counteract the effects of this law. >> i have another factual question. you know, you talk about the 72 new early voting sites. is there any evidence in the record in terms of whether they were located in black or white communities or republican or democratic areas? >> well, your honor, i think one thing that i'd like -- >> i'm interested in your explanation, but is there anything in the record about that? >> i don't believe so, and if i'm wrong, i'll let my colleagues correct me on that. >> okay, now. >> so one thing that i think is important to clarify in our challenge to the early voting changes in 589, the united states is not challenging the only portion of the law that defendants have asserted a rationale for which is, you know, equalizing the locations within counties. we're not challenging that. we are challenging the cutbacks to the number of days of early voting. and that is something for which the defendants have had no rationale -- >> i thought part of your argument, maybe i've

misunderstood your argument, was that voting, one of the problems was the board of elections was given this authority to move voting sites around, and they could in that way discriminate against minority voters. is that not part of your plan? >> with that is not part of our claim. in fact, in the reverse sort of the state has relied more on the fact that the location of early voting centers and arguing that they, you know, were used to benefit african-american and democratic voters. we're not making a claim about the location of the early voting centers. if anything, we think that the state's reliance on that kind of argument is basically an admission of what the facts in this race showed, that race and party -- >> then i don't understand why that isn't part of your race and party argument. >> well -- >> that's what i'm asking you about. >> we're not claiming that the new locations, the old locations discriminated against african-american voters. what we're claiming is the cutbacks to early voting,

eliminating seven days and particularly eliminating the ability of a sunday where the record shows that in 2008 49% of the voters who used that for african-american. in 2012, that eliminated sunday. 43%. that's where the disproportionate impact, is in the cut to the number of days. we're not challenging the location issues under the bill. >> so the answer to my original question is because you believe there was a legal error, we do not have to afford deference to the district court's emphasis? >> no. the case-critical facts before the court aren't contested as even the district court in closing said. you all could have submitted a lot of this case by stipulation. we agree. it's the inferences that the district court drew from those facts and because of the framework that it wrongly adopted. in the case of the results claim, it's elevating turnout

above every other kind of metric where, you know, to say as long as aggregate turnout goes off, as long as more black voters voted in 2014 than voted in 2010, you can't have a discriminatory burden. and that's simply not the case. with something like same-day registration, it's not just disparate use. this isn't just a disparate use statute. it's that african-american be voters are more likely to use that, and they're more likely to use that because of reasons connected to a history of discrimination and, importantly, the removal of that disparately burdens and amplifies the effects of that discrimination because of the literacy deficits. and that's not just speculation. the best of it in some of that is in the incomplete voter registration coup that you see in 2014 -- queue that you see in 2014. more problems submitting voter registration applications, failing to check a box or something, they're disproportionately african-american. and taking away same-day registration where you had an

opportunity to correct those errors is going to disparately burden african-americans. and so that's a way in which, you know, in particular the burdens that the law imposes are qume la they've and greater -- cumulative and greater. you take away early voting, you take away the opportunity for african-american voters to use same-day registration during that period, the more you take away that early voting period where voters can show up to any precinct, the more likely they are to end up in the wrong precinct on election day. >> what is your best evidence connecting that burden to the historical discrimination? >> i mean, i think the test that this court set out properly is that, you know, you start with a discriminatory burden, and so we show that through the disparate use, and we also show that through the socioeconomic effects of discrimination that amplify the fact that it's going to be more difficult for voters

to navigate the process in north carolina without those mechanisms. so, you know, i'd give an example of a voter like gwendolyn farrington. i think some of the individual voters bring to light the uncontested numerical, socioeconomic and disparate use testimony. she's a voter who works six days a week, 12 hours a day. she had voted early in 2008 and 2012. she didn't have time to vote early during the compressed early voting period in 2014. she voted near her workplace because she worked on election day from 6 a.m. to 6 p.m., and she couldn't have gotten to her correct polling place in the time allotted because she had to pick up her adult children like 27 percent of african-americans, three times higher than whites. there are transportation difficulties in her family where multiple adults rely on one car. you see, you know, the same example of carolyn cunningham and the ways in which the

burdens in this case are cumulative. she was a first-time voter who used souls to the polls in a prior election. he works throe jobs to make ends -- three jobs to make ends meet. on election day she didn't know where her polling place was, so she voted close to her job. even if pollsters had told her she was voting in the incorrect precinct, she wouldn't have had time because she risks penalties for being just a few minutes late in her -- >> thank you. maybe you can just close. your red light is on. >> okay. thank you very much, your honor. [background sounds]

>> may it please the court, i am penda hair. good morning, your honors. i am here on behalf of the north carolina state conference of the naacp and other plaintiffs in that case, many of whom are here in the courtroom today. i will primarily address the section 2 claims but hope to comment briefly on the racial intent. and we do, the north carolina naacp is asserting both the constitutional and the section 2 racial intent claim. >> your comments will focus on section 2 insofar as resultsesome. >> yes. i plan to primarily focus on results. your honors, the plaintiffs after being with you in 2014 went to trial, actually two trials. and in those trials, we applied the framework from the jingles case and from this court's league of women voters case in

terms of how to prove a textbook section 2 case. and ms. baldwin talked briefly about a that, so i just want to summarize that, and then i want to talk about the errors that the district court made that caused -- as you asked, your honor -- the infor instances drawn by the -- inferences drawn by the district court to be tainted by legal error. but per the league of women voters case, we proved three critical case sets of fact; one, african-americans disproportionately use same-day registration out of precinct and the other eliminated practices and disproportionately do not have photo id. and in the case of most of those practices, those disparities were proven to be statistically significant which means they are not random, which means under all of race discrimination law

of statistical significance and disparity tells you you need to look further. it doesn't tell you you need to prevail, but it tells you you need to look further. and that's what the second and third prongs of the league of women voters test tell us. >> could i stop you for just a minute? >> sure. >> about these statistics. do you believe that section 2 has a de minimis impact threshold? for example, if out of precinct voting only impacted 20 people, would it be a liable claim? >> 20 -- i'm sorry, 20 people but racially disproportionate? >> this is your section 2 results. >> right. right. >> 20 people. >> 20 people are affected and it's racially disproportionate, i think that you would meet that first, and and i don't know with 20 people whether the statistical significance test would be possible, but you might

meet the disproportionate use prong, but you probably would not succeed on the rest of the, of the test particularly when you get to the state's justification for what it is doing. if it's eliminating a practice that only effects 20 people, i think that in the totality of the circumstances that claim might not succeed. >> so there is some bottom. >> i mean, i think you have to apply the total the city of the circumstances in -- totality of the circumstances in all situations. but as a voting rights lawyer looking at that, i would not expect a claim to succeed unless there were some unusual fact that i don't know about here. >> would that answer be somewhat different if we were addressing the section 2 intentional discrimination which was just addressed as opposed to the section 2 results? >> yes.

