS LONG AS THE STATEMENT OF UNDISPUTED
21 FACTS THAT THEY GAVE IN ACCORDANCE WITH OUR MOTION IS
22 SUFFICIENT TO ESTABLISH STANDING I DON'T THINK THERE IS ANY
23 FACTUAL ISSUE THAT WOULD PREVENT THE NEED TO ENTER SUMMARY
24 JUDGMENT HERE.
25 WITH THAT AS PRELUDE, I WANT TO TURN TO THE SUBSTANCE.
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1 DESPITE A HISTORY OF INACCURATE VOTER PURGES IN FLORIDA, THE
2 DEFENDANT HAS DECIDED TO CONDUCT A NEW PURGE USING A NEVER
3 BEFORE TRIED METHOD WITHIN 90 DAYS OF A FEDERAL ELECTION. THAT
4 IS EXACTLY WHAT THE NDRA IS DESIGNED TO PROHIBIT.
5 CONGRESS ENACTED THE NDRA BECAUSE IT WAS CONCERNED
6 ABOUT A DECLINE IN VOTING AND IT TOOK STEPS TO REMEDY THAT IN
7 TWO WAYS. IT TOOK STEPS TO INCREASE THE NUMBER OF REGISTERED
8 VOTERS, AND IT TOOK STEPS TO LIMIT THE REMOVAL OF VOTERS WHO
9 WERE ON THE VOTER ROLLS.
10 DEFENDANT ACKNOWLEDGED -- WELL, ONE OF THOSE STEPS WAS
11 TO ENACT WHAT WE HAVE CALLED THE 90 DAY PROVISION, A PROVISION
12 THAT LIMITS SYSTEMATIC PURGES OF THE VOTER ROLLS WITHIN 90 DAYS
13 OF AN ELECTION. DEFENDANT -- THAT PROVISION TALKS ABOUT ANY
14 PURGES.
15 EVEN UNDER DEFENDANT'S INTERPRETATION, THOUGH, THEY
16 SAY THAT CONGRESS DID LIMIT ONE TYPE OF PURGES, PURGES FOR
17 INDIVIDUALS WHO MOVE FROM ONE ADDRESS TO ANOTHER WITHIN 90 DAYS
18 OF AN ELECTION. BUT THOSE INDIVIDUALS OFTEN ARE A TYPE OF
19 NON-CITIZENS, PEOPLE WHO MOVE FROM FLORIDA TO A DIFFERENT
20 STATE. SO, UNDER THEIR OWN INTERPRETATION THEY ACKNOWLEDGE
21 THAT CONGRESS PROHIBITED SYSTEMATIC PURGES OF A TYPE OF
22 NON-CITIZENS. SOMEHOW THEY SAY THAT IS THE ONLY TYPE OF PURGE
23 THAT CONGRESS PROHIBITED, BUT THEY DON'T ROOT THAT
24 INTERPRETATION IN THE TEXT OF THE STATUTE IT ALL.
25 AGAIN, THE 90 DAY PROVISION IS INTENDED TO ENSURE --
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1 TO TAKE INTO ACCOUNT TWO KINDS OF RISK. IF YOU DO A BIG
2 SYSTEMATIC GOVERNMENT PROGRAM THERE ARE RISKS THAT'S GOING TO
3 BE INACCURATE. THAT'S WHAT THE HISTORY SHOWS, THAT'S WHAT
4 CONGRESS UNDERSTOOD. THERE IS ALSO RISKS THAT'S GOING TO BE
5 DISCRIMINATORY BECAUSE THEY MIGHT PICK SOME VOTERS, LIKE THE
6 2,600 OR 2,700 TO TEST OUT RATHER THAN OTHERS.
7 AGAIN, THE TEXT -- THE TEXT HERE, AND WE PUT IT UP
8 BECAUSE WE ARE GOING TO REFER TO IT, SAYS THAT A STATE SHALL
9 NOT -- SHALL COMPLETE NOT LATER THAN 90 DAYS PRIOR TO THE DATE
10 OF A PRIMARY OR GENERAL ELECTION FOR FEDERAL OFFICE ANY
11 PROGRAM, THE PURPOSE OF WHICH IS TO SYSTEMICALLY REMOVE THE
12 NAMES OF INELIGIBLE VOTERS FROM THE OFFICIAL LIST OF ELIGIBLE
13 VOTERS.
14 THE SUPREME COURT HAS REPEATEDLY SAID IN CASE AFTER
15 CASE THAT STATUTORY INTERPRETATION WHEN THE PLAIN MEANING --
16 WHEN THE PLAIN MEANING OF A STATUTE IS CLEAR, STATUTORY
17 INTERPRETATION --
18 THE COURT: HAVE YOU SHOWN THAT TO COUNSEL?
19 MR. GOLDMAN: I TOLD HIM THAT WE WERE PUTTING UP AN
20 EXHIBIT WITH THE TEXT.
21 MR. CARVIN: I CERTAINLY DON'T MEAN TO INTERRUPT.
22 YOU DO HAVE THE EXCEPTIONS TO THAT.
23 MR. GOLDMAN: WE DO.
24 MR. CARVIN: ALL RIGHT.
25 MR. CARVIN: I APOLOGIZE.
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1 THE COURT: THAT IS FINE.
