we offer you a coherent interpretation based on the text and consistent with the democratic purpose of the sum to them and against that the defendants offer an interpretation that would allow procedural rules of constitutional rights and that rely on improbable textual interpretations in order to defend the arizona statute the purpose of the th amendment as set forth in the st section is the direct election of senators at sienna meeting purpose the whole reason for the amendment hold on to that idea of that st clause because the claims in this case of course turn on the nd clause the nd section the vacancy cla plaintiffs argue that the vacancy clause provides for limited representation by a political appointee until an orderly election may be had consistent with section one of the th amendment defendants argue that the would you say that the law at least as i understood from the few cases we have is that there is at least some temporal limit to what temporary means that a st day the judge case didn't address that at all you are best of all then you did not address it what your reading of the meaning of the judge case the judge case narrowly stands for the proposition that there has to be right of election ordered and i think that the states have started following that because when you look at the arizona law there's nothing in the law that empowers the governor knew to do it anyway why was no timing component at all to judge from your perspective correct here so as long as the writ of election is issued within an hour before the end of the senator's term that's ok no i approved twenty nine months long temporary appointment so what are we to make of the let me take in reverse order i'll start with rodriguez from the start so many of the memory doesn't apply to rodriguez that i doesn't apply to puerto rico they don't have senators  up and gives a summary of burma's it's not reviewing the reasoning it's just reviewing the whole bribery gives did characterize the reasoning and holding it said the fact that the th amendment permits a state if he chooses to forego a special election in favor of or temporary appointment united states senate and i think that reference to a special election to refer to the ability to put someone in office until the next regular election which was the pattern and could not be central to the whole room i don't agree it's dicta how do i get around it that how do you distinguish one as i say there's been a passage of time in the development of other presidents including significantly the thorton which talk about how the state cannot use procedural regulations to determine political substance substantive outcomes in elections that would be one of the main ways i would distinguish i mean i ask you this even if it is dicta this is the supreme court of the united states we're talking about well of our case line zero judge noonan wrote about that in one of our cases and i think the supreme court itself has made it clear that when they say something even though it may not be essential of the holding this what i would look at is other things that the court has said so for example when you're looking at the court's treatment of the times places and manner provisions in the casting of the republican party for example i said this is the already the procedural thirty i knew that times places me in a clause does not extinguish the state's responsibility to desert observe the limits of stablish by the st amendment rights of the state citizens the power to regulate the time place and manner of elections does not justify without more the bri fundamental right such as the right to vote saying it was very the problem know is that rodriguez on the next page characterizes the burden in valenti as minimal as to whether the effect when it talks about the commonwealth choice the legislative vacancies by appointment and goes on to say however the effect is minimal and like that in valenti it does not fall disproportionate on any discrete group of voters candidates of political parties so if they're character zing the burden as alternately minimal how can we say that for purposes of this line of cases we should consider it to be severe as at least two distinctions judge counts the st is again intervening supreme court precedent seriously you've got to have a real showing and i don't think that is the nd point i'll come back in a nd but the nd point is this isn't in even handed regulation and it is discriminatory it has a partisan outcome like ninety two and judge noonan says dicta the supreme court have a weight that is greater than ordinary judicial dicked is prophecy and what that court might hold we should not blandly shrugged off because there they were not in the  holding i wouldn't disagree which as you know i just read court has said something like that itself so do we can we agree amongst ourselves that what rodriguez said even though was an essential of the holding does at least characterize how the supreme court viewed valente in terms of not disagreeing with its holding which involved a twenty nine month period after senator kennedy was shot before he was replaced right i think  you know keep in mind you see more cases than i have in probably ever well with your case and here in the th circuit each case is to some extent limited by the people who live in gated and the issues they decide to br issues they bring to the table and sometimes the facts that the judges decide to write into the opinion or the facts in argument that the judges decide to leave out of the opinion so when you look at the lengthy when i've gone back and read the record it looks like what the plaintiffs they were seeking was they wanted an election the only thing they sought his relief was an election of member of sixty eight so that's what they were saying we want so when you look at how you get from the complaint to a twenty one decision by a three judge panel t appeal by right now to search petition but in the pill by right in the u s supreme court where the court can only dismiss or summarily affirm i think that that gives enough room for you to come in and say we are going to be the st court to do a shocked he was