an intentional discrimination require -- intentional discrimination, that's the end of it. the law is invalid and needs to be enjoined if it is tainted by, in part by parable intent. -- by racial intent. yes. so let me, let me proceed to the second and third prongs which is once you have disparate use, that is not always true contrary to some of the claims from defendants. we also proved as ms. baldwin said a connection between the state's thwarted racial history and its current impacts or vestiges of racial discrimination that exist and impact of african-american and latino voters in the state today. and some of those connections are described on, i think, pages 12-14 of our reply brief. and as -- and in terms of the

case critical fact that the district court found, the district court did find that connection between vestiges and eliminated practices. for example, the district court said it's easy to see a connection between certain reasons for ending up in the incomplete queue and literacy. and the district court then found that african-americans, a vestige of discrimination is literacy, and the benchmark electoral practice which is same-day registration produces virtually no incomplete registrations, that is the ameal yourtive interaction that the league of women voters test shows us is a classic case of a section 2 violation. now, what caused the district court once you get to those three critical facts and we proved eight of the senate factors, what led the district court astray in not ruling in favor of plaintiffs?

and the first thing that the district court did is it created a new causation requirement that's not been required in any section 2 case or any governing law. and that causation requirement instead of looking at the connection between the vestige, the eliminated practice and -- yes, the vestige and eliminated practice, the district court said you have to prove that the eliminated practices caused an increase in registration or turnout. that is not the causation requirement from league of women voters or any other precedent that's governing this case. and, for example, the district court said on page 347 of its opinion, plaintiffs failed to carry their burden of showing that same-day registration is responsible for the african-american lead over all other races in registration.

that is -- and said the same thing on page 355 about turnout. that is not a causation requirement in the case law, and that is the primary mistake that the district court made. and then it -- >> what -- i'm sorry. tell me what it should have said instead. >> what the district court should have done, we established the three prongs of league of women voters, and then we proved eight of the senate factors. and in those circumstances, the district court should have found -- >> i understand the bottom line of what you want -- >> right. >> of course, if that was really so, you'd have moved for summary judgment. so there were factual disputes, right? >> i think -- >> i was really going to an easier question for you. i won't make you claim to me why you didn't go to summary judgment if all the facts were many your favor. but what i would like to know is he made this causation analysis,

and what should the analysis have been instead, is the easier question i'm answering you. >> right. i'm going to -- i will answer that question. i will say briefly at the beginning there were facts in dispute. the district court found the critical facts in our favor. and that is -- so what the district court should have done, i mean, is -- >> this question, judge motz's question is a relatively simple question. s that is you are saying what the district court -- [inaudible] what she is asking is what should he have applied. >> right. >> that's pretty straightforward. >> and -- [laughter] is and i think that the confusion is he did both. he applied the correct standard, and he found all of the facts that lead to a section 2 violation. and then he went -- and that was enough. that plus the senate factors, that is the only causation requirement.

so then he, instead of moving forward to the next step which would have been fine the violation, he veered off the road into a new causation requirement. so there was nothing more that the district court needed to do other than apply the league of women voters test which he did and found those facts in our favor. and i think that the district court, i mean, the veering off the road really is exemplified by the district court's reliance on the 2014 turnout data to essentially trump the actual evidence that plaintiffs had of both burden and of a connection of the burden to the vest ims of discrimination. vestiges of discrimination. >> so let me ask you this question. if we even under the req test as

you indicated here, what -- and the same question i asked the earlier attorney -- what would be your best evidence to show this connection between this burden and the historical discrimination? >> and that evidence is set out on page 12-14 of our reply brief, and we presented evidence on each claim. so for same-day registration, we showed literacy disadvantages as well as transportation disadvantages all connected to that same-day registration helped to ameliorate. because you only have to go once and register and vote. and if you have any literacy issues, there are people there who will make sure that you don't leave something out, forget to check a box and are not, your registration is not processed. and we did that for each of the,

each of the claims. and different evidence to connect the eliminated practice to the vestige specific to that particular claim. i know i don't have much time left, so i'm going to make -- i would like to make a couple of comments on intentional discrimination if i may. and there what i would say is -- >> section 2 intentional discrimination or 14th amendment? >> both. it's the same. my comments go to both. and what i would say there is that plaintiffs, the evidence shows that plaintiffs proved the arlington heights factors, and it's set out in our brief. we prove that all the changes made after the shelby decision disfavored african-americans, and we also proved that virtually all of the reasons

that the legislators stated at the time in the legislative record were simply not true. we proved pretext. and the legislators in the face of that record asserted legislative privilege and never came forward and put their credibility under oath behind any other reason that they might say they did what they did in this, in this bill. and, therefore, we believe that there is only one conclusion that can be made on this record this terms of racial intent, and that is that all of the evidence supports and required a finding -- requires a finding that this law was with enacted for racial intent. >> if that's true, doesn't the burden shift to the defendants in this case? >> yes. yes. they would then be able to try to prove that they would have done the same thing without the racial intent, but they never,