2 MR. GOLDMAN: TO GO BACK. THE SUPREME COURT HAS
3 REPEATEDLY SAID THAT WHEN THE PLAIN MEANING OF A STATUTORY
4 PROVISION IS CLEAR, STATUTORY INTERPRETATION BEGINS AND ENDS
5 WITH THE MEANING OF THAT STATUTE. CONGRESS SPEAKS THROUGH ITS
6 WORDS.
7 HERE DEFENDANTS DO NOT EVEN WANT TO BEGIN WITH THE --
8 WITH THE MEANING -- WITH THE PLAIN MEANING OF THE STATUTE.
9 THEY OFFER AN INTERPRETATION OF THAT PROVISION THAT DOESN'T
10 RELY ON A SINGLE WORD. THERE IS NOT A WORD IN THEIR BRIEF THAT
11 SAYS THAT SUB-SECTION A OF THAT STATUTE THAT THERE IS A WORD IN
12 THAT PROVISION THAT CAN BE INTERPRETED THAT ALLOWS THEM TO --
13 THAT ALLOWS THEM TO SAY THAT THE PURGE IN WHICH THEY WANT TO
14 ENGAGE OF WHAT THEY TERMED NEVER ELIGIBLE VOTERS AS OPPOSED TO
15 ONES ELIGIBLE VOTERS IS PERMITTED.
16 THEY DON'T SAY THAT THIS IS NOT A REMOVAL. THEY DON'T
17 SAY PEOPLE THERE -- THAT THE PURPOSE OF WHAT THEY'RE TRYING TO
18 DO IS NOT TO SYSTEMICALLY REMOVE THE NAMES OF INELIGIBLE
19 VOTERS. THEY'RE DON'T SAY THAT THE PEOPLE THEY'RE TRYING TO
20 REMOVE NOT ON THE OFFICIAL LIST OF ELIGIBLE VOTERS. THEY DON'T
21 POINT TO A SINGLE WORD IN THAT PROVISION.
22 NOWHERE IN THEIR BRIEF DO THEY POINT TO ANY EXAMPLE OF
23 STATUTORY INTERPRETATION THAT DOES WHAT THEY SAY YOU SHOULD DO,
24 WHICH IS TO READ AN EXCEPTION INTO THE STATUTE NOT BASED ON ITS
25 WORDS, BUT TO JUST SAY, IT DOESN'T MEAN THIS. IT DOESN'T APPLY
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1 AT ALL TO REMOVAL OF PEOPLE WHO WERE NEVER ELIGIBLE TO VOTE IN
2 THE FIRST PLACE BUT WHO WERE ON THE OFFICIAL LIST OF ELIGIBLE
3 VOTERS.
4 NOR DO THEY EXPLAIN HOW THAT WOULD BE CONSISTENT WITH
5 THE SORT OF OBVIOUS PURPOSE OF THAT STATUTORY PROVISION. THAT
6 PROVISION ON ITS FACE IS AIMED AT THE RISKS ASSOCIATED WITH
7 SYSTEMATIC PURGES ON ELIGIBLE VOTERS. THEY DON'T EVER EXPLAIN
8 WHY THAT RISK IS ANY DIFFERENT, DEPENDING ON WHETHER THE PEOPLE
9 THAT THEY'RE TRYING TO REMOVE ARE INELIGIBLE BECAUSE THEY
10 WERE -- THEY HAVE BECOME INELIGIBLE OR ARE INELIGIBLE BECAUSE
11 THEY WERE INELIGIBLE IN THE FIRST PLACE, NOR IS THE HARM OF
12 ALLOWING INELIGIBLE VOTER ANY DIFFERENT IF THE PERSON WAS NEVER
13 ELIGIBLE TO VOTE FROM A PERSON WHO IS CURRENTLY ELIGIBLE TO
14 VOTE. SO THEY OFFER NO INTERPRETATION OF THIS PROVISION THAT
15 IS CONSISTENT WITH THE WORDS, OR EVEN RELIES AT ALL ON THE
16 WORDS, OR IS CONSISTENT WITH THE OBVIOUS PURPOSE OF THAT
17 PROVISION.
18 INSTEAD WHAT THEY TRY TO DO IS -- IS BASED ON -- BASED
19 ON AN INTERPRETATION ON THE NEED TO READ AN EXCEPTION INTO A
20 DIFFERENT PROVISION, WHAT WE HAVE TERMED THE GENERAL REMOVAL
21 PROVISION.
22 WE'VE OFFERED AN INTERPRETATION OF THAT PROVISION THAT
23 WOULD ALLOW STATES TO REMOVE NON-CITIZENS OR OTHER PEOPLE WHO
24 WERE NEVER ELIGIBLE TO VOTE FROM THE VOTER ROLLS AS LONG AS
25 THEY DO SO IN A NON-SYSTEMATIC WAY OR OUTSIDE THE 90 DAYS OF
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1 THE ELECTION. THEY SAY, WELL, THAT'S INCONSISTENT WITH THE
2 PLAIN LANGUAGE OF THE GENERAL REMOVAL PROVISION.
3 LET'S ASSUME THAT'S RIGHT. LET'S ASSUME THAT THE
4 GENERAL REMOVAL PROVISION ALSO BARS REMOVAL OF NON-CITIZENS.
5 WELL, THE FIRST OBVIOUS THING YOU WOULD THINK IS, THAT IS
6 ANOTHER REASON WHY WE WIN. THAT'S ANOTHER REASON WHY THEY
7 CAN'T DO WHAT THEY'RE DOING HERE. THEY SAY THAT RESULT IS
8 ABSURD. THAT IT WOULD BE ABSURD TO DO THE GENERAL REMOVAL
9 PROVISION TO PRECLUDE REMOVAL OF NON-CITIZENS AT SOME POINT IN
10 TIME OUTSIDE THE 90 DAYS.
11 WELL, FIRST OF ALL, IT'S NOT AT ALL CLEAR THAT THAT IS
12 ABSURD. THAT IF YOU NEED TO READ AN EXCEPTION INTO THAT
13 PROVISION IT ACTUALLY WOULD BE ABSURD. CONGRESS PROVIDED IT'S
14 A FELONY IF YOU REGISTER TO VOTE AND YOU ARE NOT IN FACT A
15 CITIZEN. CONGRESS ALSO PROVIDED THAT IT IS A FELONY IF YOU
16 VOTE ON -- AND YOU ARE -- AND YOU ARE NOT A CITIZEN. SO,
17 CONGRESS MAY WELL HAVE THOUGHT THAT THAT WAS SUFFICIENT.
18 BUT, IN ANY CASE, LET'S ACCEPT THAT IT WOULD BE
19 ABSURD. WE CERTAINLY AGREE THAT THERE IS A COMMON SENSE
20 INTUITION THAT CONGRESS WOULD HAVE THOUGHT THERE NEEDS TO BE A
21 WAY TO REMOVE NON-CITIZENS IF THEY HAPPENED TO GET ON THE VOTER
22 ROLLS AT SOME POINT IN TIME.
23 BUT LET'S ACCEPT THAT INTUITION. WHERE DOES IT GET
24 YOU? WELL, ONE THING IT MIGHT GET YOU IS TO DO WHAT WE
25 SUGGEST, TO READ THE TERM OF THAT PROVISION, THE GENERAL
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1 REMOVAL PROVISION TO ALLOW REMOVAL OF NON-CITIZENS. THE MOST
2 OBVIOUS CANDIDATE IS REGISTERING. AND WE EXPLAIN WHY YOU CAN
3 READ THE TERM REGISTRANT TO SAY THAT IT ALLOWS REMOVAL OF
4 PEOPLE WHO WERE NEVER ELIGIBLE TO VOTE IN THE FIRST PLACE.
5 THEY SAY THAT'S A BAD INTERPRETATION. IT'S
6 INCONSISTENT WITH THE PLAIN MEANING OF REGISTRANT. AGAIN,
7 LET'S SAY THAT'S TRUE. BUT IF YOU ARE TRYING TO READ THE
8 PROVISION INCONSISTENT WITH AVOIDING REMOVAL, THAT'S A
9 REASONABLE WAY OF DOING IT AND IT AVOIDS ALL OF THESE OTHER
10 CONSEQUENCES THAT -- THAT WE ARE -- I'M GOING TO TALK ABOUT IN
11 A MINUTE.
12 SECONDLY, THE SECOND OBVIOUS ALTERNATIVE WOULD BE TO
13 READ AN EXCEPTION INTO THAT PROVISION TO SAY, LOOK, IT'S ABSURD
14 CONGRESS -- CONGRESS MUST NOT HAVE THOUGHT ABOUT REMOVAL OF
15 NON-CITIZENS WITH RESPECT TO THIS PROVISION, AND EVEN IF THE
16 RESULT IS ABSURD WE ARE GOING TO READ AN EXCEPTION INTO THAT
17 PROVISION. OKAY. LET'S SAY THAT YOU DO THAT. LET'S SAY YOU
18 DO IT WHAT THEY SAY, WHICH IS TO READ THE PROVISION TO ALLOW
19 REMOVAL OF ANYBODY WHO WAS NEVER ELIGIBLE TO VOTE IN THE FIRST
20 PLACE. THEY STILL DON'T EXPLAIN AT ALL WHY THERE IS A LINK
21 BETWEEN DOING THAT AND READING THE EXCEPTION INTO THE 90 DAY
22 PROVISION.
23 WE CITE IN OUR BRIEF THE CASE OF UNITED STATES VERSUS
24 RON PARR. AND THAT CASE SAYS THAT THE PLAIN MEANING OF
25 LEGISLATION SHOULD BE CONCLUSIVE EXCEPT IN THE RARE CASES IN
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1 WHICH THE LITERAL APPLICATION OF A STATUTE WILL PRODUCE A
2 RESULT DEMONSTRABLY AT ODDS WITH THE INTENTION OF THE DRAFTERS.
3 NOW, THEIR ARGUMENT, THEREFORE, HAS TO BE THAT BECAUSE
4 THERE IS A NEED TO READ AN EXCEPTION INTO THE GENERAL REMOVAL
5 PROVISION IN THEIR VIEW, THAT INDICATES THAT IT'S DEMONSTRABLY
6 AT ODDS WITH THE INTENTION OF THE DRAFTERS TO READ THE 90 DAY
7 PROVISION TO MEAN EXACTLY WHAT IT SAYS.
8 BUT TO REPEAT, THERE IS NO REASON TO THINK THAT AT
9 ALL. THE MOST OBVIOUS READING OF THE CONGRESS' PURPOSE HERE IS
10 THAT IT INTENDED TO BAR ANY SYSTEMATIC PURGE. THAT'S WHAT IT
11 SAYS, ANY PROGRAM THE PURPOSE OF WHICH IS TO SYSTEMICALLY
12 REMOVE THE NAMES OF INELIGIBLE VOTERS.
13 THE COURT: AND THAT IS WHAT YOU ARE ASKING THE COURT
14 TO DO.
15 MR. GOLDMAN: YES. TO PRECLUDE -- PRECLUDE THEM FROM
16 ENGAGING IN A SYSTEMATIC PURGE WITHIN 90 DAYS OF THE ELECTION.
17 THE COURT: I MEAN, SPECIFICALLY IN YOUR WRITTEN
18 SUBMISSION, YOUR MOTION FOR PRELIMINARY INJUNCTION, ON PAGE TWO
19 -- DOCKET ENTRY NUMBER 65, PAGE TWO, NUMBER TWO, YOU ARE ASKING
20 THE COURT TO ENJOINING THE DEFENDANT FROM CONDUCTING ANY
21 SYSTEMATIC PURGES AIMED AT INELIGIBLE VOTERS, PAREN, INCLUDING
22 NON-CITIZENS, CLOSE PAREN, PRIOR TO THE NOVEMBER 6TH FEDERAL
23 ELECTION. THEN IT GOES ON.
24 I GUESS MY QUESTION AT THIS POINT TO YOU WOULD BE, HOW
25 COULD THE COURT ENJOIN A PROGRAM THAT WOULD AFFECT NON-CITIZENS
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1 WHO BY THEIR -- THAT VERY STATUS HAVE NO LEGALLY COGNIZABLE
2 INJURY?
3 MR. GOLDMAN: WELL, WE ARE NOT ARGUING THAT
4 NON-CITIZENS HAVE ANY LEGALLY COGNIZABLE INJURY. BUT CITIZENS
5 DO. THE WHOLE PURPOSE OF THIS PROVISION IS TO PROTECT
6 CITIZENS.
7 IF -- IF UNDER A READING THAT SAYS YOU CAN NEVER
8 ENJOIN A PURGE AIMED AT NON-CITIZENS, OR AT ANYBODY WHO IS
9 INELIGIBLE VOTE, THE 90 DAY PROVISION HAS NO MEANING. THE 90
10 DAY PROVISION SAYS THEY CAN'T SYSTEMATICALLY PURGE -- ENGAGE IN
11 PURGES AIMED AT INELIGIBLE CITIZENS -- VOTERS. THAT'S TRUE
12 WHETHER IT'S NON-CITIZENS, WHETHER IT'S SOMEBODY WHO HAS MOVED
13 OUT OF THE DISTRICT, WHETHER IT'S SOMEBODY WHO HAS MOVED TO
14 ANOTHER STATE AND IS THEREFORE A NON-CITIZEN, WHETHER IT IS
15 SOMEBODY WHO HAS DIED, AND SO FORTH.
16 CONGRESS OBVIOUSLY SAID THOSE SYSTEMATIC PURGES CAN BE
17 ENJOINED, AND IT PROVIDED A PRIVATE CAUSE OF ACTION TO ALLOW
18 THAT TYPE OF INJUNCTION. AND, SO --
19 THE COURT: BUT LET ME JUST AGAIN ASK YOU ON THAT
20 POINT. FOR EXAMPLE, ON PAGE 14 OF YOUR WRITTEN SUBMISSION,
21 DOCKET ENTRY 65, YOU SAY IN FOOTNOTE NINE, AND INDEED THE
22 PLAINTIFFS BELIEVE NON-CITIZENS MAY BE REMOVED FROM THE VOTING
23 ROLLS WITHIN, WITHIN 90 DAYS OF THE FEDERAL ELECTION AS LONG AS
24 THE REMOVAL IS NOT PART OF A SYSTEMATIC PROGRAM AS IT IS HERE.
25 AND, SO MY QUESTION WOULD BE WHAT PROVISION OF SECTION
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1 EIGHT OF THE NATIONAL VOTER REGISTRATION ACT WOULD THEM GIVE
2 THE STATE THE ABILITY TO REMOVE NON-CITIZENS?
3 MR. GOLDMAN: WELL, AGAIN, OUR VIEW IS THAT THE
4 GENERAL REMOVAL PROVISION -- THE GENERAL REMOVAL PROVISION
5 PERMITS REMOVAL OF NON-CITIZENS AS ONLY MODIFIED BY THE 90 DAY
6 PROVISION. THE GENERAL -- AND WE GET THERE BY INTERPRETATION
7 OF THE TERM RESTAURANT, AND SAYING REGISTRANT MEANS ONLY
8 SOMEBODY WHO WAS ELIGIBLE TO VOTE AT THE TIME THAT THEY
9 SUBMITTED A REGISTRATION FORM.
10 SO, OUR VIEW -- AND AGAIN, IF YOU DON'T BUY THAT YOU
11 COULD ALSO READ AN EXCEPTION INTO THAT PROVISION.
12 ALTERNATIVELY YOU CAN READ IT TO SAY, NON-CITIZENS CAN EVER BE
13 REMOVED AT ANY POINT IN TIME. WE THINK THAT NON-CITIZENS CAN
14 BE REMOVED AT SOME POINT IN TIME. I DON'T THINK WE NEED TO WIN
15 THAT ARGUMENT IN ORDER TO WIN HERE, BUT WE THINK THEY CAN BE.
16 AND THE 90 DAY PROVISION WHAT IT BARS IS ANY PROGRAM
17 THE PURPOSE OF WHICH IS TO SYSTEMICALLY REMOVE THE NAMES OF
18 INELIGIBLE VOTERS. SO, IF THEY GOT AN INDIVIDUAL NAME BY, YOU
19 KNOW, SOMEBODY COMING AND SAYING, I'M A NON-CITIZEN, AS OPPOSED
20 TO ADOPTING A PROGRAM, THE PURPOSE OF WHICH IS TO SYSTEMICALLY
21 REMOVE NON-CITIZENS, THAT PERSON COULD BE REMOVED IN OUR VIEW.
22 THE COURT: WELL, WHAT PROGRAM WOULD BE CONSIDERED
23 NON-SYSTEMATIC?
24 MR. GOLDMAN: WELL, I THINK --
25 THE COURT: I MEAN, ANYTHING THE STATE WOULD DO WOULD
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1 BE CONSIDERED SYSTEMATIC.
