McCain-Palin 2008, Inc. v. Cunningham et al

Filing 54

TRANSCRIPT of Proceedings held on 10/09/2099, before Judge Hon. Richard L. Williams. Court Reporter Gil Halasz, RMR, Telephone number 804.916.2248. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/13/2009. Redacted Transcript Deadline set for 12/14/2009. Release of Transcript Restriction set for 1/12/2010.(halasz, gil)

McCain-Palin 2008, Inc. v. Cunningham et al

Doc. 54

1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Gilbert Frank Halasz, RMR Official Court Reporter U.S. Courthouse 701 East Broad Street Richmond, Virginia 23219 Before: Honorable Richard L. Williams Phone Conference October 9, 2009 Richmond, Virginia versus The United States of America, plaintiff, 3:08 CV 709 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division

Jean Cunningham, et al., defendants

Senior United States District Judge

Dockets.Justia.com

2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Robert A. Dybing, Esquire, for the defendant Richard Dellheim, Esq. Robin E. Perrin, Esq. Lema Bashir, Esq. for the plaintiff APPEARANCES

3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE CLERK: here. well. THE COURT: Okay. Identify yourselves, if I have joined Judge Williams

We have our court reporter, Gil Halasz,

you will, so that Gil will have an accurate record. MR. DELLHEIM: This Richard Dellheim on

behalf of the United States. MS PERRIN: Good afternoon. This is Robin

Perrin on behalf of the United States. MS BASHIR: United States: MR. DYBING: Your Honor, good afternoon. Lema Bashir here on behalf of

Robert Dybing for the defendant. THE COURT: All right.

Well, let me start off by asking Mr. Dellheim a question. I have done some preliminary research, and it shows that eleven states have extended the state law for accepting absentee ballots. Have you

studied the law governing how states extend the law for accepting absentee ballots, or is it a matter of right that comes under some statute or their constitution? MR. DELLHEIM: Your Honor, this is Richard

4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Dellheim. Good afternoon.

We have not conducted a survey of how states pass state law to extend ballot deadlines, but we would, I guess with some confidence, infer that states in coordination with state election authorities determine what is the most reasonable method of what is the most reasonable deadlines in conjunction with applicable election calendars, and then pass legislation as appropriate. THE COURT: Mr. Dybing, have you looked into

it to find out how they extend their law for counting absentee ballots? MR. DYBING: THE COURT: No, Your Honor. Well, did you know that at least And it goes, Georgia,

eleven states have done it?

three business days; Pennsylvania, New York 20 days; and Virginia, being an enlightened state, I am sure it would extend it for at least 20 days. Have you looked into that? MR. DYBING: If you are asking if I looked

into what other states have done, no, Your Honor, I have not. THE COURT: Right.

Well, does Virginia have a provision where it could extend, say, for 30 days the counting of

5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 absentee ballots? MR. DYBING: THE COURT: No, Your Honor. All right.

Well, now if I were to find that Virginia did violate UOCAVA, and we know from our hearing earlier this week that the United States' position is that the issue of whether to count the timely-requested but belatedly-received ballots is not moot despite the fact that the votes will not be outcome-determinative because UOCAVA protects the right to vote and not the right to change elections, does the Commonwealth agree with that position, Mr. Dybing? MR. DYBING: I am not sure I understood the

question, Your Honor. THE COURT: Mr. Dellheim? MR. DELLHEIM: I think I did, Your Honor. Did you understand it,

If I may, it is, of course, the United States' position if there is -- if The Court does in fact find a UOCAVA violation stemming from the November 2008 election, then the appropriate remedy under UOCAVA is in fact to count the ballots. THE COURT: Right. But it is the position of

6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the United States that UOCAVA protects the right to vote and not the right to change elections; is that your position? MR. DELLHEIM: That is absolutely a hundred

percent the United States' position. THE COURT: All right.

What is the Commonwealth of Virginia's position, Mr. Dybing? Mr. Dellheim? MR. DYBING: Only in a very general sense. I Do you agree with

think UOCAVA has carefully provided certain obligations on states which Virginia has complied with. And, of course, those obligations do And so

necessarily relate to the right to vote.

that much we concur, that UOCAVA is in our estimation clear as to the right conferred with regard to absentee voting. THE COURT: But it is the right to vote and

not to change elections; is that your position? MR. DYBING: Well, that is correct. I don't

see anything in UOCAVA that deals with the changing of elections. THE COURT: MR. DYBING: Honor. All right. But --

If I could be specific, Your

Specifically 1973-1(a)(1) obligates states

7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to permit UOCAVA voters to vote by absentee ballot and to process those ballots in a certain way. And so the obligation of the state, we think, are clear. And those obligations do not extend to the

changing of elections, or it doesn't address that topic. THE COURT: All right.