they never made any effort to do that x they specifically said -- and they specifically said that the amendment to the photo id law, they were not claiming that cured any racial intent that existed in the original. >> where do they say that? >> they said it -- it's cited in our brief. they said it, and when we were introducing a piece of evidence that would have shown that the intent carried forward through the amendment, they said we're not, we're not making that claim, and then the evidence, we withdrew the evidence. so it's in the record. >> before you sit down, so what is your view of the timeline for implementing or disp mantling each one -- dismantling each one of these mechanisms? >> ms. riggs is the leading expert on that, but what we would say is that it starts in july -- >> that's all right. she's going to talk about it? >> yes. >> you can talk about whatever you want. [laughter] >> thank you. i just want to mention in my four seconds remaining that we

also have a claim regarding la latino voters. and in addition, we made that claim through same types of evidence. it's not highlighted as much in the brief, but the evidence is in in a footnote. and the, the fact that the district court that are missing with regard to african-americans exists in a huge way with regard to latinos which is that their registration and turnout in north carolina is extensively lower than for either white or african-american. thank you. >> thank you. >> may it please the court, allison riggs for the plaintiff. i'll be discussing the remaining constitutional claims, anderson verdict, 14th amendment claims and 26th amendment claim ands answer any questions you have about implementation. >> maybe you can answer that question. >> absolutely.

there's ample time for this court to remedy the flaws in house bill 589 because of this court's stay, same-day registration and out of precinct are the law. they've been implemented in the last three elections. none of the infrastructure has been dismantled, so there's just no problem with same-day and out of precinct. with id, early voting and preregistration, there's still ample time to set up those systems, set up the systems for early voting and to educate voters about these changes. >> okay. i understand ample time, but i'm looking for a little bit more specific information about time. >> certainly. >> we're now dealing with the longest -- the day after the longest day of the year, but we're getting to shorter days. >> so right now the counties early voting plans are due july 29th. that is not a hard and fast deadline by any stretch of the imagination. the state board of elections continues to review early voting plans through august and

sometimes even into september, asking them to change their early voting plans if there are problems. additionally, at least 70% of the counties use as their early voting site their county board of elections site or an in lieu of site. it's usually in the same building. so if we reimplement 17 days, not only do the counties have time to come up with an early voting plan that puts that into effect, but they're going to be using for the most part the same, at least one of the same sites they already have in place. so it's just opening it up to voters for an extra seven days, although they really only have to do it in the weekdays. with photo id, there is an opportunity to educate voters about the change, that they will not be asked for photo id. a voter guide goes out, it goes to the printer at the end of august. that's, again, not a hard and fast deadline, but that's a great opportunity for the state to educate voters that, just

like the last three elections, same-day registration and out of precinct will be available to you. here's the new early voting schedule. and, you know, you won't be asked to show a photo id when you show up to vote. so these are some of the key deadlines, but they're flexible. they get changed. so in 2012 the early voting demand was so great that the state board of elections, during early voting, ordered counties to provide extra time. >> so these are the same, the same amount of time is necessary either to affirm or to reverse the district courts? is that what you're telling us? >> well, i think if we're -- if you're going to reverse the early, the district court on the early voting and photo id and, certainly, the sooner you rule the better. with respect to same-day rebelling straight and out of precinct, i think when you rule, it isn't relevant. the infrastructure is in place, and we're ready the go for the 2016 election. on the -- if those are your

questions on implementation, i would like to turn very briefly to the constitutional claims and note that under anderson verdict the state is not free to just give and take away as whim mechanisms for participating in the political process. >> now, this is different from the 14th amendment intentional discrimination claim -- >> right. >> this is a general claim you're making, anderson verdict claim don't need to show discrimination to get there. but we didn't address it in the previous preliminary junction saying the united states is not pursuing this claim. i'm just thinking in terms of proof of it because, essentially, what you are dealing with is, essentially, non-affirmative type measures, photo id exception. and in that context, i don't know of many cases that have addressed it in this particular context. >> courts in the sixth circuit have been pretty active in addressing anderson verdict claims recently. in 2012, two sixth circuit

within the last month, two district courts that we cite that reach the section 2 claims and the anderson verdict claims. and, you know, it wasn't as important in the pi stage, but this is on the merits. the plain language of 3c says we can get -- [inaudible] if there's a finding of a 14th amendment violation. this is a 14th amendment violation. and it is -- we do believe -- >> the same remedy if you get the 14th amendment intentional discrimination as you would under this particular -- [inaudible] >> i think we can. the question is does it justify equitable relief, and i think on the facts in this case, it does. generally we say it's not just affecting -- >> i guess my question is more are the discrimination allegations stronger than a general allegation on the 14th? >> on these facts they're both very strong. it goes to sort of different remedies. i mean, the intentional discrimination facts here are just hard to dismiss. doesn't mean the district court didn't try and do it, but they're really stunning.

but here we also see that a decade's worth of voting law expansions created a situation where voters relied heavily on those expansions. and the court, and the state of north carolina takes them away with no good excuse. and that doesn't comport with the tate's obligation under -- the state's obligation under the. 14th amendment. very briefly, your honor, despite not having much time to discuss here today, we don't waive them. and the evidence, when viewed as a whole, lees no room for a conclusion other than this: young voters were targeted for exclusion from the political process by a number of provisions that were applicable only to them x. and they were targeted for exclusion because of the way they were voting and because of the power they were exercising. this isn't constitutionally permissible, and this court should reverse on the 26th amendment as well. thank you. >> thank you very much.

mr. farr? mr. farr, before you begin maybe you can tell me about what you regard as the timeline for implementing or dismantling each of these. >> judge motz can, fortunately for me, mr. peters is going to address that question. >> okay. but i want to be sure he does. [laughter] >> he's going to. >> he isn't going to say now mr. farr is -- >> no, no. mr. peters has represented the board of elections for a long time. i think he's got very good information for the court. >> we look forward to his expertise. >> my name's tom farr representing the defendants. with me today is my partner, butch bowers representing the governor and alex peters representing the state board of elections. i think the most important point i can make, your honor, is that we disagree with the plaintiffs' positioning that judge schroeder did not apply the test that this court articulated in its

preliminary injunction hearing. we believe he religiously applied that test x then he made extensive findings of fact and concluded that based upon these extensive findings of fact, the plaintiffs had not carried their burden proving either of the prongs of the section 2 test that this court laid out. >> well, you know, at least -- [inaudible] is helpful to be able to specifically indicate the claim that you're talking about. are you talking the section 2 results? section 2 intentional discrimination in 14th amendment intentional discrimination or the general claim? i mean, i get your point in terms of the overall view of it. >> yes, sir. >> clearly erroneous in the de novo review. but in terms of the analysis that we take here and what's been prevented on the other side, it's helpful -- at least from my perspective -- to get your position on those. >> yes, sir, your honor. i'm talking about the section 2 claim at this point of my presentation. >> and you're talking section 2 results?