2 MR. GOLDMAN: WELL, I DON'T THINK THAT'S NECESSARILY
3 TRUE. I THINK THAT --
4 THE COURT: AND IT WOULD BE JUST BY PURE CHANCE WHEN
5 SOMEONE SHOWED UP TO VOTE AND SOMEHOW THEY WERE DISCOVERED TO
6 BE A NON-CITIZEN THAT THEY WOULD HAVE BEEN CAUGHT AND PREVENTED
7 FROM VOTING.
8 MR. GOLDMAN: WELL, I MEAN YOU ASKED ME WHETHER WE
9 THINK THAT THERE IS ANY WAY TO DO IT. I THINK THERE IS AN EASY
10 ANSWER AT ONE END OF THE LINE, WHICH IS IF IN YOUR EXAMPLE OF
11 PURE CHANCE THEY GET THE INFORMATION THEN IT'S NOT A SYSTEMATIC
12 PROGRAM --
13 THE COURT: HOW WOULD THEY GET THE INFORMATION?
14 MR. GOLDMAN: SOMEBODY COMES FORWARD AND TELLS THEM OR
15 SOMEBODY REPORTS IT TO THEM WITHOUT THEM GOING OUT AND
16 AFFIRMATIVELY ADOPTING A PROGRAM TO LOOK FOR NON-CITIZENS.
17 I MEAN, CONGRESS OBVIOUSLY HAD SOME DISTINCTION IN
18 MIND WHEN IT WAS DISTINGUISHING BETWEEN SYSTEMATIC PROGRAMS
19 AND -- WHEN IT INCLUDED THE ADJECTIVE SYSTEMATIC. BUT HERE I
20 DON'T THINK THERE IS ANY QUESTION THAT WE ARE ON THE FAR OTHER
21 SIDE OF THE LINE. WE HAVE A PROGRAM THAT WAS ADOPTED WITH THE
22 PURPOSE OF REMOVING NON-CITIZENS WITH A NEW PROGRAM THAT'S
23 COMPREHENSIVE IN THE SENSE THAT INVOLVES ALL SORTS OF DATA BASE
24 MATCHING, AND SO FORTH.
25 THE COURT: BUT JUST SO THE RECORD IS CLEAR. THE
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1 PLAINTIFFS AGREE THAT NON-CITIZENS CAN BE REMOVED FROM THE
2 VOTING ROLLS WITHIN THE 90 DAYS QUIET PERIOD.
3 MR. GOLDMAN: SO, I AM GOING TO ANSWER THAT IN TWO
4 WAYS, YOUR HONOR.
5 I WILL START BY SAYING, YES, WE DO. IF THEY'RE -- IF
6 IT'S NOT -- IF IT'S ON A PURELY INDIVIDUALIZED BASIS. BUT
7 AGAIN, WHAT I WANT TO RESIST IS THEIR WHOLE BRIEF ATTEMPTS TO
8 ARGUE BASED ON THAT SUPPOSED CONCESSION THAT THAT THEREFORE HAS
9 VARIOUS OTHER CONSEQUENCES FOR THE STATUTE, INCLUDING ALLOWING
10 THEM TO DO SYSTEMATIC REMOVALS.
11 WHAT OUR VIEW IS, IS THAT'S NOT A CONCESSION. WE ARE
12 SAYING, IN OUR VIEW THE GENERAL REMOVAL PROVISION OF A STATUTE
13 PERMITS THIS BASED ON WHAT WE THINK IS A REASONABLE READING OF
14 THE TERM REGISTRANT. IF WE ARE WRONG ABOUT THAT, THAT DOES NOT
15 MEAN THAT WE THEN AGREE YOU HAVE TO NO MATTER WHAT READ THE
16 STATUTE TO ALLOW REMOVAL OF NON-CITIZENS EVEN IF IT HAS A
17 CONSEQUENCE OF DISTORTING THE PLAIN MEANING OF A DIFFERENT
18 STATUTORY PROVISION.
19 IF YOUR ONLY CHOICE HERE WERE, READ THE STATUTE TO SAY
20 YOU CAN'T REMOVE NON-CITIZENS AT ALL, OR READ IT TO SAY YOU CAN
21 REMOVE NON-CITIZENS AT ANY TIME EVEN IN A SYSTEMATIC WAY WITHIN
22 90 DAYS OF AN ELECTION, I THINK YOU HAVE TO READ THE STATUTE TO
23 SAY YOU CAN'T REMOVE THEM AT ALL. WE DON'T THINK THAT'S YOUR
24 ONLY CHOICE.
25 WE THINK -- IN FACT, WE THINK THAT READING THE STATUTE
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1 TO ALLOW INDIVIDUALIZED REMOVAL OF NON-CITIZENS IS A PERFECTLY
2 REASONABLE READING OF THE STATUTE BASED ON THE TERM REGISTRANT,
3 OR THAT GIVEN THE SORT OF INTUITION THAT THAT MUST BE
4 PERMISSIBLE YOU COULD READ AN EXCEPTION INTO THE GENERAL
5 REMOVAL PROVISION. BUT NEITHER OF THOSE GETS YOU TO THE POINT
6 THAT YOU DISTORT THE STATUTORY LANGUAGE OF THE 90 DAY
7 PROVISION.
8 AGAIN, THERE IS NO EXAMPLE OF A STATUTORY
9 INTERPRETATION THEY GIVE ANYWHERE THAT SAYS THAT DESPITE WHAT
10 THE STATUTE SAYS, AND DESPITE THE FACT WE CAN'T POINT TO ANY
11 WORD IN THE STATUTE THAT ALLOWS THIS WE ARE GOING TO READ THE
12 PROVISION TO PERMIT IT, AND WE'RE GOING TO DO IT NOT BECAUSE OF
13 ANYTHING ABOUT THE PURPOSE OF THIS PROVISION BUT BECAUSE OF THE
14 PURPOSE OF SOME OTHER PROVISION.
15 THE COURT: BUT YOU ARE NOT ARGUING THAT -- OR MAYBE
16 YOU ARE. ARE YOU SAYING THAT IF A NON-CITIZEN WHO SOMEHOW GOT
17 ONTO THE VOTING ROLLS AND WHO -- THAT THAT ERROR WAS NOT
18 DISCOVERED THAT THAT NON-CITIZEN HAS THE RIGHT TO GO AHEAD AND
19 VOTE?
20 MR. GOLDMAN: NO. OF COURSE THEY DON'T HAVE THE RIGHT
21 TO VOTE. IT'S A FELONY FOR THEM TO VOTE. SO THAT CAN BE
22 ENFORCED CRIMINALLY. IF THEY FIND OUT THAT SOMEBODY IS ON THE
23 VOTER ROLLS AND DID IT IN A PERJURIOUS WAY THEY CAN PROSECUTE
24 THAT PERSON. AND CERTAINLY IF THE PERSON VOTES THEY CAN
25 PROSECUTE THAT PERSON, AND THEY CAN ALSO TELL THE PERSON --
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1 THE COURT: BUT THAT IS A BIT LATE AFTER THE FACT,
2 THOUGH. THE VOTE WOULD HAVE BEEN PASSED AND COUNTED.
3 MR. GOLDMAN: WELL, AGAIN, YOUR HONOR, TO GIVE ANY
4 MEANING TO THIS PROVISION AT ALL IT'S SAYING THAT THERE ARE
5 CIRCUMSTANCES IN WHICH PEOPLE WHO ARE INELIGIBLE TO VOTE CANNOT
6 BE REMOVED IN A SYSTEMATIC WAY.
7 AGAIN, TO GO BACK TO MY BEGINNING. EVEN UNDER THEIR
8 EXAMPLE, THEY SAY THIS PROVISION SAYS YOU CAN'T SYSTEMICALLY
9 REMOVE PEOPLE WHO HAVE CHANGED THEIR ADDRESS, WHICH WOULD
10 INCLUDES NON-CITIZENS, PEOPLE WHO HAVE MOVED FROM FLORIDA TO A
11 DIFFERENT STATE. AND THEY SAY, THAT IS -- THAT IS BARRED BY
12 THIS PROVISION.
13 THAT'S A VERY NARROW READING OF THE STATUTE. BUT THEY
14 SAY THAT IT'S BARRED. AND TO UNDERSTAND WHAT THIS PROVISION
15 MEANS AT ALL YOU HAVE TO UNDERSTAND THAT CONGRESS WAIVED THE
16 RISKS HERE. IT'S TRUE. MAYBE FELONY PROSECUTION OR
17 PROSECUTION ISN'T SUFFICIENT, AND THERE IS SOME RISK, ALBEIT A
18 VERY SMALL ONE, THAT SOME NON-CITIZENS ARE GOING TO VOTE.
19 BUT CONGRESS WEIGHED THAT RISK. IT SAID, LOOK, YOU
20 NEED TO TRY TO REMOVE THOSE PEOPLE OUTSIDE THE 90 DAY PROVISION
21 IF YOU ARE GOING TO DO IT A SYSTEMATIC WAY BECAUSE BIG
22 GOVERNMENT PROGRAMS THAT YOU ARE ADOPTING AND TRYING TO DO THAT
23 CLOSE TO AN ELECTION HAVE A NEGATIVE IMPACT ON ELIGIBLE VOTERS
24 BECAUSE OF THE RISKS OF INACCURACIES.
25 THAT'S WHAT -- THAT'S WHAT IS EVIDENT FROM THE
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1 LEGISLATIVE HISTORY WHERE THE PURPOSE WAS TO EXPAND -- WAS TO
2 EXPAND VOTING, AND THAT'S WHAT'S EVIDENCED FROM -- MOST
3 IMPORTANTLY FROM THE STATUTORY LANGUAGE. AND THEY CAN'T
4 MAKE -- IF THE NOTION IS, WELL, IT MUST BE THE CASE THAT THEY
5 CAN DO WHATEVER THE HECK THEY WANT TO GET NON-CITIZENS OFF THE
6 ROLLS, YOU CAN'T GIVE ANY MEANING TO THIS PROVISION WHATSOEVER.
7 WHAT DOES IT MEAN? IT CLEARLY BARS SOMETHING, AND IT BARS
8 REMOVAL OF SOME PEOPLE WHO ARE INELIGIBLE.
9 THE COURT: BUT WASN'T THE PURPOSE OF THE NVRA TO
10 PROTECT CITIZENS?
11 MR. GOLDMAN: SURE. THE PURPOSE IS TO PROTECT
12 CITIZENS AND TO PROTECT ELIGIBLE VOTERS, RIGHT?
13 THE COURT: AND ELIGIBLE VOTERS BUT NOT NON-CITIZENS
14 WHO GOT ON THE VOTING ROLLS.
15 MR. GOLDMAN: RIGHT. AND HE WE ARE NOT SUGGESTING
16 THAT THE PURPOSE IS TO PROTECT NON-CITIZENS. WE'RE SAYING ANY
17 PROGRAM HAS A RISK OF ERROR. RIGHT? AND CONGRESS SAID THERE
18 IS A RISK OF ERROR OF A SYSTEMATIC PROGRAM. THERE'S A BIG RISK
19 THAT IT'S GOING IMPACT NON-CITIZENS -- I'M SORRY, CITIZENS,
20 PEOPLE WHO ARE ELIGIBLE TO VOTE. I MEAN, THE PROVISION BY ITS
21 TERMS SAYS -- IT'S BARRING PROGRAMS THE PURPOSE OF WHICH IS TO
22 SYSTEMICALLY REMOVE THE NAMES OF INELIGIBLE VOTERS.
23 NOW, CONGRESS SAID THAT. DOES THAT MEAN IT WAS TRYING
24 TO PROTECT INELIGIBLE VOTERS? NO. BUT IT WAS BARRING
25 SYSTEMATIC REMOVAL OF THE NAMES OF INELIGIBLE VOTERS BECAUSE IT
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1 THOUGHT THAT SYSTEMATIC -- THAT SUCH SYSTEMATIC REMOVALS WITHIN
2 THE 90 DAY PERIOD HAVE AN IMPACT -- HAVING A POTENTIAL IMPACT
3 ON ELIGIBLE VOTERS.
4 IT HAS SEEN HISTORY OF DISCRIMINATORY ACTION HISTORY
5 OF SYSTEMATIC PROGRAMS, AND THAT'S WHAT IT WROTE IN THE
6 STATUTE. AGAIN, I DON'T THINK THERE IS A WAY OF SAYING -- OF
7 CARVING OUT NON-CITIZENS AS A SPECIAL CATEGORY HERE. IT BARRED
8 SOMETHING IN DOING THAT. AND ONCE IT BARRED THAT AND YOU READ
9 THE LANGUAGE, THE LANGUAGE SAYS, ANY PROGRAM THE PURPOSE OF
10 WHICH IS TO SYSTEMATIC REMOVE INELIGIBLE VOTERS.
11 AND WE POINTED TO A HISTORY IN FLORIDA OF THE RISK
12 OF -- OF ERRORS IN VOTER PURGES IN THE PAST. NONE OF THAT IS
13 DISPUTED. AND THOSE ARE THE TYPES OF BIG SYSTEMATIC PROGRAMS
14 THAT POSE A RISK. NOW, THEY WANT TO SAY THIS PROGRAM WON'T
15 POSE THAT RISK. WE ARE GOING TO DO IT A HUNDRED PERCENT RIGHT
16 THIS TIME.
17 WELL, CONGRESS ALREADY MADE THE JUDGMENT. IT SAID,
18 NO, WE ARE NOT GOING TO EVALUATE THIS ON A CASE BY CASE BASIS.
19 THE RISKS OF ELIGIBLE VOTERS ARE TOO HIGH AND WE ARE GOING TO
20 SAY THAT YOU CAN'T DO IT SYSTEMATICALLY, PERIOD. YOU CAN DO --
21 THEY COULD HAVE DONE IT BEFORE, THEY COULD DO IT LATER, AND SO
22 FORTH. BUT THE RISKS TO ELIGIBLE VOTERS ARE TOO HIGH AND IT'S
23 EVIDENT FROM HAPPENED BACK IN APRIL.
24 THEY STARTED THIS PROGRAM. THEY CREATED THIS LIST OF
25 2,600, THEY SENT IT TO THE SUPERVISOR TO START THE REMOVAL
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1 PROCESS. MANY OF THEM REFUSED, BUT THE ONES WHO SENT THE
2 LETTERS ON IT TURNED OUT A VERY HIGH PERCENTAGE OF THAT LETTERS
3 WERE IN ERROR.
4 THE COURT: LET ME GO BACK TO A QUESTION THAT I ASKED
5 YOU EARLIER. YOU MIGHT THINK THAT YOU HAVE ANSWERED IT BUT I
6 WILL ASK IT AGAIN.
7 SO WHAT PROVISION UNDER SECTION EIGHT OF THE NVRA
8 WOULD GIVE THE STATE THE ABILITY TO REMOVE NON-CITIZENS?
9 MR. GOLDMAN: AGAIN, WE BELIEVE THAT SECTION A, WHICH
10 IS THE GENERAL REMOVAL PROVISION, IF REMOVAL -- IT SAYS -- IT
11 SAYS THE STATE SHALL NOT REMOVE REGULAR RESTAURANTS EXCEPT FOR
12 VARIOUS CATEGORIES.
13 THE COURT: RIGHT.
14 MR. GOLDMAN: AND, SO IT REMOVES -- IT ALLOWS REMOVAL
15 OF PEOPLE WHO ARE NOT RESTAURANTS.
16 THE COURT: I AM TALKING ABOUT NON-CITIZENS.
17 MR. GOLDMAN: RIGHT. SO A NON-CITIZEN IS NOT A
18 REGISTRANT IN OUR VIEW BECAUSE A REGISTRANT WE BELIEVE IS
19 SOMEBODY WHO HAS TO BE LAWFULLY REGISTERED. AT LEAST WE THINK
20 THAT'S A REASONABLE INTERPRETATION OF THE STATUTE.
21 AND, SO THE GENERAL REMOVAL PROVISION WE THINK ALLOWS
22 REMOVAL OF NON-CITIZENS AND THAT'S MODIFIED BY THE 90 DAY
23 PROVISION WHICH SAYS YOU CAN'T DO IT IN A SYSTEMATIC WAY WITHIN
24 90 DAYS OF AN ELECTION. SO THAT'S INTERPRETATION WE GIVE.
25 AGAIN, IF THEY'RE -- THEY SEEM TO ARGUE THE PLAIN
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1 LANGUAGE OF THE GENERAL REMOVAL PROVISION DOESN'T PERMIT
2 REMOVAL OF NON-CITIZENS EVER BECAUSE THE TERM REGISTRANT
3 APPLIES TO PEOPLE WHO WERE NOT ELIGIBLE TO VOTE ON -- WHEN
4 THEY -- WHEN THEY REGISTERED IN THE FIRST PLACE. WELL, IF
5 THAT'S RIGHT WHAT HAPPENS? THE STATUTE SAYS, YOU CAN'T
6 REMOVE -- YOU CAN'T REMOVE NON-CITIZENS OR ANYBODY ELSE WHO IS
7 INELIGIBLE TO VOTE AT ANY TIME EXCEPT FOR THE EXCEPTIONS
8 SPECIFIED IN THAT PROVISION.
9 AND AGAIN, SORT OF GO BACK, WHAT'S THE CONSEQUENCE OF
10 THAT? ONE CONSEQUENCE IS, YOU MIGHT SAY, WELL, CONGRESS REALLY
11 -- THAT'S WHAT CONGRESS SAID. WE INTERPRET THE STATUTE BASED
12 ON ITS WORD, WE ARE GOING TO SAY YOU CAN'T REMOVE NON-CITIZENS
13 PERIOD. LET'S SAY YOU CONCLUDE THAT'S ABSURD. THERE HAS TO BE
14 A WAY TO REMOVE NON-CITIZENS AT SOME POINT IN TIME. WHAT DO
15 YOU DO?
16 AGAIN, WE THINK THE MOST OBVIOUS THING TO DO IS
17 INTERPRET THE TERM REGISTRANT TO SAY CONGRESS CAN'T REMOVE --
18 CONGRESS ALLOWED REMOVAL OF PEOPLE WHO WERE NEVER ELIGIBLE TO
19 VOTE AT THE TIME THEY REGISTERED CONSISTENT WITH THE GENERAL
20 REMOVAL PROVISION. ALTERNATIVELY, AGAIN, YOU CAN READ AN
21 EXCEPTION INTO THAT PROVISION BECAUSE YOU CAN CONCLUDE THAT THE
22 RESULT IS SO ABSURD THAT CONGRESS SURELY DIDN'T MEAN THAT.
23 SO, WE THINK THAT THERE IS A WAY TO INTERPRET THE
24 STATUTE TO ALLOW THAT BUT THAT HAS NO BEARING ON THIS
25 PROVISION. THIS PROVISION DOESN'T INCLUDE THE TERM REGISTRANT.
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1 AGAIN, THEY DON'T POINT TO A SINGLE WORD IN THE STATUTE THAT
2 WOULD ALLOW REMOVALS AIMED AT NON-CITIZENS. AND AGAIN, IT
3 MAKES NO SENSE TO INTERPRET THE STATUTE THAT WAY BECAUSE THE
4 STATUTE -- JUST BECAUSE NON-CITIZENS ARE INELIGIBLE AND YOU
5 THINK SURELY THERE MUST BE A WAY TO REMOVE THEM, CONGRESS
6 BARRED SYSTEMATIC REMOVALS AIMED AT SOME TYPES OF INELIGIBLE
7 VOTERS AND THEY DON'T EXPLAIN WHY THAT IS ANY DIFFERENT THAN
8 THIS ONE. THE RISKS OF ELIGIBLE VOTERS ARE EXACTLY THE SAME
9 REGARDLESS WHERE THE SYSTEMATIC PURGE YOU ARE ENGAGED IN IS
10 AIMED AT NON-CITIZENS WHO ARE NOT BORN IN THE U.S. OR
11 NON-CITIZENS WHO MOVE ACROSS STATE LINES WHICH THEY SAY IS
12 BARRED, OR ANY OTHER TYPE OF SYSTEMATIC PURGE.
13 SO THEY'RE ASKING YOU TO READ AN EXCEPTION INTO THIS
14 90 DAY PROVISION THAT'S INCONSISTENT WITH THE WORD, THAT IS NOT
15 BASED ON A SINGLE WORD IN THE PROVISION. AND AGAIN, THEY DON'T
16 POINT TO ANY TIME THAT ANY COURT THAT HAVE INTERPRETED THE
17 STATUTE THAT WAY.
18 AND TO GO BACK, THE RON PARR CASE SAID THAT YOU CAN
19 ONLY DO THAT IF IT WOULD BE DEMONSTRATIVE AT ODDS WITH THE
20 INTENTIONS OF THE DRAFTERS. THEY DON'T POINT TO ANYTHING TO
21 SHOW THAT IT WOULD BE DEMONSTRATIVELY AT ODDS WITH THE
22 INTENTION OF THE DRAFTERS TO READ THIS PROVISION AS WRITTEN.
23 NOW, THEY ATTEMPT TO MAKE SOME ARGUMENTS BASED ON --
24 BASED ON SUBPARAGRAPH B HERE. SUBPARAGRAPH B SAYS THIS 90 DAY
25 PROHIBITION SHALL NOT BE CONSTRUED TO PRECLUDE CERTAIN OTHER
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1 TYPES OF REMOVALS.