Well now, to the extent that you didn't say "yes," as you know the Fourth Circuit handles issues of mootness much like it handles issues of Article III standing, and as such for a controversy to be moot it must lack at least one of the three required elements of Article III standing; one, injury in fact; causation; or three, redressability. Now, which of these three elements then do you believe the United States lacks as to the counting of ballots issue? MR. DYBING: Well, Your Honor, I think

redressability was a point that we mentioned in our motion to dismiss at the very inception of the case. And I understand The Court did not find the But certainly our

case moot at that juncture.

position, given the state of affairs now in October of 2009 that there is no effective

8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 redress-ability available -THE COURT: Well, let me ask you this.

As of now these uncounted ballots, have they been shipped into Richmond and are being held in a secure place? Or do you know? We know the answer, Your Honor.

MR. DYBING:

I will have the answer to you in about ten seconds. THE COURT: MR. DYBING: locality. THE COURT: Okay. So the local registrars Okay. They are secured in each

and officials, I think they put them in a sealed envelope as I recall it; is that right? MR. DYBING: That's correct. That's correct. I think the

Under the local electoral board.

Virginia statute provides, Your Honor, that those ballots are kept by the clerk of court. THE COURT: Okay. To what extent would

Well, let me ask you.

it be costly for the Commonwealth of Virginia to now have them counted and then processed in the usual way? Would it be expensive, or would you How

have to reconvene a whole lot of people?

would the clerk certify that these are the actual

9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ballots that were turned over to the registrars, or whatever you have in Wise County and these remote localities in Virginia? MR. DYBING: expensive. Your Honor, it would be

If I could elaborate on my answer.

The officers of election -- excuse me one second, Your Honor. There are 15,000 officers of election who are involved in the certification process. And there

are four hundred people who are on a local electoral board who then must certify those results. So we are talking about a fairly

enormous undertaking in terms of the cost of assembling those people, paying those people, et cetera. THE COURT: All right. How can you justify

All right, Mr. Dellheim.

putting the Commonwealth to this expense knowing as we do that these votes will have no impact on the election results? And what point does The

Court's eye for economy and the efficient use of time and resources have to trump requests for a year-old outcome, moot, feel-good remedy when The Court has no reason to believe the Commonwealth will not provide absentee ballots in time enough

10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 for UOCAVA voters to cast them timely at all future elections? MR. DELLHEIM: Can you answer that? The United States is mindful

in this case, as we are in all cases, of the impact on the localities of our cases. However,

it is clear that the right to vote is, under Supreme Court case law among others, perhaps the most fundamental right that an American enjoys. There is evidence before this court from a Navy captain explaining exactly, far more articuably than I could, how important it is to him as he served his country to insure that the right to vote that has been stripped from him through no fault of his own be restored and that his vote counts. MS BASHIR: Your Honor, if I may. There is

an election coming -- this is Lema Bashir for The United States -- sorry. November 3rd. An election coming up on

Would it be possible to have

certification take place along with the certification during that election to save resources, if that is a problem? THE COURT: Are you putting that to

Mr. Dybing or to me? MS BASHIR: Mr. Dybing, or to you perhaps as

11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a suggestion. THE COURT: comment on that? MR. DYBING: Honor. I will in just a moment, Your Mr. Dybing, do you care to

I need to refer to a source.

There are different officers of election for the up-coming election. election. THE COURT: MR. DYBING: All right. And they are volunteers. This is Richard Dellheim. They switch every

MR. DELLHEIM:

There must be some practical way that is as mindful as we can be of conserving local election officers' resources to insure that these votes count. THE COURT: All right. Miss Bashir's suggestion that

MR. DELLHEIM:

when the officers for the up-coming election are called they do double duty and certify the November 2008 election. If Mr. Dybing says that

is impossible, there is an election after that. There must be some way to insure that these votes are counted while being mindful of limited local election resources. THE COURT: Let me ask you another question.

12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 If I order the Commonwealth to count as valid the timely-requested but belatedly-received absentee ballots, for how long would you have The Court extend Virginia's statutory deadline beyond the close of polls on November 4, 2008? And I

guess some guidance would be that the states that have extended it go over anywhere from three days to 20 days. Do you think 20 days would be a

reasonable period of time, or longer, or what? Are you scratching your head, or didn't you hear my question? MR. DYBING: THE COURT: Are you asking me that question? I was asking Mr. Dellheim. Thank you, Judge.