>> results. and, you know, i may be missing something, but i also agree that the intent analysis under section 2 and the 14th amendment is the same. and if i get to that, i'll talk about it, but i think if you read our brief, there really is no case that has been issued by any court with facts similar to what we have that were found by judge schroeder where a jurisdiction has been found guilty of intentional discrimination. the court found that the legislature followed its procedures. the court found that the legislature accepted amendments, a fairly significant one related to establishing a benchmark for the number of hours that could be used for early voting. the court found that the general assembly adopted a two-year rollout period for the photo id requirement that had been recommended by the commission that president carter had proposed. court found that the general

assemblyman kateed in a very extensive educational campaign, made other findings related to the intent arguments whether under the 14th amendment or section 2. compare this case to the vc case where i do not think the facts were as favorable to the state as they are here in the north carolina case. for example, the texas statute charged a fee for the photo id when it was first enacted. and despite having a less favorable record for the state, even the vc panel which found that the texas id was illegal, overruled the lower court's findings that texas had been guilty of intentional discrimination. here we have a more favorable record for the state, and we have factual findings, detailed factual findings by the district court that intentional discrimination did not take place. so whether that's under the 4th amendment or -- 14th amendment or section 2, your honor, i

think that it's clear that judge schroeder's findings are not clearly erroneous. >> even with the distinction of section 2, and i get your point, i agree. i think the similarity between section 2 in terms of intentional discrimination and 14 are similar there. the in terms of intentional discrimination, there are some facts here that bear at least some comment in terms of the timing of the enactment of the expanded bill on the same day that the shelby case came down, in terms of some of the comments previous to that, in terms of evidence that was presented in terms of why this was presented for purposes of intentional discrimination. would you address those. >> well, again, your honor, my first reaction is the district court reviewed and analyzed those facts and did not find them persuasive as a matter of factual findings on the issue of intentional discrimination. i think the court may be

referring to the statement by one legislator, no doubt a significant one, representative -- or the senator where he made the comment about now we can go forward with the full bill. i would just refer you, first, to the vc court where they go into detail saying reliant upon the statement of one senator to find intentional discrimination by an entire general assembly is a very slim read to rest your finding on. however, your honor, if the senator had good counsel, why wouldn't it be prudent to wait to see what the supreme court was going to do with the shelby county case before you decided how you would move forward with legislation? one thing i'd point out is almost all of the provisions that have been challenged in this case had been filed previously. it wasn't like they just dreamed

them up after shelby county was issued. they had -- >> let me ask you a question, because this is somewhat, this is where it gets a little muddled. be you're dealing with a racial gerrymandering case, certainly politics can be the basis. an intentional discrimination case, do you maintain that an entity or a state can use race as a basis for effectuating a partisan goal; that is, to increase the part of representation of one or the other and race being the basis of it knowing if a particular minority group votes a certain way, the efforts to suppress that vote results in a partisan advantage? and if the partisan advantage is the basis for them doing it, not the race, is that legitimate? >> you know, your honor, it may be, but we haven't made that argument. the cases you're referring to -- and you and i have had this discussion recently in the districting case where the court found that a district was not

racially gerrymandered -- >> that's why i brought up the racially gerrymandering so we could differentiate. we're talking about an intentional discrimination claim. my question goes to whether you made the argument or not, but i think something's there, at least i feel something is there that the question comes up at least from the plaintiffs' perspective that race was used here as a basis for suppressing a minority vote that you knew would vote heavily in a particular democratic coincidence in this instance. and i'm only asking is that a legitimate basis in, under analysis of intentional discrimination under the 14th amendment or section 2? >> yes, your honor. my answer to that question is it may be, but we didn't make that argument. the state's not made that argument. however, your honor, i want to point out that in this case the plaintiffs have quoted the -- [inaudible] decision and the quote is, i think as justice kennedy said, there was a troubling mix

between race and politics. that was a vote delusion case -- >> i still want to deal with, i want to make sure that i got my question. you didn't make the argument. i'm not saying you made the argument, i'm saying if the plaintiff makes an allegation that race was used in this instance as a basis to effectuate a partisan goal, is that -- what is your argument to that? what is your statement to that? not that you made that argument, because this is not your case. you defending it. i'm asking what is your reaction to that? >> my reaction, your honor, is the evidence does not show that happened, and the district court found that did not happen. >> there's more compelling language than what you just quoted. it goes something like this, undermining the progress of a racial group that has been subject to significant voting-related discrimination and that was becoming increasingly politically active and cohesive -- [inaudible] of intentional discrimination. >> yes, your honor.