2 IF YOU LOOK AT THE CROSS-REFERENCES IN THE STATUTE,
3 THOSE CROSS-REFERENCES ARE PROVISIONS ALLOWING REMOVALS BASED
4 ON DEATH, REMOVALS BASED ON MENTAL INCAPACITY, AND SO FORTH.
5 NONE OF THEM APPLY HERE. AND WHAT THEY TRY TO SAY IS, WELL, IF
6 CONGRESS ALLOWED THAT SURELY IT MUST HAVE ALLOWED REMOVAL OF
7 NON-CITIZENS. WELL, THAT'S A VERY ODD WAY TO INTERPRET THE
8 STATUTE. TO SAY THAT BECAUSE THERE ARE CERTAINLY EXCEPTIONS
9 THAT CONGRESS WROTE IN, WE ARE GOING TO SAY CONGRESS MUST HAVE
10 INTENDED THESE ADDITIONAL EXCEPTIONS. NORMALLY YOU READ THE
11 STATUTE THE OPPOSITE WAY. IF CONGRESS LISTS SPECIFIC
12 EXCEPTIONS IT DOESN'T INTEND ANOTHER ONE.
13 IN ADDITION, I DON'T ACTUALLY THINK THAT THESE ARE
14 ACTUALLY EXCEPTIONS IN THE WAY THEY'RE CATEGORIZING THEM. THE
15 STATUTE SAYS SUBPARAGRAPH A SHALL NOT BE CONSTRUED TO PRECLUDE
16 REMOVAL OF NAMES DESCRIBED IN THESE PARAGRAPHS.
17 SO WHAT WE -- WHAT I THINK THAT MEANS IS THAT
18 SYSTEMATIC PURGES ARE BARRED PERIOD. BUT CERTAINLY TYPE OF
19 PURGES LIKE BASED ON DEATH, AND SO FORTH, THEY'RE SAYING CAN
20 OCCUR IN A NON-SYSTEMATIC WAY SO THAT THE -- THE PROHIBITION ON
21 SYSTEMATIC REMOVALS SHOULDN'T BE CONSTRUED TO BAR ALL
22 PROHIBITIONS BASED ON -- OR ALL REMOVALS BASED ON DEATH OR
23 THESE OTHER CATEGORIES.
24 BUT REGARDLESS I DON'T THINK THAT MATTERS. YOU CAN'T
25 GET FROM THE BACK OF THE STATUTE HAS OTHER EXCEPTIONS INTO THE
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1 READING THEY WANT TO GET, WHICH IS THAT IT ALSO INCLUDES THIS
2 EXCEPTION THAT WIPES OUT ALMOST THE ENTIRE PROHIBITION. UNDER
3 THEIR READING THE ONLY THING THIS 90 DAY PROHIBITION PREVENTS
4 IS -- IS REMOVAL -- SYSTEMATIC REMOVALS BASED ON CHANGE OF
5 ADDRESS. WELL, IF CONGRESS HAD JUST WANTED TO BAR SYSTEMATIC
6 REMOVALS BASED ON CHANGE OF ADDRESS IT COULD HAVE SAID THAT IN
7 A HECK OF A LOT SIMPLER WAY THAN WRITTEN HERE. THIS
8 PROHIBITION SAYS -- IS A PROHIBITION ON ANY PROGRAM THE PURPOSE
9 OF WHICH IS TO SYSTEMATIC REMOVE THE NAMES OF INELIGIBLE
10 VOTERS.
11 IF CONGRESS HAD JUST WANTED TO LIMIT SYSTEMATIC PURGES
12 BASED ON CHARGES OF ADDRESS IT CERTAINLY WOULDN'T HAVE SAID,
13 USE THE ADJECTIVE ANY. IT WOULDN'T HAVE BROADLY SPOKEN ABOUT
14 PROGRAMS. IT WOULD HAVE JUST SAID, YOU CAN'T DO SYSTEMATIC
15 CHANGES BASED ON CHANGES OF ADDRESS. THAT'S NOT WHAT IT SAID
16 AND THAT'S NOT WHAT THE STATUS MEANS.
17 NOW, I WANT TO TURN -- I WANT TO TURN BRIEFLY TO
18 STANDING. THEY ATTEMPT TO ARGUE HERE THAT THE PLAINTIFFS --
19 THAT THE PLAINTIFFS DON'T HAVE -- DON'T HAVE STANDING TO BRING
20 THIS LAWSUIT, BUT --
21 THE COURT: AND THEN AFTER YOU FINISH THAT POINT I AM
22 GOING TO NEED FOR YOU TO BEGIN TO CONCLUDE WITH YOUR
23 PRESENTATION BECAUSE I STILL NEED TO HEAR FROM THE DEFENSE.
24 MR. GOLDMAN: SURE. THERE ARE SEVERAL THINGS TO SAY
25 ABOUT STANDING.
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1 FIRST OF ALL, YOU HEARD FROM OUR TWO WITNESSES TODAY
2 ABOUT THE FACT THAT THE RESOURCES OF THEIR ORGANIZATIONS HAVE
3 BEEN AND ARE BEING DIVERTED AS A RESULT OF THIS VOTER PURGE.
4 UNDER GOVERNING ELEVENTH CIRCUIT LAW THAT IS
5 SUFFICIENT TO INFER STANDING, AND I'M GOING TO TALK ABOUT THAT
6 IN A MINUTE. BUT ONE -- ONE THING TO NOTE UP FRONT, WITH
7 RESPECT TO THE TESTIMONY ABOUT THE PUERTO RICO BIRTH
8 CERTIFICATES, ON CROSS MR. NORDBY SUGGESTED THAT THERE WOULD BE
9 OTHER TYPES OF WAYS SOMEBODY COULD PROVE CITIZENSHIP IF THEY
10 WERE ON THE LIST -- IF THEY GOT A LETTER SAYING THEY WERE GOING
11 TO BE REMOVED.
12 BUT IF YOU LOOK AT EXHIBIT A-6, WHICH IS THEIR
13 POWERPOINT PRESENTATION THAT THEY MADE ON SEPTEMBER 10TH, THERE
14 IS A LIST OF THINGS THAT THEY SAY CAN BE THE BASIS OF PROVING
15 CITIZENSHIP WHICH INCLUDE BIRTH CERTIFICATE, PASSPORTS, AND A
16 COUPLE OTHER THINGS THAT ONLY A NATURALIZED CITIZEN WOULD HAVE.
17 A PUERTO RICAN AT LEAST UNLESS THEY HAD A PASSPORT WOULD NOT
18 HAVE THOSE THINGS.
19 NOW --
20 THE COURT: POSSIBLY.
21 MR. GOLDMAN: RIGHT.
22 THE COURT: IN THIS DAY AND AGE IT IS NOT SURPRISING
23 THAT SOMEONE HAS THOSE TYPES OF DOCUMENTS AND WHO IS NOT A
24 CITIZEN. THEY WOULD EVENTUALLY GET CAUGHT. THEIR LUCK MIGHT
25 EVENTUALLY RUN OUT.
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1 MR. GOLDMAN: IT IS POSSIBLE. BUT THE POINT IS IF
2 THEY'RE TRYING TO SAY THAT, HEY, THERE IS NO RISK TO CITIZENS
3 HERE BECAUSE THEY CAN GO IN AND PROVE THEIR CITIZENSHIP, PUERTO
4 RICAN CITIZENS IS AN EXAMPLE OF SOMEBODY WHO LIKELY WOULD NOT
5 HAVE THAT TYPE OF DOCUMENTATION.
6 THE COURT: BUT YOU HAVE NO IDEA HOW MANY PLEAS I HAVE
7 TAKEN IN THIS COURTROOM FROM INDIVIDUALS EITHER WORKING AT THE
8 DEPARTMENT OF MOTOR VEHICLES HERE IN THE STATE OF FLORIDA OR
9 WORKING WITH SOMEONE ON THE OUTSIDE WHO HAVE ISSUED FLORIDA
10 DRIVER'S LICENSES TO INDIVIDUALS WHO WERE NOT ENTITLED TO
11 RECEIVE THEM FOR A SMALL FEE. AND DRIVER'S LICENSES ARE JUST
12 ABOUT THE FIRST MEANS OF IDENTIFICATION THROUGHOUT THIS
13 COUNTRY.
14 MR. GOLDMAN: RIGHT. SO, I MEAN, I UNDERSTAND THAT
15 PEOPLE -- THAT SOME PEOPLE MAY HAVE DOCUMENTS FRAUDULENT BUT
16 THE PEOPLE WE ARE TRYING TO PROTECT ARE THE ELIGIBLE VOTERS --
17 THE COURT: I UNDERSTAND. I UNDERSTAND.
18 MR. GOLDMAN: YES. SO, IN ANY CASE THAT'S A BIT --
19 THAT'S A BIT OF A SIDESHOW. THE MAIN POINT IS THAT THERE IS
20 TESTIMONY THAT THESE ORGANIZATIONS HAVE TO DIVERT RESOURCES,
21 AND UNDER THE ELEVENTH CIRCUIT'S DECISION IN BROWNING THAT'S
22 MORE THAN SUFFICIENT TO CONFER STANDING.
23 THE BROWNING COURT FOUND STANDING BASED ON AN
24 AFFIDAVIT THAT SAYS A PARTICULAR ORGANIZATION ANTICIPATES THAT
25 IT WILL EXPEND MANY MORE HOURS THAN IT OTHERWISE WOULD HAVE
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1 CONDUCTING FOLLOW UP WITH REGISTRATION APPLICANTS BECAUSE
2 VOTERS WILL HAVE THEIR APPLICATIONS DENIED DUE TO MATCHING
3 ERRORS.
4 THEY FOUND STANDING FOR THE NAACP ON THE BASIS OF AN
5 AFFIDAVIT SAYING THAT THE NAACP HAS PERSONNEL THAT WOULD BE
6 PART OF ITS REGISTRATION EFFORT THAT WOULD HAVE TO BE DIVERTED
7 TO RESOLVING MISMATCHES.
8 THE SOUTHERN DISTRICT FOUND STANDING IN THE COMMON
9 CARRIER BILLUPS CASE BASED ON UNDISPUTED TESTIMONY THAT THE
10 NAACP WOULD HAVE TO DIVERT FUNDS DUE TO A PHOTO ID REQUIREMENT.
11 AGAIN, TO REPEAT, WE HAVE SUBMITTED AFFIDAVITS ON THESE POINTS
12 AND THERE IS NO DISPUTE BECAUSE THEY SAY THEY DON'T HAVE
13 KNOWLEDGE ONE WAY OR ANOTHER WITH RESPECT TO DIVERSION OF
14 RESOURCES.
15 SECONDLY, THERE IS STANDING IN THIS CASE WITH RESPECT
16 -- BY THE INDIVIDUAL PLAINTIFFS BECAUSE THEY WERE ON THE LIST
17 OF 2,600 PEOPLE WHO THE STATE SENT OUT TO SUPERVISORS
18 PREVIOUSLY WITH THE INTENT OF STARTING THE PURGE PROCESS. NOW,
19 THE STATE STOPPED THAT PROCESS. BUT WHEN IT'S BEGUN AGAIN IT
20 STARTED WITH THAT LIST OF 2,600 MEANING THOSE PEOPLE ARE OF
21 PARTICULAR RISK, MUCH MORE THAN A TYPICAL PERSON OUT THERE OF
22 BEING PURGED.
23 AND, THIRD, THERE IS STANDING BECAUSE THESE
24 ORGANIZATIONS HAVE MANY, MANY MEMBERS. THE SCIU HAS 25,000
25 MEMBERS, AND YOU HAIRED THE TESTIMONY THAT THE --
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1 THE COURT: BY MR. SEDA.