MR. DELLHEIM: THE COURT:

How long -- suppose that I order

the Commonwealth to count as valid the timely-requested but belatedly-received absentee ballots? For how long after November 4 should the

cut-off be? MR. DELLHEIM: Your Honor, it is our view

that all the ballots that were received that were belatedly sent out but nonetheless received should be counted. THE COURT: Okay. So even if they came in as

much as say 60 days after the polls closed on

13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 November 4? MR. DELLHEIM: answer. Your Honor, there is an

There is an answer to this question and I

do not have the state's data base in front of me. Perhaps my colleague may be able to assist me. But I believe that the last ballots were received sometime in late November or early December. THE COURT: Okay. I may be wrong about that,

MR. DELLHEIM: Your Honor.

But I believe that we are not talking

about an infinite amount of time. THE COURT: MS BASHIR: Okay. That is the case, Your Honor. I

believe that the last ballot arrived was returned on December 17th. THE COURT: MR. DYBING: Okay. Your Honor, Bob Dybing here. We think

We don't believe that is correct.

that ballots continue to come in and came in in to the spring. MR. DELLHEIM: I would respond to that that

in the Wisconsin case that we have cited in our briefs that is precisely the remedy order in effect by that court. In other words, it was a

November election and the court ordered the state

14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to certify the results, I believe, for all ballots received. And the election was not certified, I In other

believe, until the following spring. words -THE COURT:

Well, Mr. Dellheim, while I have

you on the line, where do I get the authority to make an order to modify Virginia's state law? MR. DELLHEIM: clause, Your Honor. I believe under the supremacy If in fact the State of

Virginia -- if The Court finds the State of Virginia has violated federal law it is within The Court's remedial authority under UOCAVA to order such relief as will completely remedy the violation. THE COURT: Mr. Dybing, do you share his

views that I have that authority, or do you think that it is going too far? MR. DYBING: Your Honor, respectfully, we

contend that there is no authority in UOCAVA for The Court to intrude on Virginia's electoral regime, particularly with regard, particularly with regard to the processing and handling of absentee ballots which may have been mailed late and which were received after the election day, the date by which they had to be counted under

15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Virginia law. We don't see any authority in

UOCAVA to impose that remedy. MR. DELLHEIM: Your Honor, with respect to

Mr. Dybing, the State of Virginia's position is completely out of step with every -- with almost every single state with whom we have had you UOCAVA litigation. Most of our cases settled.

Most of the cases are settled by a federal court order where states concede a violation and where they also concede that the court has the power to in those circumstances implement a remedy that is at times contrary to state law. THE COURT: All right.

Well, I think you have answered most of my questions. Mr. Dybing, anything else that you can add that you think will be helpful to The Court before I issue an opinion in the case? MR. DYBING: THE COURT: No, Your Honor. Okay.

Any of your associates in attendance, on both sides, can you add anything that will ease the burdens of The Court in deciding this case? Because I will give you some sort of a medal if you can make it easier for me.

16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS BASHIR: Lema Bashir. One thing I would

suggest with respect to counting late-arrived ballots, perhaps it would ease your mind if we were looking at those that were post marked by election day. THE COURT: MS BASHIR: returned late. THE COURT: Okay. So if one came out of Okay. As to opposed to any ballots

Afghanistan that was postmarked on November 3 or 4 and was received on Christmas of the following year that would be counted? MR. DYBING: Your Honor, Robert Dybing here.

Your Honor, there are no post marks on these ballots. These are free mail. Okay. So how does that affect

THE COURT:

your suggestion that the postmark on them would be helpful? MS BASHIR: Postmark or perhaps the date with Something indicating this

the voter's signature.

is when the vote was cast by election day. THE COURT: Will that data be on all the

ballots do you think? MR. DYBING: THE COURT: No, Your Honor. Well, each of you give me the

17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 spin that you put on that question. MR. DYBING: Robert Dybing here, Your Honor.

There is no date on the ballots. THE COURT: MS BASHIR: All right. Then I misunderstood. I

apologize, Your Honor. THE COURT: All right. Fine.

Well, I will get on this as soon as I can. But I can promise you in advance I am not going to ruin my Columbus Day holiday on Monday by working on this. I am giving each of you all permission

not to even think about it on Columbus Day. MR. DYBING: Thank you, Judge. We are grateful, Your Honor.

MR. DELLHEIM: THE COURT:

If you can think of anything else

that will be helpful to you, I leave it open to to to drop me a memo or something of that nature. MR. DYBING: THE COURT: Yes, Your Honor. All right.

Thank you for arranging the call. MR. DELLHEIM: Honor. MS BASHIR: THE COURT: MR. DYBING: Thank you. Good bye. Goodbye. Thank you for your time, Your

18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Gilbert Frank Halasz, RMR Official Court Reporter The foregoing is a true and correct transcript. HEARING ADJOURNED.