i'm aware of that language. but also that language was brought up in the context of a vote dilution claim where there was proof of injury to the plaintiffs because the plaintiffs had met the jingles preconditions. they had shown that they were a compact minority population sufficient to be a majority in a single-member district and that they could not elect9 candidates of choice without -- because of racially-polarized voting. that language you just quoted would not have been relevant if they had not established that they'd been injured by the districting plan because of the jingles preconditions. so that's where that comment came from, and it must be viewed in context. >> what, i mean, what is the point you're making in regard to the vote dilution? i'm just trying to understand it -- >> yes, sir. >> i know you do this all the time, and you can help me with it. as i understand, vote dilution is still under section 2. >> yes. but it goes as to whether there's been an injury, your

honor. >> i mean, it's the same statutory provision. >> but for in the lulac case, the plaintiffs had shown that they'd been injured. here there is no showing of injury. this goes back to the section 2 results test that this court adopted where the first prong you directed that judge schroeder had to decide whether the law imposes a discriminatory burden meaning members of a protected class have less opportunity than members, other members to participate in the political process and elect candidates of their choice. so if you read the briefs that the other side has filed, they drop from their citation of your test the phrase "less opportunity than other members to participate in the political process." so that was the key inquiry. you don't get to the jingles factor as we called them or societal conditions that are part of your second test until

the plaintiff proves the first part of your test which is that the challenged election practice imposes a burden that results in less opportunity for members of the protected class. and judge. >> schroeder -- judge schroeder religiously applied that test and made detailed findings that plaintiffs had failed to carry their burden in that respect. >> so in a section 2 results test, which is what you're talking about here, right in. >> yes, ma'am. >> your sup mission is that -- submission is that you have to demonstrate more burden than you would in a section 2 intent case, for example. >> no -- >> constitutional case because tied into -- you don't have that direct evidence. so you need the indirect evidence. isn't that your submission many. >> no, your honor. first of all, i strongly deny that the general assembly engaged in intentional discrimination. >> i understand that.

>> but even in an intentional discrimination case, we believe you have to prove injury. >> i understand that. but you have to prove that the injury element is stronger when you have a results test, when you're trying to prove a results test. it has to be stronger, or maybe is it you don't think it does? i would have thought that was part and parcel of what you were saying. in other words, you can't have a results test here. you were talking about the injury and that the injury you have to show in a results test has to be stronger because you can't point to this in the results test evidence of intentional discrimination. >> well, your honor, i have to apologize in answering this question because there is not a lot of guidance by the supreme court on these vote denial cases. >> i -- >> so the best thing -- >> believe me, we are aware of that. [laughter] >> so what we can only do is we can look at the vote dilution cases and see what sort of clues we can discern from the vote dilution cases. we know that in a constitutional vote dilution case you still

have to prove discriminatory results if you go back to the city of mobile case. you also have to prove purposeful crimination. >> right. i was just trying to line up -- because if it was exactly the same, you would never have, you would never, you would -- there wouldn't be any difference to them. >> no, no, i think the difference, your honor, is that for the 14th amendment or the section 2 intentional discrimination claim you have to prove purposeful discrimination plus the injury. for the section 2 results claim, you just have to prove the results. >> why would you ever go to an intentional discrimination claim then? there'd be no choice. you would always go to the results claim. >> not if you wanted to take the unprecedented step that really has only happened once in the history of the country to put north carolina back under the effective pre-clearance requirement that the plaintiffs are seeking in this case. they don't get that simply by proving their section 2 results claim. they've got to prove an

intentional discrimination claim to put north carolina back under the supervision of the district court where they would effectively be in a pre-clearance situation again. that's the reason why the claim's been brought. >> well, i understand why you think they brought it, but when i'm trying to do is to think why congress would enact it. and i don't think they would have enacted the statute in which there were exactly the same elements except you had to prove an extra thing with one. i mean, it just doesn't make any sense. so that's why i was trying -- >> well. >> in other words, i was trying to sort of -- >> your honor -- >> -- the difference. >> again, your honor, i apologize if i'm not clarifying this as well as perhaps i might. but i would just say that in an intentional discrimination case, you've got to prove purposeful discrimination plus injury. >> right. >> okay. >> all i was saying is you have to show more injury or more impact be you're doing a section 2 -- if you're doing a section 2, the other section 2 claim. >> i would -- >> i would have thought that would be your argument.

>> your honor, that sounds plausible to me. [laughter] >> i need better than plausible. [laughter] >> well, then i will defer to the court's interpretation on that issue. >> i want to understand what's going on here. i understand what you were saying is is that intentional discrimination is the injury. there's an additional part to it in addition to purposeful discrimination, injury. judge motz is alluding to even with results you have to show injury. so the question she's posing is what's the difference if you don't have two different claims? >> well, judge wynn, i'm sorry, the only thing i can say is that if you prove purposeful discrimination, puts you in line to get this other rem key where the state is now -- remedy where the state is now under obligation for pre-clearns administration. that's the purpose of proving purposeful discrimination. and i would say there's precious few cases where purposeful discrimination has been found by

a district court in these types of cases, much less where the district court has found there was not purposeful discrimination relying on extensive factual findings and then the case was then reversed by the appellate court. you know, intentional discrimination is the quintessential issue of fact, and that relies upon the credibility of the witnesses and analyzing all the -- >> well, that's true. i agree with you on all of that. [laughter] >> judge motz, i apologize be i'm not answering your -- if i'm not answering your question. >> on this record you've got evidence that there was a surge in african-american registration ten years prior, and the law was changed, and they claim that you're adversely affecting them which would be the motive to protect your own political interest.

means in this case could be that the republican party got control of both house and senate and the governorship, and the opportunity came to change those pretty liberal voter registration provisions with shelby. and it happened the same day -- [inaudible] looks pretty bad to me. in terms of purposeful crimination. >> well, your honor, i hope that i can persuade you that it was not a nefarious thing. certainly, judge schroeder found that it wasn't. and there's a couple of premises in your question that i have to challenge. you said there's a correlation between same-day registration and 17 days of early voting and out-of-precinct voting and pre-registration and an increase

in the black participation rate and registration rate during the 2008 and 2012 election. now, this was -- i've never been in a trial where there were more experts. and they came from mit and harvard and every university in the country. , and and all these have done what's called a cross-state analysis where they give opinions on whether election practices are the cause of an increase in turnout or registration. none of them -- and they've all done them -- at the plenary injunction stage, none of them had done a cross-state analysis to try to opine on whether these practices had caused an increase in turnout or registration. and they were all put on notice that there's evidence found by judge schroeder that there's states like north carolina such as virginia where the black turnout and registration rates went up at equivalent rates, and virginia did not have same-day