shocked that it was there in any event the reality is that if you look at the text it doesn't help us much we well but if you look beyond that you're right this was the progressive era change designed to put the power in the hands of the people instead of the legislature but they did in the proviso it clearly calls for all of the state legislature then we have the supreme court with valenti and rodriguez and the question is what do we do with i disagree that our approach is not textual and when you look at the text that it that the same language lesson or bristow talks about it is the same language you don't need his statement saying that all you have to do is look at the words on the piece of paper respect that doesn't matter he was taking the language from what happened with the house of representatives but in the house of representatives of his representative dies there's nobody representing the district in the senate at least one other person is representing the state it seems to be quite an app is it to me that the language taken from the house provisions is somehow relevant to this i get that's what he did but it certainly doesn't bind us in any way in connection with a six year term versus a two year term does it i think it does and you mention judge conses time with that with justice scalia and then i reply briefly mentioned whether you call it in part materia or there's another word for it that i have this case i might at the moment but when you look at the same language that's used in parallel statutes you interpret them the same way and it's not just there whenever you look if you look at justice thomas dis the house and that's where we tried to come at this as a textual analysis what does that text mean and then to go with that of course the proviso doesn't mean nothing what we read the proviso as doing is carrying over the recess appointments provision that existed in the senate in the original constitution and if you remember in that there under the original constitution the electors for the senate was a state legislature so the temporary point meant lasted as a recess appointment until the electors and then the state now the people until the electors have the opportunity to make the selection of the senator but with respect known of a very different situation in the early part of the last century as opposed to hundred and eighty nine you know they had little of the transportation that we now have and so on and you have a very different role by the state themselves they all have different roles they have different times in which they meet seems like at least four of the changes that have occurred you got at least two years so what are we supposed to be looking at as i understand it you've amended your complaint several times to change the remedy which you seek in terms of timing what do you seek now what exactly are you asking us to do we want you to issue an order consistent with a c l u v taft in jackson be ogilvy that says that on run where there's justice holmes had a phrase that in order for government to operate there has to be a little bit of play in the joints ok so i can't we got two years plus play in the joints that we got i think two years is way more than playing the joints i think that  supply the joint is after that and i think that's what you had in valenti you had two years plus the play in the joints i view the play in the joints is giving a certain margin of appreciation to the to the states and fit in under the times places a manner clause that times places manners clause remember some of them it didn't upset the elections closet all judge said that right that that the margin of appreciation given to the states an exercise in the power of the times places the manners clause is a little play in the joints so taft insetting you know the standard that it did to you know proceed more expeditiously didn't it in footnote three specifically distinguished the senate situation is presenting a different situation that might not be governed by the differences doesn't that suggest that the th circuit itself in establishing how to read the the timing requirements of the provision for the house was acknowledging that it might not apply in the same way to the senate i think that there could but remember we've got this other issue lurking the background of the burdekin balancing test and you still have to come back and say as we showed in figure one of our opening brief under arizona law arizona's legitimate regulatory interest can be met in a period of one hundred and ninety dollars days in order to have an orderly election what justifies the delay beyond that and there's nothing in the record at explaining what they're there they gave three reasons cost which i think is a dubious justification for voter turnout which there's no evidence explaining what a material voter turnout would be or what the voter turnout would be when the best compared are the doug jones elections forty percent and voter confusion which there's absolutely no explanation and that's personal ties it comes in big time but didn't the lente also consider not just whether or not it should have been in sixty eight dollars but whether it also should have been held in the state election in one thousand nine hundred and sixty nine didn't it also elections clause cases when you look at the the two wine decision that has a summary affirm and so on an appeal by rights i think when you look at all that i think that this court has a clean slate to offer the st real i please the court i'm dominic trey and with any foster i represent be a pelleas this case is about timing plaintiffs ask the court to change the date on which day and every other voter in arizona will vote on whether senator m sally finishes the term the trees currently serving the request is not new and it's not based on the constitution it is in fact fifty one years old and it's the exact same pair of arguments that were before the three judge court summarily affirmed by the supreme court and valente and it should be rejected for the exact same reasons the two substantive arguments that they make under the th amendment focus on one scrap of legislative history