2 MR. GOLDMAN: FROM MR. SEDA ABOUT THE PURPOSE OF THE
3 PUERTO RICAN -- HIS ORGANIZATION IS TO PROTECT 180,000, I
4 BELIEVE IT, WAS PUERTO RICANS STATEWIDE.
5 NOW, --
6 THE COURT: WELL, I THINK HE SAID A LITTLE MORE THAN
7 THAT. BUT THAT IS ALL RIGHT.
8 MR. GOLDMAN: 800,000.
9 THE COURT: THAT IS ALL RIGHT.
10 MR. GOLDMAN: THANK YOU.
11 THE COURT: I UNDERSTAND.
12 MR. GOLDMAN: NOW, THEIR ANSWER TO ALL OF THIS IS,
13 HEY, WE ARE GOING TO DO IT ACCURATELY THIS TIME. WE ARE NOT
14 GOING TO IMPACT ANYBODY WHO IS ACTUALLY A CITIZEN. WELL, THERE
15 IS A COUPLE OF THINGS TO SAY ABOUT THAT.
16 THE COURT: I NEED FOR YOU TO BEGIN TO WRAP UP.
17 MR. GOLDMAN: OKAY. SO I'M GOING TO WRAP UP.
18 SO, QUICKLY. FIRST, THERE IS SEVERAL CASES THAT SAY
19 IT DOESN'T MATTER WHETHER THEY ULTIMATELY REMOVE THE PERSON.
20 SENDING THE LETTER TO THE PERSON AND MAKING THEM THINK THAT
21 THEY ARE INELIGIBLE AND HAVING TO COME FORWARD WITH DOCUMENT IS
22 SUFFICIENT TO CONFER STANDING. WE SUPPORT CASES ON THAT IN OUR
23 STANDING, THE SUPPORTED CASES ON THAT IN OUR IRREPARABLE HARM
24 SECTION.
25 MOREOVER, WITH RESPECT TO THE CLAIMS OF ACCURACY I
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1 DON'T THINK -- YOU KNOW, IT'S PERFECTLY REASONABLE FOR THESE
2 ORGANIZATIONS NOT TO TAKE THE STATE AT ITS WORDS. IT HAS BEEN
3 INACCURATE EVERY TIME THEY DID IT BEFORE, INCLUDING IN APRIL AS
4 THE UNDISPUTED TESTIMONY SHOWS. IT'S ADOPTING AN ENTIRELY NEW
5 PROGRAM, AND THERE ARE FLAWS IN THE PROGRAM THAT WE POINT OUT.
6 WE SUBMITTED IT IN AFFIDAVIT FROM THE SUPERVISOR,
7 MR. SANCHO, WHO SAID, JUST THE TRAINING IS DIFFICULT TO
8 UNDERSTAND. THERE COULD BE MANUAL ERRORS. THERE ARE ALSO THE
9 NAMES THAT THEY GET TO BEGIN WITH ARE NAMES BASED ON A MATCH OF
10 THE DRIVER'S LICENSE ROLLS AND THE VOTER REGISTRATION ROLLS.
11 THEY SAY THOSE MATCHES ARE GOING TO BE PERFECT. THEY'RE GOING
12 TO BE BASED ON SOCIAL SECURITY NUMBERS, AND SO FORTH. BUT
13 THEIR AFFIDAVIT TALKS ABOUT ACTUALLY A CATEGORY THAT IS NOT
14 BASED ON SOCIAL SECURITY NUMBERS OR DATES OF BIRTH BUT BASED ON
15 ALGORITHMS. AND AGAIN, THEY HAD THAT SAME MATCHING PROCESS IN
16 PLACE BACK IN APRIL AND IT DIDN'T WORK. THEY GOT ALL SORTS OF
17 -- THEY ENDED UP WITH ALL SORTS OF INACCURACY.
18 THIRD, THERE IS A RISK THAT THE SAVED DATABASE ITSELF
19 IS INACCURATE. CERTAINLY NOT A HUNDRED PERCENT ACCURATE, AND
20 IT'S NOT UPDATED TO THE MOMENT. SO AGAIN, THERE ARE CERTAINLY
21 RISKS HERE TO MEMBERS OF THESE ORGANIZATIONS AND THEY'VE TOLD
22 YOU THAT THEY ARE GOING TO SPEND RESOURCES IN CONJUNCTION WITH
23 THOSE RISKS.
24 SO, IN CONCLUSION I JUST WANT TO SAY THAT FOR PURPOSES
25 OF SUMMARY JUDGMENT ALL WE HAVE TO ESTABLISH IS STANDING AND
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1 THE MERITS, BUT WE ALSO ESTABLISHED THE PI FACTORS. WITH
2 RESPECT TO THE PUBLIC INTEREST THE ELEVENTH CIRCUIT HAS MADE
3 CLEAR THAT WHERE THERE IS A STATUTORY PROVISION THAT'S VIOLATE
4 AND THAT PROVIDE FOR AN INJUNCTION, THAT ALONE TELLS YOU WHAT
5 THE PUBLIC INTEREST IS. HERE CONGRESS MADE ITS INTENT HEAR IN
6 BANNING SYSTEMATIC PURGES WITHIN 90 DAYS OF A FEDERAL ELECTION.
7 THE COURT: ALL RIGHT, COUNSEL. THANK YOU VERY MUCH.
8 LET ME TAKE A SHORT RECESS. MY COURT REPORTER IN
9 PARTICULAR NEEDS A BREAK.
10 LET'S HAVE EVERYONE BACK IN HERE AT 20 AFTER.
11 THE COURT IS IN RECESS FOR 10 MINUTES.
12 [WHEREUPON, THERE WAS A BRIEF RECESS]