registration and out-of-precinct voting and 17 day9 of early voting. so it was our contention at preliminary injunction stage that they had failed to prove any sort of causal link between these repealed practices and the increase in participation by african-americans. so then we went to trial, and we had the benefit of the 2014 election. and the plaintiffs have said, well, you can't just rely on one election. well, it's the only election we have. the it's a reliable one. and after we had the 2014 election -- >> is there something you can rely upon for the intentional discrimination? i understand this gets intertwined when we're talking results on the section 2 intentional discrimination, but we're kind of going back and forth. and i think the question, too -- going back to judge floyd's initial question where some facts were given, but really the legal issue deals with the application of the arlington heights standard here. and the question being whether

the district court applied the actual motive standard in arlington heights, or did he apply, as the plaintiffs say, incorrectly the rational basis review? what are your comments on that? >> well, your honor, he went down all the arlington heights factors and he made factual findings findings findings that he relied upon. >> did he employ the actual motives standard on arlington heights? >> your honor, i'm not sure what you mean by motive standards. >> did he apply the rational basis reviews? >> no, i think, your honor -- >> tell me the standard he a applied. >> on the intentional discrimination claim -- >> yes. >> -- he followed arlington heights. >> and what is that standard? >> well, he looked at did they follow their normal procedures, which they did. despite all the arguments that had been made that they did not violate any of their rules, they handled bill in a very similar way to other bills. they adopted amendments that

softened the alleged impact on the protected group. they adopted a very significant amendment when proposed by democratic senator, senator stein, where he -- the original bill dropped the number of days from 17 to 10. they dropped the number of days from 17 to 10 because, as judge schroeder found, under the prior law there had been gamesmanship about the location of the early voting sites. they were placed in areas that favored democratic voters, and judge schroeder made a factual finding on that. so the reason why the legislature cut the days was they -- one of the reasons was they wanted to have equal treatment in all counties, all early voting centers. same day, same hours. so then -- >> isn't that closer to a rational basis type of view as opposed to an actual motive review under -- engaging in an actual motive under the arlington heights standard in.

>> your honor, i honestly think with respect the rational basis issue is a completely different question -- >> that's what i need. i need you to articulate on that. i'm not trying to make the case one way or the other on it, but that, i think, is critical. and a critical determination is what did the trial judge do in applying the law. and our review there is not clear error, it's de novo. and if he didn't apply the law correctly, then we have a problem, a problem outside of whether the facts are there with clear error. so my question to you is address the standard of review that the trial judge applied here, because it does seem to me that it's more in the rational basis review venue. and if it was, just tell me. was applying the rational basis review, would that have been or was it correct?

you are analyzing a statute that does not impact the suspect class, okay? under hi the issue is where they are. rational reasons for the legislature's decision and in fact your honor they did articulate rational reasons for their decision in the legislative history. for example, for early voting

and i've are to talk about that, they decided that they were not happy with the gamesmanship that was being done by less the majority votes by the board of elections in the state board of elections as far as the location of early voting sites, so they decided they wanted to have all sites in a single county treated the same way and they want the days reduced to reduce potential for gamesmanship. then senator stein offered an amendment suggesting that despite the reduction of days for early voting that each county be required to keep the same number of hours that they had used in the most analogous to recent election so for example in 2014 they had to use at least the same hours that the candidate used in 2010.

in 2010 -- in 2012 they have to use the same hours they use in 2016 and this will require the county boards to open up more sites, extend the evening hours and extend weekend hours. >> but they are some sort of waiver provision. c there is your honor but unlike the prior system where whoever was in the majority on the county boards could dictate what the plans would be. under the new system under h.b. 589 it requires a majority vote or unanimous vote sewn up towards north carolina now has got two republicans and one democrat on the county board of elections. they have three republican appointees and two democrats in the state board of elections. the county boards cannot reduce the number of hours unless all three of their county board members agree in all five of the state toward members agree. >> there are 100 counties and

they are all aligned that way? >> yes, maam. >> i'm sorry two republicans and one them a crack? >> the governor decides who is the majority. for the benefit of the public here when there was a democratic governor that governor decided he was a majority. >> why did this statute. [inaudible] >> your honor i can't really answer that question. >> i'm getting more back to the constituency. we know that those worm used marbaya minorities than others and if you don't know you just don't know but i thought maybe you might give me an answer as to why it did exclude public system i.d.s of the

legislature. >> first of all your honor i confess i don't know if that was ever suggested by anybody. >> suggested that it was excluded? is clearly excluded. >> i don't know if anyone propose to be included. i'm sure they did the plaintiffs county will get it on rebuttal. >> i thought it was excluded. >> yes your honor but i don't know if it came -- i don't know if there was a vote to recommend a statute to allow public assistance i.d.s. >> it seems like the question is not why it did someone asked you to put it back in, the question is why did you take it out because you are the one said to have potential he been discriminating. that's my question why did they take about? >> it was reasonable for them to give most of the responsibility for the creation of the ideas to the division of motor vehicles which had offices all over the state where people could go and get an idea and we have heard all this bashing of the division

of motor vehicles throughout this case and the facts. >> let me ask another question. did the legislature specifically requests certain racial demographic. >> yes your honor. let me ask you a question your honor. >> you don't ask me a question and rebuttal. >> i understand. let's keep it where we are asking the question and i will live with whatever you give me. my question simply we know that racial data information was requested as part of the public side of the issue. the legislature did so on how would affect minority voters. they simply asked you to respond to it. >> your honor would say it was

not a privilege not to ask the vet data knowing god these laws could be subject at the time that data was passed, the state was still under section 5 but even after section 5 went away it still under section 2 so i wanted to prove for the legislature to ask for that information. in fact judge schroeder asked the justice department to one of our hearings would have been worse or better for the state of north carolina not to ask for that data in the justice department recently said we can answer that question. we don't know the answer to that question. if you are concerned about complying with laws and where we have laws that prohibit discrimination against minorities, it's prudent to find out some degree of what the racial demographics are. >> the point being once you have it you have information that information in forms you on

certain kinds of behaviors and that is early voting is more likely to be used by african-americans in the first week or voter i.d.s will be possessed by them or voting may be more likely to be used because of the lack of transportation and health concerns. is that the type of information my question is that the legislature. >> may i answer the question your honor? >> please. >> your honor first of all every case whether it's intentional discrimination or section to our section 5 every court has said evidence of the disparate usage of disparity does not prove anything so that's the first . the second there is no evidence or honor --. >> isn't one of those every courts is a supreme court? >> absolutely.

