1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ... · CARL SCHANZLEH 22 OFFICIAL COURT REPORTER U. S. COURTHOUSE 23 299 E. BROWARD BLVD., 202B FORT LAUDERDALE, FLORIDA 33301

1

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

25

Case 1:12-cv-22282-WJZ Document 105 Entered on FLSD Docket 10/02/2012 Page 1 of 87

2

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

10

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

19

20

21

22

23

24

25


3

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.


13 MS. ROGERS: KRISTEN ROGERS FROM JENNER & BLOCK.


15 MR. DELEON: JOHN DELEON, CHAVEZ & DELEON, LOCAL

16 COUNSEL. GOOD MORNING, JUDGE.


18 MS. MASTERS: GOOD MORNING, YOUR HONOR. LORELIE

19 MASTERS FROM JENNER & BLOCK.


21 MR. CARVIN: GOOD MORNING, YOUR HONOR. MICHAEL CARVIN

22 FROM JONES DAY REPRESENTING THE SECRETARY.


24 MR. NORDBY: GOOD MORNING, YOUR HONOR. DAN NORDBY,

25 GENERAL COUNSEL FOR THE FLORIDA DEPARTMENT OF STATE ALSO


4

1 REPRESENTING THE SECRETARY OF STATE DETZNER.


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


5

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 --


6

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


7

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


8

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


9

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


10

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


11

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


12

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


13

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


14

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


15

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


16

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.


17


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


18

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


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?


20

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


21

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


22

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.


23

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?


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


24

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?


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


25

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


26

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.


27

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.


28

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


29

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,


30

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


31

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.


32

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


33

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


34

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


35

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


36

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,


37

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?


38

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.


39

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.


40

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 --


41

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.


42

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


43

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


44

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


45

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


46

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


47

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


48

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


49

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


50

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


51

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 --


52

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


53

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


54

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


55

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


56

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.


57

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


58

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


59

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.


60

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.


61

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


62

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 --


63

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


64

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


65

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.


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.


66

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


67

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


68

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


69

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.


70

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


71

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


72

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


73

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


74

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,


75

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


76

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


77

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


78

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


79

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


80

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


81

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.


82

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


83

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.



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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.

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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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Documents

1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ... · CARL SCHANZLEH 22 OFFICIAL COURT REPORTER U. S. COURTHOUSE 23 299 E. BROWARD BLVD., 202B FORT LAUDERDALE, FLORIDA 33301