13 THE COURT: PLEASE BE SEATED.
14 ALL RIGHT, MR. CARVIN.
15 MR. CARVIN: GOOD MORNING, YOUR HONOR. MICHAEL CARVIN
16 FOR THE SECRETARY.
17 THE COURT: GOOD MORNING.
18 MR. CARVIN: THE PLAINTIFFS HAVE --
19 THE COURT: I'M SORRY. LET ME INTERRUPT YOU, AND I
20 APOLOGIZE.
21 LET ME ASK THE PLAINTIFF REAL QUICKLY. ARE YOU STILL
22 PROCEEDING WITH MELANDE ANTOINE?
23 MR. GOLDMAN: YES. SHE IS STILL --
24 THE COURT: SHE IS STILL A PLAINTIFF?
25 MR. GOLDMAN: YES.
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1 THE COURT: BUT I THOUGHT SHE RESOLVED HER ISSUE WITH
2 THE STATE.
3 MR. GOLDMAN: SHE IS STILL ON THE LIST OF 2,600 THAT
4 THEY ARE NOW USING AS THE BASIS TO START THE NEXT PURGE. AND,
5 SO WE BELIEVE SHE IS STILL AT THE HIGH RISK.
6 THE COURT: ALL RIGHT. FINE.
7 COUNSEL.
8 MR. CARVIN: YOUR HONOR, PLAINTIFFS HAVE COME IN AT
9 THE ELEVENTH HOUR AND THEY WANT YOU TO INTERPRET FEDERAL LAW TO
10 PRECLUDE STATES FROM ALLOWING VOTERS TO COMMIT A FEDERAL CRIME.
11 JUDGE HINKLE REJECTED THIS ARGUMENT. THE JUSTICE
12 DEPARTMENT HAS ABANDON IT BECAUSE NO SENSIBLE PERSON IS GOING
13 TO ADVANCE TO A FEDERAL COURT THE NOTION THAT FEDERAL COURT
14 REQUIRES DILUTING THE VOTES OF CITIZENS BY INCLUDING
15 NON-CITIZENS. EVERY TIME A NON-CITIZEN VOTES HE CANCELS OUT
16 THE VOTE OF A CITIZEN. NOR WILL THEY ACCEPT THE NOTION YOU
17 SHOULD BE AN ACCESSORY TO A FEDERAL CRIME BY LEAVING 197
18 NON-CITIZENS THAT HAVE ALREADY BEEN IDENTIFIED ON THIS LIST TO
19 GO AHEAD AND VOTE. COUNSEL AGREES THAT THEY CAN'T VOTE. IT'S
20 A CRIME TO REGISTER. IT'S A CRIME TO VOTE. SO YOU CAN'T
21 ENDORSE THIS CRIMINAL BEHAVIOR. SO I THINK WITH THAT AS
22 BACKGROUND IT'S CLEAR THAT THEIR INTERPRETATION OF THE STATUTE
23 IS OBVIOUSLY WRONG.
24 COUNSEL HAS PROVIDED THIS SUMMARY OF WHAT HE CALLS THE
25 90 DAY PROVISION FOR YOUR HONOR. AND THEIR ARGUMENT IS THAT
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1 SINCE YOU DON'T SEE THE WORD NON-CITIZEN HERE AS AN EXCEPTION
2 TO THE BAN ON SYSTEMATIC REMOVAL, THEN THEREFORE BY DEFINITION
3 YOU MUST ALLOW NON-CITIZENS TO REMAIN ON THE ROLLS.
4 BUT THE KEY POINT WHICH THEY SEEM TO TRY AND EVADE IS,
5 THAT ALL THE EXCEPTIONS THAT ARE LISTED HERE THAT DON'T INCLUDE
6 THE WORD NON-CITIZEN, WHEN YOU TURN TO WHAT THEY CALL THE
7 PERMANENT REMOVAL PROVISION THE WORD NON-CITIZEN IS NOT THERE
8 EITHER.
9 IN OTHER WORDS, THIS LISTS FIVE EXCEPTIONS. THEY ALL
10 COME DIRECTLY AS YOU CAN SEE FROM THAT FROM THE PERMANENT
11 REMOVAL PROVISION, A3. AND A3 AND A4 DO NOT HAVE
12 NON-CITIZENSHIP AS ONE OF THE EXCEPTIONS. SO, BY DEFINITION IF
13 YOU ACCEPT THEIR PLAIN LANGUAGE ARGUMENT THAT UNLESS YOU SEE
14 THE WORD NON-CITIZEN IT CAN'T BE A PROPER BASIS FOR REMOVAL,
15 THEN BY DEFINITION THAT APPLIES EQUALLY TO THE PERMANENT BAN ON
16 REMOVAL AS IT DOES TO WHAT THEY REFER TO AS THE 90 DAY
17 PROVISION.
18 NOW, THEY RECOGNIZE THAT'S AN ABSURD RESULT. THAT IS
19 NOT US. THAT IS THEM RECOGNIZING THAT IT'S AN ABSURD RESULT.
20 WHAT DO THEY DO WITH THE PLAIN LANGUAGE OF THE NON REMOVAL --
21 OF THE PERMANENT REMOVAL PROVISION? THEY SAY, DON'T INTERPRET
22 THE WORD REGISTRANT TO MEAN WHAT IT PLAINLY, UNEQUIVOCALLY,
23 ABSOLUTELY MEANS. DON'T INTERPRET REGISTRANT TO MEAN PEOPLE
24 WHO ARE REGISTERED ON VOTING ROLLS BECAUSE THAT WOULD BE AN
25 ABSURDITY. WHY? THEY WERE NEVER PROPERLY OR LAWFULLY
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1 REGISTERED. THEY ONLY BECAME REGISTRANTS BY COMMITTING A
2 CRIME.
3 SO THE STANDARD THAT THE PLAINTIFFS ARE INVOKING FOR
4 THE PERMANENT REGISTRATION STATUS HAS NOTHING TO DO WITH THE
5 ERRORS THAT OCCUR WITHIN 90 DAYS OR ANYTHING LIKE THAT. THEIR
6 ANALYSIS APPLIES TO PERMANENT REMOVAL. IT'S A VERY SENSIBLE
7 ARGUMENT. IT'S LIKE SAYING THAT, LET'S SAY A STATE HAD A LAW
8 THAT SAID THERE IS ONLY TWO GROUNDS FOR DISSOLVING A MARRIAGE
9 LICENSE, ADULTERY AND MENTAL CRUELTY. AND SOMEBODY WHO WOULD
10 ENGAGE IN A BIGAMIST MARRIAGE OR AN INCESTUOUS MARRIAGE, I.E.,
11 A MARRIAGE THAT WAS NEVER PROPER IN THE FIRST PLACE, THAT
12 WOULDN'T BAN THE STATE FROM UNDOING THE INCESTUOUS OR BIGAMIST
13 MARRIAGE BECAUSE BY THE REASONING THAT THE PLAINTIFFS PUT
14 FORWARD. OBVIOUSLY IF IT WAS AN IMPROPER MARRIAGE IN THE FIRST
15 PLACE, JUST LIKE IT WAS AN IMPROPER REGISTRATION THEN YOU DON'T
16 COUNT IT.
17 THAT IS EXACTLY OUR ARGUMENT. WE ARE EMBRACING THEIR
18 ARGUMENT FOR THE 90 DAY REMOVAL PROVISION. IF IT IS
19 PERMISSIBLE AS ALL AGREED IS TO NOT COUNT PEOPLE WHO ARE NOT
20 REGISTERED ON THE VOTING ROLLS, WHEN THEY WERE REGISTERED ON
21 THE VOTING ROLLS ILLEGALLY, THAT APPLIES JUST AS MUCH TO THE 90
22 DAY PROVISION, BECAUSE THE 90 DAY PROVISION ONLY PROHIBITS YOU
23 FROM REMOVING VOTERS FROM THE VOTING ROLL. AND IF THEY WERE
24 NEVER REGISTRANTS THEY WERE NEVER VOTERS, AND IF THEY WERE
25 NEVER REGISTRANTS THEY WERE NEVER ON THE VOTING ROLLS. SO
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1 EXACTLY THE SAME REASONING THAT THEIR ADVANCING FOR THE
2 PERMANENT REMOVAL PROVISION IS PRECISELY THE REASON WE ARE
3 ADVANCING FOR THE 90 DAYS.
4 MORE FUNDAMENTALLY THE PLAINTIFFS' ARGUMENT IS
5 PREMISED ON THIS BAZAAR THEORY THAT WE ARE CONDUCTING TWO
6 DIFFERENT PROGRAMS. IF WE REMOVE A NON-CITIZEN 91 DAYS BEFORE
7 AN ELECTION THAT'S REMOVING A REGISTRANT. BUT IF WE REMOVE
8 NON-CITIZEN 90 DAYS BEFORE THE ELECTION ALL OF A SUDDEN WE ARE
9 REMOVING AN INELIGIBLE VOTER. WE ARE REMOVING THE SAME PERSON
10 ON THE PRECISELY SAME GROUNDS.
11 AND AS YOU CAN SEE FROM THE LANGUAGE THEY'RE CITING
12 THE SO-CALLED 90 DAY PROVISION REFERENCES THE PERMANENT REMOVAL
13 PROGRAMS. IT SAYS, A STATE SHALL COMPLETE NOT LATER THAN 90
14 DAYS PRIOR TO THE DATE OF THE NEXT ELECTION. WELL, IN OTHER
15 WORDS, THEY STARTED THE PROGRAM BEFORE THAT AND THEY'VE GOT TO
16 COMPLETE IT AT 90 DAYS.
17 IN OTHER WORDS, IT'S CONTINUATION OF THE SAME PROGRAM.
18 SO IF THEY WANT TO PLAY THIS GAME, I'M PERFECTLY HAPPY TO PLAY
19 THIS GAME AND SAY WE ARE NOT UNDER THE 90 DAY PROVISION AT ALL
20 BECAUSE THAT SAYS THAT ONLY APPLIES TO PROGRAMS THE PURPOSE OF
21 WHICH IS TO SYSTEMICALLY REMOVE THE NAMES OF INELIGIBLE VOTERS.
22 BUT UNDER THEIR OWN CONSTRUCTION OF THE STATUTE OUR
23 PROGRAM AT 91 DAYS IS NOT TO REMOVE INELIGIBLE VOTERS, IT'S TO
24 REMOVE REGISTRANTS. AND EVERYONE AGREES THAT NON-CITIZENS ARE
25 NOT REGISTRANTS.
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1 SO, IN OTHER WORDS, THEY CAN'T AUTOMATICALLY SUGGEST
2 THAT AT DAY 90 ALL OF A SUDDEN OUR PROGRAM CHANGES. IT'S
3 PERFECTLY OKAY ON DAY 91 BUT THEN BECOMES SOMETHING DIFFERENT
4 ON DAY 90. IN BOTH INSTANCES WE ARE REMOVING PEOPLE WHO ARE
5 FALSELY REGISTERED ON THE ROLLS, AND THEIR ANALYSIS FOR THE
6 PERMANENT REMOVAL PROVISION APPLIES EQUALLY TO THIS.
7 THEY SAY THERE IS NO LINK BETWEEN THE TWO PROVISIONS.
8 THE TWO PROVISIONS ARE INEXTRICABLY LINKED. IT'S A
9 CONTINUATION OF THE PRIOR PROGRAM. SO, I REALLY DON'T EVEN
10 UNDERSTAND WHAT THEIR ARGUMENT IS. THEY WOULD APPLY THIS TO
11 SOMETHING AGAIN THAT IS -- THEY KEEP SAYING THIS IS TO AVOID
12 INACCURACY, BUT THEIR THEORY IS A HUNDRED PERCENT ACCURACY IS
13 STILL BARRED.
14 THEY ADMIT, FOOTNOTE SIX OF THEIR REPLY BRIEF, THAT IS
15 FIDEL CASTRO SHOWED UP TO VOTE WE COULDN'T REMOVE HIM FROM OUR
16 VOTING ROLLS, EVEN THOUGH THERE WAS NO DISPUTE AS TO HIS
17 CITIZENSHIP. THEY SAY OUR INTERPRETATION OF THE 90 DAY
18 PROVISION RENDERS IT SUPERFLUOUS. OUR INTERPRETATION IS THE
19 SAME AS ANYBODY'S.
20 WHEN YOU HAVE GONE THROUGH THE 90 DAY PROVISION IT
21 SAYS YOU CAN'T SYSTEMICALLY REMOVE ON THESE BASIS. BUT THEN IT
22 SAYS, AS WAS POINTED OUT, THAT SHALL NOT BE INTERPRETED TO
23 PRECLUDE REMOVAL ON THE BASIS THAT ARE SET FORTH IN A3 AND A4
24 EXCEPT CHANGE OF RESIDENCE. SO, UNDER EVERYBODY'S READING OF
25 THIS STATUTE THE ONLY THING THE 90 DAY PROVISION DOES IS
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1 PRECLUDE YOU FROM REMOVING PEOPLE BECAUSE A CHANGE OF RESIDENCE
2 WITHIN 90 DAYS. EVEN THEN YOU COULD REMOVE THEM IF THEY
3 HAVEN'T VOTED IN THE TWO PRIOR ELECTIONS AND YOU HAVE SENT THEM
4 A MAIL THAT THEY HAVE NOT RETURNED. SO IT'S NOT AN ABSOLUTE
5 THING.
6 I WOULD ARGUE THAT OUR EMPIRICAL BASIS FOR
7 DEMONSTRATING NON-CITIZENSHIP IS AT LEAST AS STRONG AS THE
8 EVIDENCE THAT THESE PEOPLE ARE NO LONGER LIVING THERE JUST
9 BECAUSE THEY DIDN'T RETURN THE MAIL AND THEY DIDN'T VOTE TWICE.
10 THAT'S A RELATIVELY WEAK INFERENCE TO SAY THAT THEY HAVE
11 CHANGED RESIDENCE, WHEREAS OUR USE OF THE SAME DATABASE
12 PROVIDES VIRTUALLY TO THE EXTENT HUMANLY POSSIBLE AN ACCURATE
13 LIST OF NON-CITIZENS. THESE PEOPLE HAVE BEEN IDENTIFIED BY THE
14 FEDERAL GOVERNMENT AS BEING SHORT OF CITIZENSHIP STATUS AND IT
15 IS UPDATED AT, IT SAYS NIGHTLY, BUT AT LEAST EVERY 72 HOURS.
16 SO, THERE IS REALLY NO BASIS TO ACCEPT THEIR ARGUMENT
17 UNLESS YOU ACCEPT THE NOTION THAT WE ARE PERMANENTLY BANNED
18 FROM REMOVING NON-CITIZENS, AND EVEN THEY AGREED THAT THAT'S AN
19 ABSURDITY THAT THE LAW WOULD NEVER PERMIT.
20 CONGRESS DID NOT SIMULTANEOUSLY MAKE IT A CRIME FOR A
21 NON-CITIZEN TO REGISTER AND THEN THEY SAY, BUT YOU CAN'T REMOVE
22 THEM ONCE THEY HAVE SUCCESSFULLY COMMITTED THE CRIME.
23 SO THERE IS THREE WAYS TO INTERPRET THE STATUTE QUITE
24 CONSISTENT WITH LANGUAGE AND LEGISLATIVE HISTORY THAT AVOIDS
25 THIS ABSURD RESULT. THE FIRST ONE AGAIN IS THE ONE THAT
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1 PLAINTIFFS LAID OUT FOR US, THE ONE THAT THE JUSTICE DEPARTMENT
2 HAS NOW ACCEPTED, THE ONE THAT JUDGE HINKLE SET FORTH, WHICH IS
3 NONE OF THIS HAS ANYTHING TO DO -- THIS REMOVAL STUFF HAS
4 NOTHING TO DO WITH PEOPLE WHO WERE IMPROPERLY ON THE LIST IN
5 THE FIRST PLACE.
6 THE STATUTE TALKS ABOUT ELIGIBLE APPLICANTS FOR
7 REGISTRATION. THAT'S WHO IS BEING PROTECTED. THEY WERE NEVER
8 ELIGIBLE. IT DOESN'T PROTECT PEOPLE WHO GOT ON THE LIST
9 BECAUSE THEY COMMITTED A CRIME. THE LEGISLATIVE HISTORY QUITE
10 CLEARLY SAYS, WE ARE NOT INTERFERING WITH THE STATE'S
11 TRADITIONAL ELIGIBILITY CRITERIA SUCH AS CITIZENSHIP IN ANY OF
12 THESE PROVISIONS. SO ALL OF THE TRADITIONAL TOOLS OF STATUTORY
13 CONSTRUCTION AVOIDING ABSURDITY CONSISTENT WITH THE LANGUAGE
14 AND CONSISTENT WITH THE LEGISLATIVE HISTORY SUPPORT OUR VIEW.
15 I THINK THIS IS EVEN EASIER BECAUSE THERE IS A
16 PROVISION THAT PLAINTIFFS DON'T WANT YOU TO FOCUS ON, WHICH IS
17 B OF THIS PROVISION, SUB-SECTION B, WHICH SAYS -- TALKS ABOUT
18 NOT PROGRAMS TO REMOVE IT'S NOT IN THE LANGUAGE THAT'S CITED,
19 IT'S TALKING ABOUT CONFIRMATION OF VOTER REGISTRATION.
20 IN OTHER WORDS, IN ADDITION TO THE 90 DAY REMOVAL
21 PROVISION AND THE PERMANENT REMOVAL PROVISION YOU HAVE A WHOLE
22 DIFFERENT ANIMAL THAT CONGRESS ALLOWED THE STATES TO DO, WHICH
23 IS SUB-SECTION B CALLED CONFIRMATION OF VOTER REGISTRATION, AND
24 THAT ALLOWS YOU TO CONFIRM VOTER REGISTRATION. IT DOESN'T SAY
25 THAT YOU CAN'T DO IT EXCEPT ON THESE IDENTIFIED CRITERIA THAT
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1 ARE IDENTIFIED IN THE REMOVAL PROVISIONS. IT JUST SAYS IT HAS
2 TO BE UNIFORM AND NONDISCRIMINATORY.
3 SO, IN OTHER WORDS, CONGRESS ACTUALLY CONTEMPLATED,
4 LOOK, THERE IS CERTAIN PEOPLE WHO BECOME INELIGIBLE AFTER THEY
5 ARE PROPERLY REGISTERED AND THEY'RE DEALT WITH THROUGH THE
6 REMOVAL PROVISIONS. THEN SOME PEOPLE THAT ARE NEVER ON THE
7 REGISTRATION LISTS LEGALLY IN THE FIRST PLACE, FICTITIOUS,
8 FRAUDULENT THINGS, PEOPLE WHO WERE 15 YEARS OLD WHEN THEY
9 REGISTERED. NON-CITIZENS BEING THE MOST OBVIOUS EXAMPLE. AND
10 YOU'VE GOT A DIFFERENT RESTRICTION ON YOU, STATES, IF YOU ARE
11 JUST SEEKING TO CONFIRM THAT YOUR INITIAL VOTER REGISTRATION
12 WAS OKAY.
13 PLAINTIFFS FOCUS ON THE WORD CURRENT VOTER
14 REGISTRATION. YEAH, YOU NEED TO MAKE SURE THAT YOUR CURRENT
15 VOTING ROLLS ARE -- SEE IF THEY'RE ACCURATE BECAUSE THERE IS NO
16 FRAUDSTERS ON THOSE CURRENT ROLLS. IT'S NOT AS IF THE STATUS
17 CHANGED, THE STATUS FROM THE BEGINNING WAS NO GOOD. JUDGE
18 HINKLE WAS QUITE CLEAR ON THIS.
19 THERE IS AN OBVIOUS DISTINCTION IN THE LAW BETWEEN
20 PEOPLE WHOSE REGISTRATION WAS VOIDED AB INITIO, VOID AT THE
21 OUTSET AND THOSE WHO LATER BECOME PROBLEMATIC BECAUSE OF DEATH,
22 MENTAL INCAPACITY, COMMISSIONS OF CRIMES. THOSE ARE THE
23 EXAMPLES THAT THE REMOVAL PROVISIONS DEAL WITH, AND NOTHING IN
24 THE REMOVAL PROVISION SPEAKS TO THE ENTIRELY SEPARATE PROBLEM
25 OF PEOPLE WHO HAVE FRAUDULENTLY OBTAINED ACCESS TO THE
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1 REGISTRATION LIST.