because there's a disparate result. >> mr. farr my specific question is the type of evidence before the legislature before it's enacted and whether it informs the decision. i don't know, could go either way but i just want to know at the time they enacted this did have this information kicked off by example, information that the use of these particular procedures was unfortunately higher among minority communities and they were a non-minority communities? >> your honor, they acknowledge that state board of elections report indicated that they were unable to match african-americans at the same rate as whites. it was no indication that they didn't possess federal i.d.. the state board of elections

said that their report was inflated because there were all sorts of problems associated with reports and the evidence shows it was inflated and the state took that information and they adopted a two-year rollout period before they decided to enforce idea and they mandated what is an unprecedented bound by judge werder educational campaign to try to educate the people on that row i.d. and to help them get a federal i.d. so they got the information they took appropriate steps to try to do something about it. >> thank you. >> thank you honored may please the corporate i am alexander peters of north carolina attorney general's office and the only thing i'm going to talk about is -- and i think it might be simpler conceptually but i want to make sure the court is

aware of the practical consideration in the general election is 20 weeks from today and i want to make sure the court is aware of what's going to happen in those 20 weeks and i think it might be simplistic by take it by each of the mechanisms we are talking about, preregistration, str precinct provisional voting, photo i.d. and early voting. counsel for plaintiffs said was partially right but partially incorrect. plaintiffs don't administer elections so it would be understandable if they don't have quite the information. when it comes to preregistration same-day registration provisional balloting and photo i.d., all of those things are handled in the fee system which is the state's election information management system suite of applications.

there is testimony about that in the record below. it has to be in place in the form that is going to be used prior to the beginning of absentee voting at the beginning of september. so it pretty much has to be locked in for what it's going to look like during the election by mid-to late august. before it can be locked in, a number of tests and essentially mock elections and that sort of thing have to be run to make sure everything is working together properly and that is going to do what it's supposed to do on election day but its tests have party started so we are really at the point at this point that it's very difficult if not impossible to start recoding new information in order for it to work for the general election. >> there is no way we can issue an opinion. >> that is not what i'm saying

your honor. that is not what i'm saying at all. with one exception and that is preregistration. it's too late at this point especially since that has to be coordinated with dmv database. it's too late to have seems set up to deal with preregistration and have it in place prior to the beginning of september which is when it would need to be in place. the purposes of this election that doesn't have the effect it might because anyone who will be a team on november 8 can register now so the fact that there is not preregistration built into the system at this point would not prevent anyone who will be 18 at the time of the election to register if they haven't already. just to register to vote in the primaries. >> is that because a preregistration is something you have to do in addition to what

you are to have and it seems you are taking away from things that are there so it may be easier to subtract them to add. >> same-day registration out of provisional voting, because of the preliminary injunction in the trial court and because of this court's order that those were to stay in place pending a decision of this court. same-day registration and out of precinct provisional voting are already in seems. seems a setup to handle them and can handle them and will handle them. the same with photo i.d.. it is set up to handle that. the ideal would be if we were not going to have any of those things would be to pull them out of the system that you can't do that without risking messing up other things you don't intend to mess up so what the state board would have to do if the court were to issue a decision that either said no same-day registration in november, now out of precinct provisional voting in november or, and/or no

photo i.d. in december the state board would simply have to make sure county boards no not to use any of those. that leads to what the second issue is with regard to this and that is training and education. statewide mandatory training for county boards of elections, county board members and states county elections officials are expected to attend this training and is the training that they use to train counties. that training has been set for months for august 8 and 9th which is seven weeks from yesterday in seven weeks from today. so that is when county elections officials are going to be trained on what the rules are for the election and given the materials to take back to their counties and use for training.

if any changes are made after that day, then it becomes an issue not just of educating people about the rules are but reeducating people. it's not what we have party been told, it's now going to be this and that also means redoing testimony and evidence in the trial court about what is called the station guide. it's the big resource manual essentially that every poll worker has to their station that has all the information about how to do everything. that would have to be redone in order for accurate information to be available to county poll workers. >> what does the information now say? >> currently. >> at the moment some of these provisions are enjoined. >> currently with the station

guide does is tell them how to implement federal mandates, how to do same-day registration and how to do out of recent voting because those things are all in place for the election as it stands now. >> so we should include, we should, it seems to me would be. easy to strike those. i used to represent election boards in my youth. >> it might be easier for same-day registration and precinct provisional voting and for photo idea becomes much harder because it's interwoven into so many aspects of the guide in terms of the process coming in. i would also point out that videos and the like have been prepared that were used for the primary and used for the training and this go-round. how to implement photo i.d.. the bottom line is if they are going to be changes and if we

want to make sure the elections are to minister to uniform way and county elections officials have the best information available to them really the state board of elections would need to know what changes need to be made well in advance, weeks or months in advance of the training so that they can make sure that all the training materials are accurate. counsel also mentioned the voter guide that goes out to every household in north carolina, 4.5 million go out. under the contract with the vendor who is printing that voter guide for the state board of elections the proofs have to be at the vendor, at the printer on august 5 so again we are talking early august date by which things are going to be going into print and the county board officials will be educated in terms of what the rules are for the election.

