the final case on set for argument today is age fusion party versus suffolk county board of elections law is unconstitutional whether it's unconstitutional on its face or unconstitutional as applied unless the court has other questions i'd like to narrowly focused today on two points one the substitution mechanism in the law  in not permitting the point of opponents to take advantage of it there is absolutely no pulp plausible government justification or interest in that and then nd that there is explicitly unequal treatment both in the law itself treatment in the law itself i don't think that the unity party court considered the andersen footnote and i think that's footnote sixteen but i could be wrong that essentially says that minor party status protected status and it is very clear from the the millstone analysis that unity party engages in or that this court engaged in in unity party especially when compared to the dissent in  there were interests that were served by having the acceptance requirement in the context of the non parties versus the established parties and it found those imposed a very minor burden and they were served i  where there is the equal protection point and the understand verdict point to the equal protection point i think what you want the unity party court said is this is not a protected status like race and that's the opposite of what the supreme court said in in anderson it's the opposite of what this court has since said in green party in shoals and in in any number of other cases that addressed unequal treatment it's still purported to apply the weighing of the kinds of considerations that the anderson court set out is that right so anderson has two points as i as i read the case and the st point is about the burden on the right of access to the ballot and that itself can trigger scrutiny there is a separate and independent trigger for discrimination on the basis of party status and so i think there is really no question if you look at the analysis and anderson our i'm sorry the analysis in unity party whether it's engaged in the same kind of analysis that the enderson court dictated the courts need to engage in and i think to that point it's i have never seen a tea party cited for its holding on an equal protection and i think the reason for that is because it's holding on equal protection is just wrong and it's not what this court has followed since that you think we should overturn unity party i don't think that overturn it is necessary because i don't think that the equal protection piece is necessary to its holding i think unity party itself can simply be stated if you tell somebody exactly what to do that's not a burden because they sent a letter in the unity party that is in fact what you have to do is under this statute name the statute you have to file a notarized statement within such and such a number of days which is not what the letters did here that filed knowledge acceptance of and so i think too to that point if they knew that they needed to file it they obviously would have they don't my clients don't gain anything by paying me to be here and argue before this court that there's no game that they're playing and there's a there is a head but i don't i mean it seems to me reasonable to infer from the fact that this is a published law like in hirschfeld where there was a kind of private notice that was not published in available and nd your clients had filed such acceptances in prior circumstances so how can you really tell us that they were not aware so in hirschfeld the law was published the law was on the books and the question that the court analyzed was whether whether if you walked into the board of elections would you see the law noted that the board offered evidence a copy of the independent nominating rules which was claimed to be available to the public but the only thing they showed to be available was the copies were present in the room where petitions were filed there's no citation right there that they were published but wait this law was clearly and everyone acknowledges was published so i think that that's wrong because the law was passed by the legislature the law has not changed since since unity party and since hirschfeld the law has been on the books and it has it has been available in law libraries since than the question the question in hirschfeld was what would happen if you walked into the board and to that point i still think if you walk into the board they won't tell you about the certificate of acceptance requirement because we're on a clock men walked into the board and they didn't tell her about it you're your client running for public office they've filed such acceptance is before the law is published it's not hidden and there's just nothing hidden about it so i don't understand why they would not be charged with knowledge you don't rely on clerks a working ministry to flee in a public office sort of ice about legal matters then that is the same question and hirschfeld because the candidate in hirschfeld would have equally been charged with knowledge of  d and i believe the board of elections points out in that oral argument that it is published and it is the law of the state of new york well if the court didn't rely on that though in finding that in reaching a different kind of conclusion  i'm not sure we should but in any event i've taken up some of your time is there anything else you'd like to say before you close so you if i may what i would like to point out is errors are ordinary people make mistakes all the time what the mistake here was not realizing that you needed to file this particular form in this particular context and there is absolutely no state interest that could possibly justify refusing to allow substitution so if you narrowly focused on substitution there is no anti fraud justification for refusing substitution and there is absolutely no valid overcrowding justification for using to that substitution that new york court has had there's no vacancy if you don't have a vacancy you can't restrictive interpretation of new york law and that imposes a burden and once you get to a burden you have to go through both stages of the understand birth canal assess that is analyzing the string the burden and the strength and whether the state interest makes that burden necessary and there just is no state interest in this idea that oh no there's no vacancy here when you when you fail to file a certificate acceptance but if you decline you do get us if you do get a vacancy if there are substantive defects in your petition for example not being in the living in the state at all you get a vacancy but i mean i think that the entire system is incoherent in a way that andersen  all right thank you very much i think we have the argument we'll hear from mr st may please excuse you may please the court my name is daniel st panamint assisting county attorney for the county of suffolk i represent the defendant a police in this matter this case  not present a legitimate access to the battle and