2 FINALLY. EVEN IF YOU WANTED TO, AND WE DON'T
3 ENCOURAGE YOU TO DO SO, IF YOU WANTED TO JUDGE THIS UNDER THE
4 REMOVAL PROVISIONS ONE OF THE EXCEPTIONS TO THE BAN ON REMOVAL
5 IS FOUND IN A3 CAPITAL B. AND THAT IS, ONE GROUND IS AS
6 PROVIDED BY STATE LAW, COMMA, BY REASON OF CRIMINAL CONVICTION
7 OR MENTAL CAPACITY.
8 NOW, JUDGE HINKLE SAID THE MORE NATURAL READING OF
9 THAT IS IT ONLY APPLIES TO CRIMINAL CONVICTIONS AND MENTAL
10 INCAPACITY. IT DOESN'T APPLY TO ALL THINGS PROVIDED BY STATE
11 LAW. I AGREE THAT'S A MORE PLAUSIBLE INTERPRETATION.
12 BUT CONGRESS CREATED THIS AMBIGUITY BECAUSE WHAT THEY
13 SHOULD HAVE SAID WAS, BY REASON OF CRIMINAL CONVICTION OR
14 MENTAL INCAPACITY AS PROVIDED BY STATE LAW. AND SINCE EVERYONE
15 HERE AGREES THAT IF THERE IS A PLAUSIBLE READING OF THE STATUTE
16 WHICH AVOIDS THE ABSURD RESULT OF PRECLUDING STATES EXCLUDING
17 CRIMINALS FROM THEIR REGISTRATION ROLLS YOU NEED TO ADOPT THAT.
18 THAT'S THEIR STANDARD, NOT NINE. I AM SAYING IT IS A PLAUSIBLE
19 READING OF THAT. I DON'T THINK YOU NEED TO GET TO IT BECAUSE I
20 DON'T THINK THE REMOVAL PROVISIONS SPEAK TO PEOPLE WHO WERE
21 NEVER ON THE REGISTRATION ROLLS ILLEGALLY TO BEGIN WITH, AS
22 PLAINTIFFS AGREE, BUT IF YOU DO GO THAT WAY THAT PROVIDES YET
23 ANOTHER WAY OF DOING THIS.
24 THEY KEEP SAYING THAT WE HAVEN'T CITED A SINGLE CASE
25 WHERE ANYBODY HAS ADOPTED OUR STATUTORY INTERPRETATION. WELL,
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1 I THINK THEY HAVE READ JUDGE HINKLE'S DECISION IN THE JUSTICE
2 DEPARTMENT CASE AND THAT'S EXACTLY WHAT THEY HE DID.
3 UNDER THEIR OWN STANDARD, THEY SAY, LOOK, IF IT'S
4 CLEARLY CONTRARY TO THE INTENTION OF THE DRAFTERS YOU DON'T
5 INTERPRET THE LANGUAGE THAT WAY. WELL, THE SAME PEOPLE WHO
6 DRAFTED THE PROVISION ABOUT WHEN YOU SHOULD REMOVE ARE THE SAME
7 PEOPLE WHO SAID THAT YOU NEED TO LIST ALL OF THE ELIGIBILITY
8 CRITERIA INCLUDING CITIZENSHIP AND YOU NEED TO MAKE THE NEW
9 REGISTRANTS AFFIRM UNDER OATH THAT THEY'RE CITIZENS.
10 SO, IT WOULD BE COMPLETELY CONTRARY TO THE DRAFTERS
11 INTENTIONS TO ELIMINATE WHAT THEY VIEWED AS A CRIME. AND TO
12 ENGAGE IN THIS ABSURD ANALYSIS WHERE I SUPPOSE WHAT WE ARE
13 SUPPOSED TO DO IS HAVE FEDERAL MARSHALS STANDING BY AT THE
14 POLLING PLACE AND WHEN THESE REGISTERED VOTERS, AS THEY PLEDGE
15 TO DO IN THE MIAMI ARTICLE LAST WEEK, GO AHEAD AND VOTE. WE
16 ALLOW THEM TO VINDICATE THEIR RIGHT TO VOTE, THEN WE ARREST
17 THEM AND PUT THEM IN JAIL FOR FIVE YEARS. NO ONE THINKS THAT'S
18 A SENSIBLE WAY TO PROCEED. NO ONE THINKS YOU -- EVEN FROM
19 THEIR PERSPECTIVE WHAT FAVOR ARE YOU DOING ANYBODY BY SETTING
20 UP THIS TRAP AND THEN SENDING THEM TO JAIL? FAR BETTER FROM
21 EVERYONE'S PERSPECTIVE TO PRECLUDE THEM FROM VOTING IN THE
22 FIRST PLACE.
23 AND AGAIN, THAT'S GOT TO BE THE RESULT OF THEIR
24 ARGUMENT BECAUSE THEIR ARGUMENT IS PREMISED ON THE NOTION THAT
25 EVEN IF OUR LIST IS ONE THOUSAND PERCENT ACCURATE WE ARE
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1 UTTERLY POWERLESS TO KEEP CONCEDED NON-CITIZENS OFF OF THE
2 VOTING ROLLS.
3 THE FINAL POINT I WILL MAKE ON THAT IS THEY KEEP
4 SAYING 90 DAYS. IT'S ACTUALLY SINCE MAY 16TH BECAUSE THERE WAS
5 A PRIMARY ON AUGUST 16TH. SO UNDER THEIR THEORY FOR SIX MONTHS
6 BEFORE THE ELECTION WE ARE COMPLETELY HAMSTRUNG IN TRYING TO
7 ENSURE BASIC VOTER INTEGRITY AND AVOID NON-DILUTION OF
8 NON-CITIZENS VOTES.
9 UNLESS YOUR HONOR HAS QUESTIONS I WAS GOING TO TURN
10 QUICKLY TO THE STANDING ISSUE.
11 THE COURT: GO AHEAD. THAT IS FINE.
12 MR. CARVIN: ON THAT, AGAIN, THERE REALLY CAN'T BE ANY
13 IRREPARABLE HARM HERE SINCE THEY WAITED UNTIL THE ELEVENTH HOUR
14 AFTER HAVING MONTHS OF NOTICE ABOUT THIS AND TRY TO JAM THIS
15 PROCEEDING IN. BUT I WILL CUT RIGHT TO THE QUICK OF THIS.
16 THEY CITE BROWNING AGAINST NAACP AND THE BILLUPS CASE,
17 AND THE KEY THING ABOUT THOSE WHERE THEY FOUND THAT THE
18 ORGANIZATIONS HAD STANDING TO CHALLENGE VOTER ID WAS IN THOSE
19 CASES THE ORGANIZATIONS WERE ALLEGING THEY WERE HARMED BY
20 PROPER APPLICATION OF THE LAWS.
21 IN OTHER WORDS, THESE VOTER ID PUTS A BURDEN ON
22 ELIGIBLE VOTERS. WE'VE GOT TO GO HELP THESE PEOPLE NOW. WE
23 GOT TO, YOU KNOW, GO KIND THIS ID, BRING IT TO THE REGISTRATION
24 OFFICE, HERE IS HOW YOU GET YOUR BIRTH CERTIFICATE OR, YOU
25 KNOW, GET THE FREE VOTER ID FROM THE THING. SO IF THE LAW
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1 OPERATED EXACTLY AS EVERYONE THOUGHT IT SHOULD THESE PEOPLE
2 COULD REASONABLY PREDICT THESE BURDENS.
3 THIS IS ENTIRELY DIFFERENT. THEY'RE NOT ALLEGING THAT
4 IF WE EXCLUDE NON-CITIZENS THAT ANY NON-CITIZEN HAS SOME
5 LEGALLY COGNIZABLE RIGHT TO VOTE. THEIR WITNESSES CONCEDED IT.
6 COUNSEL CONCEDED IT THAT NO, NO, WE ARE NOT TRYING TO PROTECT
7 THE NON-CITIZENS.
8 SO, IF OUR PROGRAM OPERATES THE WAY IT SHOULD EVERYONE
9 AGREES THAT THEY'RE NOT GOING TO EXPEND ANY RECOURSE RESOURCES
10 AND NOBODY IS GOING TO BE INJURED. THAT'S WHAT FUNDAMENTALLY
11 DISTINGUISHES THE CASES THEY'RE RELYING ON.
12 THE ONLY WAY THEY THAT ARE GOING TO EXPEND ANY
13 RESOURCES, AS THE TESTIMONY THIS MORNING VIVIDLY ILLUSTRATED,
14 WAS IF IN THE HIGHLY UNLIKELY CIRCUMSTANCES A MISTAKE IS MADE.
15 WELL, A MISTAKE IS SOMETHING THAT THEY HAVE TO PREDICT IN THE
16 FUTURE WILL OCCUR. THEY HAVE GIVEN THE COURT NO CREDIBLE
17 REASON TO BELIEVE OTHER THAN ADD ATTACKS ON THE SECRETARY THAT
18 TAKING ONE LIST AND COMPARING IT TO THE FLORIDA VOTER ROLLS, AN
19 ACCURATE IDENTIFICATION OF WHO NON-CITIZENS ARE. LET'S CONFIRM
20 THEIR SOCIAL SECURITY NUMBER. LET'S CONFIRM THEIR DRIVER'S
21 LICENSE NUMBER.
22 THIS ALGORITHM THAT COUNSEL WAS COMPLAINING ABOUT IS
23 ON TOP OF THAT TO MAKE LET'S SURE FROM EVERY CONCEIVABLE
24 PERSPECTIVE WE'RE MAKING SURE THAT JOHN JONES ON THIS LIST IS
25 THE SAME JOHN JONES ON OUR VOTER LIST. ONLY IF THEY MESS THAT
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1 UP DOES THIS MISTAKE OCCUR. THEY CAN'T GIVE YOU ANY REASON TO
2 BELIEVE THAT THAT IS GOING TO OCCUR.
3 I THINK THE MOST STERLING EXAMPLE OF THAT IS THE LIST
4 HAS BEEN OUT, AS WAS POINTED OUT WAS IN THE MIAMI HERALD LAST
5 WEEK. IT'S BEEN PUBLICLY AVAILABLE. ALL THEY HAVE TO DO IS
6 LOOK AT THE LIST, SEE IF ANYBODY THAT BELONGS TO THE PUERTO
7 RICAN ORGANIZATION OR THE SCIU IS ON IT AND THEN THEY CAN COME
8 IN AND THEY CAN TURN THEIR RAMPANT SPECULATION INTO A FACT.
9 I HIGHLY DOUBT THAT THESE SOPHISTICATED LAWYERS WERE
10 SO DUMB THAT THEY HAVEN'T LOOKED AT THIS LIST AND HAVEN'T COME
11 UP WITH SOMEBODY WHO IS A MEMBER OF THOSE ORGANIZATIONS AND WHO
12 IS A CITIZEN AND HAVEN'T BROUGHT IT TO THE COURT'S ATTENTION.
13 BUT SURELY IT IS INCUMBENT UPON THEM TO PROVIDE SOMETHING OTHER
14 THAN CONJECTURE AND HYPOTHESIS ABOUT HOW MISTAKES WILL HAPPEN
15 AS OPPOSED TO ACTUAL EVIDENCE THAT IT HAS HAPPENED SINCE THAT
16 INFORMATION IS FULLY AVAILABLE TO THEM.
17 MY FINAL POINT ON THIS IS, THE OTHER TWO THINGS THAT
18 HAPPENED IN THE NAACP CASE WHERE THE COURT FOUND THAT IT WAS
19 HIGHLY UNLIKELY THAT IT WOULD NOT A FACT THEIR MEMBERS. IN
20 OTHER WORDS, IT WAS HIGHLY LIKELY THAT IT WOULD AFFECT THEIR
21 MEMBERS GIVEN THE 20,000 AND GIVEN THE POINT I MADE ABOUT HOW
22 EVERYBODY IS GOING TO HAVE PROBLEMS WITH VOTER ID.
23 THEY HAVEN'T COME CLOSE -- I DON'T EVEN THINK THEY
24 HAVE ALLEGED THAT OUR MISTAKE IS HIGHLY LIKELY, A; AND, B, IS
25 HIGHLY LIKELY TO APPLY TO ONE OF THESE MEMBERSHIP GROUPS SINCE
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1 THE PUERTO RICAN GROUP HAS APPROXIMATELY 60, 70 MEMBERS, THAT'S
2 A VIRTUAL IMPOSSIBILITY. AND SINCE THE VAST MAJORITY OF THE
3 SCIU ARE CITIZENS THAT'S ALSO HIGHLY UNLIKELY. THE FIRST RUN
4 THROUGH WITH THE 2,600 ONLY PRODUCED THREE PEOPLE, ONE OF WHOM
5 NEVER GOT THE LETTER. AND SURELY THEY CAN GO BACK TO THESE TWO
6 PEOPLE AND SAY, DID YOU GET THE LETTER THIS TIME WHEN THEY
7 SWITCHED? THEY HAVEN'T EVEN DONE THE MINIMAL CHECKING,
8 ACCORDING TO THEM. I SUSPECT THEY HAVE AND FOUND OUT THEY
9 DIDN'T GET A LETTER, BUT I'LL LEAVE THAT WHERE IT IS, BECAUSE
10 IT IS THEIR BURDEN TO COME FORWARD WITH SOMETHING.
11 THE FINAL POINT IS, THE ENTIRE THEORY OF BOTH BILLUPS
12 AND BROWNING WAS, WE WERE DOING THESE PROGRAMS. WE WERE
13 SPENDING THIS AMOUNT OF MONEY. NOW WE HAVE TAKEN A POT OF
14 MONEY AND A POT OF TRAINING AND WE HAVE HAD TO CANCEL THESE AND
15 DO THIS. WE HAVE DIVERTED RESOURCES.
16 YOU HEARD THE TESTIMONY, YOUR HONOR, AND I WON'T
17 BELABOR IT, THEY COULDN'T TELL YOU A SINGLE PROGRAM THEY HAVE
18 CANCELLED, A SINGLE PERSON THAT IS NO LONGER -- YOU KNOW, A
19 SINGLE EXPENDITURE THEY HAVE MADE. THEIR ENTIRE EXPENDITURES
20 WOULD BE BASED ON THE NOTION, IF, AND ONLY IF ONE OF OUR
21 CITIZEN MEMBERS IS WRONGLY IDENTIFIED THEN WE ARE GOING TO
22 SWING INTO ACTION AND HELP THEM GET ON THE ROLLS.
23 BUT SINCE IT'S SPECULATIVE AND COMPLETELY CONJECTURAL
24 THAT THERE EVER WILL BE SUCH A PLAINTIFF THEN THEIR
25 EXPENDITURES ARE JUST AS CONJECTURAL AND HYPOTHETICAL AS THE
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1 INDIVIDUAL MEMBER BEING ADVERSELY AFFECTED IN THE FIRST PLACE.