after that point it becomes an issue of free education rather than simply saying these are their roles. with regard early learning i think it's important to remember it's the counties that implement that and it is true county boards of love elections have the ability to tell other public buildings in the county, we intend to use that building on these days for early voting. there is a 90-day deadline for that. if they want to use them for the fall early voting period it will increase to 17 days. they would need to get give that notice by july 27 in order to be entitled under the statute to use them. a bigger issue per counties might be poll orders because they are going to be working with budgets that while the counties aren't june to july purchase of the budgets are set

now or in the process of being set within the next week or so, so if they got into an instance where they might need to expand early voting time they might not have the budget to be able to pay the people to handle it. the reality though is as counsel to the two --. >> i thought there was the same hours privation. there is the same hours provision. >> why would there be an increase? >> it would depend on whether they were able to spread things out more or add more time to what they have party planned for. but it is i think important to remember under the old statute the only requirement for the 17 days of early voting was at the county board of elections for early voting during business hours and on saturday so it is possible that weren't county told they have to add seven days

to a period they might deal with that simply by offering early voting at the county board of elections office and not doing anything else which would be consistent with the bill statute. if you have other questions i will try to answer them. >> i'm not sure anybody knows this as well as you do. unless you know something i don't. [laughter] >> thank you very much. >> i want to reply to some of mr. farr's peters appoints and some of mr. points but the substandard points are little more central. mr. farr mentioned there are no facts -- there is no case like this. there is no precedent for the

rollback that house bill 589 created comparing voting rights across the state. house bill 589 represented the first major construction of the pulse of north carolina since 1965 in north carolina picked up our history left off in 1965 right after shelby county came down. the district court's legal errors were numerous so to your point judge wynn it does matter the distinction between is the court looking at burdick versus rational basis. >> what was used tear? >> it was rational basis. the district court said. >> how do you know that? how do you know was used? >> the exact language of the district court. the district court said it would not have been unreasonable for them there -- north carolina senate to have waited to see how shelby county came down.

that is not actual evidence. that's the district court coming up with a rational basis but an important point here is the senate wasn't just sitting on the voter i.d. bill waiting to see if they could avoid the administrator burden of going through preclearance. it lumped together all of these other changes. it dramatically expanded the scope of the bill and contrary to what mr. farr said these weren't all bills that were just percolating somewhere else. the previous version of house bill 589 they came out of the house did include public assistance i.d.. post-shelby they take that out for no reason and the district court recognizes in its own words -- he says they could have surmised it. absolutely so these are not actual reasons. these are rational basis of reasons and if you don't look

for pretext and if you don't look for actual motive you commit legal air and you reach the wrong conclusion. mr. farr also buys of the language recited about the troubling interplay between race and politics and to get to your question judge where you are asking to stop or stymie an emerging political power is somehow only applies to aid post-dilution case. that is not true. the court used the same language. it's an attentional discrimination violating the 14th amendment to bense out a portion of the electorate because of how they vote and so it is not constitutional and it is not limited to just a dilution case. mr. farr also mentioned somewhat incredibly that there is no showing of injury here.

so this did not get into the results issue. there's no evidence of injury. respectfully that's not what the record shows that it's not what the district court found. the district court found -- talked about the hundreds of voters that we presented to were actually disenfranchised in 2014 because of house bill 589, because of the same-day registration and the cuts to out of precinct voting and it's fair it's throughout the opinion. judge wynn on your question about. acknowledge i just want to make clear that the record the show and recite it in our brief, that on all different levels the legislature asked for data on racial impact during the post-shelby consideration of house bill 589 and two that data so that's on page 26. >> that data could have been requested for preclearance?

>> yeah. that is a relevant point but it also goes to the knowledge of which the legislature was acting >> remake an argument that the legislature could have requested them, the information? >> no, no. post-shelby though they were relieved of the duty to comply with section 5 but more importantly this goes to come that they knew the disparate impact of every one of these provisions, the decision to include -- there are tons of election law provision spells that get filed every year. the once it got folded into house bill 589 post-shelby are the ones with the disparate impact on racial minority voters. and so --. >> where their separate bills dealing with all of these provisions, all of them in the

hopper but just not combining legislation? >> i'm actually not aware that there was not a precinct bill. it there was a bill proposing to the lemonade the decision i could be wrong on that. there were bills wanting to eliminate preregistration. there were bills wanting to cut off early -- early voting. slackware was it? >> none had -- [inaudible] bears an extensive amount of legislative history material in the ja tracking of the bill areas. >> one another error, i do want to emphasize that this court in 2014 emphasized that the district court committed legal error by minimal the number of voters disenfranchised by several provisions and the basic

choose is that even one disenfranchised voter let alone thousands is too many and the record in front of the district court comedy and rebutted record and the fact that he actually found demonstrated there were thousands of voters disenfranchised in so sacrificing voter enfranchisement at baruch reddick and efficiency are under resourcing is unacceptable on this goes to the remedy that mr. was talking about which is, the state board of elections started training for august 8 or 9th. to enfranchise voters that training can be removed. they may have a contract to give proof for a guide. if the federal court rules that these laws are discriminatory and unconstitutional i think this court's ruling trumps that. their ample times to educate the voters, get a remedy in place and make sure that north carolinians can vote in november.

thank you your honor. >> thank you very much. we'll take the case centered by his meant and we'll ask our clerk to address the court and come down and greet all the lawyers. >> the reason i met this convention and i'm a delegate is because i want to make sure that mr. trump becomes our nominee to become president of the united states because i feel he is the only one that can make this country great again and we need him as our president so i'm honored to be a delegate. >> the most important issue i believe that is come up in this years election, i believe that it is education. we don't have a strong enough policy when it comes to education, public education and i think we need to concentrate more on making sure that our children are educated. also there is some type of relief for student loans. think people have a tough time

paying student loans and they shouldn't be paying for them for the rest of their life. so student loans come education and public school education. >> the most important issue to me in this election is that people are thoughtful and ask the questions what the candidates will bring to our country and i feel like obama has presented a wonderful format for our country and put us on a positive path and for me i just want that to continue. >> the issue that is the most important to me in the selection is the way we pick our candidates. it seems so fixed and ridiculous i believe we would have a different candidate if all the primaries are open. >> i think regardless of your party affiliation all clevelanders are happy to welcome the convention to our town because it's a wonderful opportunity to show off the

wonderful things going on in cleveland these days. i think it's an important moment in history and i'm only glad is taking place here and i think it will be a great time for our city to shine. .. jeremy mccarter is next and he's .. .