challenge indeed none of the appellant's have been denied access to the ballot as all but one of them will in fact appear on the ballot this november general election under  multiple other party lines for the offices that they seek and the one appellant who will not appear on the ballot as stated in the unity party decision his supporters can utilize the right in method for supporting his candidacy this court in unity party and in subsequent nd circuit and supreme court decisions including the timmins v twin cities area case referred to by judge mathis of mot below have clearly held that where there is a lesser burden such as the requirement that independent bodies and persons who are nominated by a party of which he or she is not a member of file unauthorized letter of acceptance there is a less exacting review in a state's important regular regulatory interest be enough to justify these reasonable nondiscriminatory restrictions now this burden of having to file a notarized acceptance is clearly trivial as explained in the unity party decision you would agree though that it falls more heavily on independent bodies than it does on a primary independent bodies and they have to be a member of the party to produce pain in the primary i believe so yes because of this rule musically says anybody who is not a member of the party signature to take a spot on the ballot that's exactly right that's it they don't want it there don't want to be it's a guard this this this tool is a guard against fraudulent acceptances and fraudulent declamations were perhaps being nominated by a party that you weren't aware of or are being decline in order to declining a nomination could have adverse consequences associated with the party could have adverse consequence of the plaintiffs here were attempting to engage in fraud but the purpose of the statute is to prevent fraud right right that's exactly what we're saying that's the purpose of the statute that's the reason for the ackman of the statute is to guard against these fraudulent declamation to default on acceptances and as  statute and really the requirement is quite trivial as we've noted before all but one of the appellant's had previously complied with this certificate of acceptance requirement in the same election cycle for the same offices that the seek for numerous other parties that they were not members of one of the appellant david gruber sent an e mail to nearly all of the appellant's advising them of this requirement and even sending them a form judge mat ch below noted that the information in that e mail was sent well in advance they could have complied oh it was sent in april of april th that the was the date and these nominees petitions website and the suffolk county board of elections website and once again they are not prevented from accessing the ballot the not prevented from being on the ballot all of them will be on the ballot and their supporters can still write in their names and the burden do you agree that it was the same law at issue in her she felt it was the same law at issue in her was because that i noted specifically when i read her she felt that it made no reference to state law so i wondered my understanding is that if the same question i think one of the issues in hirschfeld is that the plaintiff in that case filed his nominating petition and the board never sent a notice advising with the board invalidated the petition i think the next day for failing to file notarized acceptance for failing to file any except as whatsoever  and the court held that that was a burden because in never afforded him an opportunity to file the acceptance is an example of a non rigorous applying some equitable considerations right there has to be a reasonable time there has to be a applies equally among major and minor political parties the law is very clear that a substitution can be made as long as there is a vacancy on a valid petition under circumstances including death disqualification or declaration  is very clear it applies across the board and we cite to a string of cases on page thirty seven dollars of our brief even major parties if they fail to properly file a petition they can substitute a candidate on that on that petition because there was no vacancy created and even so in all those cases and in this case you can't substitute the same party you can't substitute the same person that was originally named so the substitution mechanism is in a playable in this case for those reasons if the court has preserved you think i don't think so your honor as we mentioned in a briefing with that was an argument not advanced to the court below it was really the only argument raise concerning the certificate  so i think i'll start at the end and move backwards we absolutely raise the argument below in our reply on substitution i cited exactly where we say that they're up to the way in a footnote that was really talking about a different point i mean maybe it's technically preserv wasn't really the focus of your argument below would you agree so i think we attacked it from a couple angles below the other angle as we talked a lot below about what are the least restrictive alternatives and pointed out kind of the litany of ways you could implement th including the way that it was implemented in unity party which is by just telling the candidate what they need to do instead of hiding the ball but i think we very much said look you could you could let somebody substitute you could you could let somebody substitute in this i mean isn't that just another way of saying that you're not going to apply this or to begin to accept it i don't think it is and i think the distinction there is about what the government interest is well there are other cases in which people are allowed to substitute themselves in yes so in new york  we have let people substitute what the cases seem to say and they're inconsistent but the cases seem to say that when you substitute our i'm sorry when you decline absolutely no vacancy can be created but when you substitute or i'm sorry when you when you don't decline there can be a vacancy created and so as distinct those are distinct washable in other states people are allowed in i under identical and what i want to make sure that we do get to is something about the unequal treatment because the both the guidebook provided by the board of elections explicitly states that they give what they call legal advice to the major parties and they don't give that to them to the minor parties who are the people as it's court pointed out in any number of cases including scholz those are the people who least need a subsidy from the government and and and as as the southern district talked about and for  and a situation in which we what we want the board of elections the acting in a way where it provides more access to the ballot not last and is not acting as an adversary but rather as somebody attempting to provide more access ok thank you i think we have the arguments will reserve decision though i understand you need a decision