from a single senator and on and influence a disanalogy to house vacancy elections the legislative history piece hinges on one sentence from senator bristow who is admittedly an important drafter of the th amendment but what he says is that there is the exact same line is i use the exact same language but the exact same language only appears in the part of the th amendment requiring a read of all action there is no exact same language between the house appointments the house vacancies in case for that reason by the way valenti noted that the history of this case falls well short of being persuasive of any meaning to the response to the argument that you know actually the exact same words are of election for house elections as used in the st clause of the applicable language in the th amendment should it be given the same construction and if that in know i'm referring to the fact that the seven circuit cases dealing with house vacancies it's said that the writ of election has to set the date at a date that conducts the election as soon as practicable and on that point  context matters in the in the house context that is the only instruction for for the governor to be involved he's to issue the writ in the th amendment the language goes on and the other side sort of of the original language but frankly even under the strictest interpretation there's there's no way to write the proviso out of the th amendment and so i'm perfectly fine saying that that the issu election it was a date certain as of that time because it statutorily prescribed and at that point any analogy to house vacancies is is completed suppose that a state had a law that the following the gubernatorial appointment  election will be at the end of the term so you know maybe you got a few months maybe you get five years and eleven months would that be permissible no that wouldn't be why why not for that for the reasons that we trace out in the brief about the meaning of temporary temporary has to have some meaning i agree with the other side on that point as we point out from contemporary dictionaries and from a great one thousand and five case from north carolina that breaks down the meanings of excuse me that's not that's not the same thing but as we as we point out from contemporary dictionaries at least the meaning of temporary was to some specified amount of time or for some special purpose if the if a states provision said that the appointee would serve until the end of the term regardless of when the vacancy occurred in some sometimes an appointee will serve until the end of the term because they can see occurs late in the senator's term but that would be the only way to violate the temporary requirement is if it were in fact always a permanent appointment of it i mean if it was you know until a month before the end of the term if that would be ok it would at least it would comply with at least the meaning of the word temporary now it would be a different question possibly under the voting rights claim that the other side levies because then the state's interest in deferring until one month before the regularly scheduled election would probably be weaker than having it coincide with the intervening general elections which i assume your your honour's supposing in this hypothetical but as as for the meaning of temporary under the th amendment that would probably comply it would be sort of stupid but constitutional and  sometimes that's the role that courts and that the something the men the carve out for the states is that they retain an important role in this process what does the temporary appointment of senator kyl do to the analysis of because the they can see that's being filled would be the same date if it were the mccain vacancy or the kyle vacancy so the court doesn't need to wade into who's exit from that senate seat question for mr percent but the one thing that i would point out is they originally asked for the issuance of the read of election which i've acknowledged in just a moment ago in discussing with judge collins that that does probably need to issue rather quickly after a vacancy occurs they were factually mistaken on not because the writ of election had issued on september th of two thousand and ten and so that had to be amended out of the complaint because it was satisfied specifically commented about the fact that they seem not to know exactly what they wanted because they give changing their mind does that make any difference in our analysis i mean what it does is it underscores the fact that there isn't a constitutional rule at work here miller's hypothetical suppose you have a senator who is elected and then died right after being sworn in at the beginning of the term on january rd and supposed to state laws that even in that circumstance you skip forward to general elections that the person would get four years but then stand and then the replacement would serve the remaining two with that be consistent with the th amendment and the voting rights cases b for that kind of case again it remains a temporary appointment if the if the rule is you always skip as soon as they start to take a form like you always skip one general election and then you catch the next one and that would equate to approximately four years in your honour's hypothetical that is still temporary in as much as it's the rule isn't we appoint the appointee and he serves until the original term ends so it is still temporary within the meaning of that of that word it's not necessary forced to decide this for the present case because here we're talking about a much more restrained state law that says it's one hundred and fifty days before the primary triggers the roll over to the in or it ties back to the original un amended constitution they're temporary was defined by the next meaning of the legislature and so you have a sort of cap on temporary that would have put it within a year or two years the word until but now it's until the people can elect as the legislature may direct and finishing out the sentence is important to appreciate the role that remains for the states in regulating under the  analysis that might become more more of a