2 THIS EXAMINE EXPENDITURE, YOU KNOW, STANDING IS NOT
3 SOME WAY AROUND NORMAL ARTICLE THREE INJURY. THEY ACTUALLY
4 HAVE TO PROVE IT. IT DOESN'T SAY, OH, YOU CAN SPECULATE ABOUT
5 THAT AND IT'S OKAY. AND SINCE THEIR EXPENDITURES ARE JUST AS
6 SPECULATIVE AS A MISTAKE BEING MADE BECAUSE THEY'RE ONLY GOING
7 TO EXPEND MONEY WHEN A MISTAKE IS BEING MADE THIS
8 ORGANIZATIONAL STANDING HAS NOTHING TO THE BASIC PROBLEMS WITH
9 THEIR ARTICLE THREE REQUIREMENT.
10 UNLESS YOUR HONOR HAS ADDITIONAL QUESTIONS I WOULD
11 REST AT THAT POINT.
12 THE COURT: NO. THANK YOU VERY MUCH. I APPRECIATE
13 YOUR COMMENTS.
14 MR. CARVIN: THANK YOU.
15 THE COURT: I WILL GIVE FIVE MINUTES FOR REBUTTAL.
16 MR. GOLDMAN: YOUR HONOR, I WANT TO START WITH
17 STANDING.
18 MR. CARVIN SUGGESTS -- TALKS ABOUT A LIST THAT WAS
19 PUBLISHED THE IN THE MIAMI HERALD LAST WEEK AND SUGGESTS WE
20 MUST HAVE ACCESS TO THAT LIST. FIRST OF ALL, THERE IS NO
21 EVIDENCE THAT LIST IN THE RECORD. SECONDLY, WE HAVEN'T GOTTEN
22 ACCESS TO LIST, IT WASN'T PUBLISHED. THE LIST ITSELF WAS NOT
23 PUBLISHED IN THE MIAMI HERALD AND THERE IS NO EVIDENCE IN THE
24 RECORD THAT THOSE ARE THE ONLY PEOPLE BEING PURGED IN ANY CASE.
25 HE -- AND IF WE ARE GOING TO BRING IN STUFF FROM THE
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1 MIAMI HERALD, WHICH ISN'T IN THE RECORD, THAT SAME ARTICLE
2 TALKS ABOUT A CITIZEN WHO WAS ON THAT LIST OF 198 PEOPLE.
3 FURTHER, WITH RESPECT TO STANDING, HE SAYS THAT
4 BROWNING WAS ABOUT RESOURCES CURRENTLY BEING USED, AND SO
5 FORTH. I READ YOU THE LANGUAGE FROM THE AFFIDAVITS IN THOSE
6 CASES THAT THE COURT FOUND SUFFICIENT. THE LANGUAGE OF THE
7 AFFIDAVITS HERE IS IDENTICAL OR MORE SPECIFIC AND WE HAVE MORE
8 SPECIFIC TESTIMONY THAT WE HAVE PUT ON.
9 HE ALSO TALKS ABOUT A CLAIM THAT THIS IS GOING TO NOT
10 HURT ANYBODY IN THESE ORGANIZATIONS. AGAIN, WE ALREADY KNOW
11 FROM WHAT THEY DID BEFORE THAT ON THE 2,600 PERSON LIST THERE
12 WERE THREE PEOPLE ON THE SCIU THAT WERE ON THE LIST AND THAT
13 CAUSED THE EXPENDITURE OF RESOURCES. WE HAVE TESTIMONY THAT
14 THAT SAME THING IS GOING TO CAUSE THE EXPENDITURE OF RESOURCES
15 NOW.
16 NOW, HE SAYS THAT THERE ONLY -- IN THOSE CASES, THE
17 NAACP WAS HARMED BY THE PROPER APPLICATION OF THE LAW. WELL,
18 THE PURGE HERE IS DIRECT VIOLATION OF THE LAW WHICH -- WHICH --
19 AS WE WILL TALK ABOUT IN A MINUTE, AND THAT'S WHAT LEADS TO THE
20 HARM HERE. IT FORCES THE PLAINTIFF ORGANIZATIONS TO SPEND
21 RESOURCES TO IDENTIFY WHETHER THE PEOPLE ON THE LIST IN FACT
22 ARE THEIR MEMBERS, IN FACT ACCURATELY NON-CITIZENS OR NOT, AND
23 THEN TO EDUCATE THEM AND TO DEAL WITH THE CHILLING EFFECT OF
24 THEIR -- ON THEIR OTHER MEMBERS. SO ALL OF THAT, THAT'S NOT A
25 BASIS OF DISTINGUISHING THOSE CASES.
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1 NOW, TURNING BACK TO THE MERITS. MR. CARVIN SUGGESTS
2 THAT WE ARE TRYING TO GET INELIGIBLE CITIZENS TO VOTE AND THAT
3 CAN'T POSSIBLY BE PERMITTED. BUT AGAIN, THAT'S NOT WHAT WE ARE
4 TRYING TO DO. WE ARE SAYING NON-CITIZENS CAN BE REMOVED
5 OUTSIDE THE 90 DAYS, AND WITHIN THE 90 DAYS THEY CAN'T BE
6 REMOVED ON A SYSTEMATIC BASIS.
7 HE SAYS, HEY, IT'S THE SAME PROGRAM AT 91 DAYS THAT IT
8 IS AT 90 DAYS. YEAH. BUT THERE IS A STATUTE OF DISTINCTION.
9 THE STATUTE SAYS YOU CAN'T DO WITHIN IN 90 DAYS THE SAME STUFF
10 THAT YOU COULD DO OUTSIDE THE 90 DAYS.
11 HE SALES, WELL, MAYBE -- MAYBE EVERYTHING IS GOING TO
12 BE A HUNDRED PERCENT CORRECT. BUT THE WHOLE POINT HERE IS
13 CONGRESS WITH ITS EXPERIENCE ON PAST PURGES SAID THAT THE RISK
14 OF IMPACT -- OF ERRORS AND AN IMPACT ON ELIGIBLE VOTERS IS TOO
15 HIGH. AND UNDER MR. CARVIN'S READING THIS STATUTORY PROVISION
16 MAKES NO SENSE. HE SAYS THAT NO COURT COULD POSSIBLY SAY
17 CONGRESS MEANT TO BAR SYSTEMATIC REMOVALS OF PEOPLE WHO ARE
18 INELIGIBLE. WELL, WHAT DOES THE STATUTE SAY? IT BARS
19 SYSTEMATIC REMOVALS OF SOME PEOPLE WHO ARE INELIGIBLE
20 CERTAINLY, HE SAYS THAT. HE ADMITS THAT IT BARS SYSTEMATIC
21 REMOVALS OF PEOPLE WHO HAVE CHANGED ADDRESSES, INCLUDING PEOPLE
22 WHO HAVE CHANGED ADDRESSES TO ANOTHER STATE AND ARE
23 NON-CITIZENS.
24 AND, SO CLEARLY CONGRESS DID MEAN THAT. AND THE ONLY
25 QUESTION IS, DID THEY MEAN MORNING THAT. AND AGAIN, HE POINTS
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1 TO NOTHING NO THE STATUTORY LANGUAGE THAT SAYS CONGRESS DID
2 MEAN THAT.
3 THE COURT: YOU HAVE TWO MINUTES REMAINING.
4 MR. GOLDMAN: OKAY. HE TRIES TO ARGUE FOR A STATUTORY
5 INTERPRETATION BASED ON A PROVISION, ONE OF THE EXCEPTIONS
6 WHICH SAYS -- WHICH SAYS WHEN YOU LOOK AT THE GENERAL REMOVAL
7 PROVISION THAT PEOPLE CAN BE REMOVED BASED -- BASED ON STATE
8 LAW FOR MENTAL INCAPACITY OR I BELIEVE FELONY CONVICTIONS. IT
9 DOESN'T SAY, BY STATE LAW ALONE.
10 JUDGE HINKLE CONSIDERED AND REJECTED THAT SAME
11 ARGUMENT, BECAUSE IF THE STATUTE ALLOWED ANY REMOVALS BASED ON
12 STATE LAW, THIS 90 DAY PROVISION WOULD BE IRRELEVANT. THE
13 STATE COULD DO WHATEVER THE HECK IT WANTED AS LONG AS ITS LAW
14 SAID SO. THERE WOULD BE NO POINT I PUTTING IN THE STATUTE
15 OTHER BASES FOR PERMISSIBLE REMOVAL IF THE STATE COULD REMOVE
16 ANYBODY BASED ON STATE LAW NO MATTER WHAT. AND THERE WOULD BE
17 NO REASON FOR THE GENERAL RULE PROVISION TO EXCLUDE ALL SORTS
18 OF REMOVAL WITH PERTINENT EXCEPTIONS BECAUSE THE STATE COULD DO
19 WHATEVER IT WANTED.
20 HE ALSO TRIES TO POINT TO SUB-SECTION B OF THE
21 STATUTE. AND SUB-SECTION B, WHICH HE DOESN'T READ ANY OF THE
22 LANGUAGE ON OTHER THAN THE HEADING IS ACTUALLY RESTRICTIONS ON
23 WHAT THE STATE CAN DO. IT'S ALSO IN THAT SUB-SECTION IT
24 INCLUDES BOTH PEOPLE WHO HAVE -- WHO WERE ONCE ELIGIBLE TO
25 VOTE, AS WELL AS PEOPLE WHO WERE NEVER ELIGIBLE TO VOTE.
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1 THAT'S CLEAR BECAUSE THE ONE TYPE OF REMOVAL THAT'S TALKED
2 ABOUT IN THAT SECTION IS PEOPLE WHO HAVE CHANGED THEIR ADDRESS.
3 THE COURT: REGARDING VOTER REGISTRATION CONFIRMATION.
4 MR. GOLDMAN: CORRECT. THAT'S CORRECT.
5 THAT VOTER REGISTRATION CONFIRMATION SECTION INCLUDES
6 PEOPLE WHO WERE ELIGIBLE AT THE TIME THEY WERE REGISTERED
7 BECAUSE WHAT IT SPECIFICALLY TALKS ABOUT IS CHANGE OF ADDRESS.
8 AND, SO IF YOU SAY --
9 THE COURT: ARE YOU GOING TO NEED TO WRAP UP.
10 MR. GOLDMAN: OKAY. SO YOU READ THAT PROVISION TO
11 ALLOW VOTER CONFIRMATION HERE YOU ARE READING OUT THE 90 DAY
12 PROVISION ALTOGETHER BECAUSE IT INCLUDES PEOPLE WHO WERE ONCE
13 ELIGIBLE AND NEVER ELIGIBLE.
14 IN SUM, THIS PROVISION MEANS WHAT IT SAYS. THERE IS
15 NOTHING HE SAYS THAT -- HE NEVER TALKED ABOUT A WORD IN THAT
16 PROVISION THAT ALLOWS THE INTERPRETATION THEY ADVOCATE, AND HE
17 DOESN'T EXPLAIN AT ALL WHY HIS INTERPRETATION IS NECESSARY TO
18 BE CONSISTENT WITH THE PURPOSE OF CONGRESS WITH RESPECT TO THIS
19 PROVISION WHICH IS BARRING ANY REMOVALS -- SYSTEMATIC REMOVALS
20 WITHIN 90 DAYS FOR THE PURPOSE OF PROTECTING CITIZENS.
21 YOU WANT ALLOW REMOVAL OF NON-CITIZENS, READ AN
22 EXCEPTION NOT A DIFFERENT PROVISION OR READ IT AS WE SUGGESTED
23 BASED ON THE TERM REGISTRANT. THAT HAS NOTHING TO DO WITH THIS
24 PROVISION.
25 THE COURT: ALL RIGHT, COUNSEL, THANK YOU.
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1 MR. CARVIN: YOUR HONOR, NOT TO -- COUNSEL REFERENCED
2 THE MIAMI HERALD ARTICLE AND HE SUGGESTED THAT -- WITHOUT
3 OBJECTION I WILL INTRODUCE THAT FOR THE COURT'S CONSIDERATION.
4 THE COURT: ANY OBJECTION?
5 MR. GOLDMAN: I GUESS I DO OBJECT TO THE EXTENT THAT
6 IT'S -- THAT IT IS AN ATTEMPT TO CHANGE THE RECORD HERE.
7 THE COURT: WELL, IT WOULD BE PART OF THE RECORD.
8 MR. CARVIN: I AM NOT OFFERING IT UP FOR THE TRUTH OF
9 THE MATTER ASSERTED. IT TALKS ABOUT THE AVAILABILITY OF THE
10 LIST AND THE PEOPLE WHO PLANNING ON VOTING.
11 THE COURT: BUT IT WOULD BE PART OF THE RECORD.
12 MR. GOLDMAN: THAT'S FINE.
13 THE COURT: THIS WILL BE DEFENDANTS' EXHIBITS -- YOU
14 WILL NEED TO MARK THIS NOW. IT WE DO NOT HAVE ANY STICKERS
15 ANYMORE.
16 MR. CARVIN: IS WRITING OKAY?
17 THE COURT: YES. JUST MARK IT DEFENDANTS' EXHIBIT
18 NUMBER 1 AND PUT THE CASE NUMBER ON IT.
19 SO THIS WILL BE THE MIAMI HERALD ARTICLE OF WHAT DATE?
20 MR. CARVIN: 9-26.
21 THE COURT: ALL RIGHT. DEFENDANTS' NUMBER 1 IS IN
22 EVIDENCE.
23 [DEFENSE EXHIBIT 1 RECEIVED IN EVIDENCE].
24 MR. CARVIN: THANK YOU, YOUR HONOR.
25 THE COURT: ALL RIGHT. THANK YOU.
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1 COUNSEL, I AM GOING TO ORDER THAT THE TRANSCRIPT OF
2 THIS HEARING BE TRANSCRIBED ON AN EXPEDITED BASIS, EACH SIDE TO
3 BARE ONE-HALF OF THE COST. SO YOU CAN CHECK WITH MY COURT
4 REPORTER TO GET HIS ADDRESS AND PHONE NUMBER.
5 ALL RIGHT. THANK YOU VERY MUCH.
6 I WILL TRY TO GET A RULING OUT ON THIS MATTER
7 HOPEFULLY SOMETIME THIS WEEK.
8 MR. GOLDMAN: THANK YOU, YOUR HONOR.
9 THE COURT: ANYTHING ELSE FROM THE PLAINTIFFS?
10 MR. GOLDMAN: NOTHING, YOUR HONOR. THANK YOU.
11 THE COURT: FROM THE DEFENSE?
12 MR. CARVIN: NO, YOUR HONOR. THANK YOU.
13 THE COURT: ALL RIGHT, COUNSEL, THANK YOU VERY MUCH.
14 EVERYONE HAVE A GREAT WEEK.
15 THE COURT IS IN RECESS.
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3 C E R T I F I C A T E
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6 UNITED STATES OF AMERICA
7 SOUTHERN DISTRICT OF FLORIDA
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10 I, CARL SCHANZLEH, OFFICIAL COURT REPORTER OF THE UNITED
11 STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, DO
12 HEREBY CERTIFY THAT THE FOREGOING 86 PAGES CONSTITUTE A TRUE
13 TRANSCRIPT OF THE PROCEEDINGS HAD BEFORE THE SAID COURT HELD IN
14 THE CITY OF FORT LAUDERDALE, FLORIDA, IN THE MATTER THEREIN
15 STATED.
16 IN TESTIMONY WHEREOF, I HEREUNTO SET MY HAND ON THIS 2ND
17 DAY OF OCTOBER 2012.
18
19 /S/CARL SCHANZLEH CARL SCHANZLEH, RPR-CM
20 OFFICIAL FEDERAL COURT REPORTER 299 EAST BROWARD BLVD., 202B
21 FORT LAUDERDALE, FL 33301 TELEPHONE 954/769-5488
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