challenge for a state that could feasibly have held an election at the next general which in your honour's hypothetical is something like eighteen or twenty months later  they're the state interests at issue here that are long established state interests would not come into play as forcefully as they do when you have a death as untimely as senator mccain's what do we do with the the fact that year and so on and it seems like a number of them are every two years roughly what role if any should that play in our analysis you're asking about the preeminent constitutional second to twenty four and in that case the rd circuit this is following the death of senator hines which created a vacancy and there the lawsuit was over parties selecting the nominees for the vacancy election versus  having a general or a primary that's open and in that context the rd circuit said that the explicit provision in the vacancy paragraph of the th amendment vesting discretion in the state legislature is not once but twice cannot have been without significance there are two references the legislature gets to empower the governor and it gets to direct how the election will ultimately occur that can't be without significance and as the as the transit court explains the th amendment comes up in the context of a discussion about exactly how much the th amendment is going to shut the states the state legislature's out of the selection of u s senators and there is a whole continuum of opinions on how much they should be excluded  the absolute popular sort of populist position that would have turned it into just another version of the u s house doesn't carry the day on every provision there are these carve outs in involvements for the state legislature that remain in the amendment and although the legislative history there is literally not one statement in the floor debates about the vacancy filling provision of the th amendment which is a surprising fact but what we have is a rather easy to read t connecticut case that the supreme court explains that state's authority to set time place and manners is broad their word that carries over into the th amendment and i ask you about the requirement that the appointee be of the same party would because us term limits speaks only in terms of an election there is no precedent to my knowledge involving restrictions other than excuse me restrictions that depart from or add to the qualifications clause in the appointments context but the qualifications clause isn't about elections read the article in section three says no person shall be a senator who doesn't for sure so so why if you can't  and subsequent to the qualifications clause we get the the amendment that us term limits actually sort of suggests would be necessary in the context of an election which is something to change the qualifications you'd have to amend the constitution the supreme court says well in the context of appointments that's actually precisely what happened and so in the appointments context it has to be read through the th amendment which adds this new layer of authority for states to regulate states can in fact leave the seat totally open so they have the authority to deny the governor the ability to appoint anyone at all and so tying his hands on something like a party requirement is a much lesser much lesser intrusion tax is the authority to set qualifications or restrictions on whom the governor can appoint we reside in this and them it's in there in the language saying that the legislature manpower the executive to make an appointment  and that word in power as we discussed in our in our briefing carries with it a wide range of latitude and this is where the language in the contemporary dictionaries that we cited a lso in that one thousand and five dollars north carolina case adds some texture to what is otherwise sort of unclear term seem like empowers is just to give the state the option to decline to have any gubernatorial point men's ever serve and to adopt sort of the house model for the senate for that state which some states did it doesn't suggest that the legislature shares the appointment authority with the governor and so that they have to essentially agree on the person who can fill it respect them i'm not sure that that is the only way to read the word in power i think that the the fact that they could refuse to allow the governor to appoint anyone  as a logical matter has to include the lesser authority to say that that person must be say of the same political party they say it has to be from a list of three supplied by the legislature i suppose that they  could that would be an interesting matter st a lot of sort out whether that's crossing over the line but but as i was to the th amendment i don't see any reason or any prohibition in that language about hard one to defend i will i will grant that that at that point it looks too much like what was repealed out of the constitution but short of something that this is this is not unlike the discussion we were having just a bit ago about temporariness there is wide latitude in the text and structure of the th amendment which covers a lot of discretion and it has in fact covered a wide variety of programs by the by the states the other thing i must know while we're talking about the empower language in the party requirement is that that only binds the governor in this case there's absolutely no standing argument for plaintiffs here to challenge that it could only be if governor  example didn't want to appoint someone who didn't want to appoint a republican but in this case represent the governor and he is not injured by this restriction has he said at the time and continues to think  is uniquely qualified to represent the people of arizona and so the obligation to appoint and the obligation to select a republican did not restrict his latitude at all do you believe that we would even reach or need to reach the issue legislation that limits the appointment somebody of the same party and so on because there's no one was standing to appeal that point in this case oh i assume that your honor is  thinking about the cases that the other side cites from the over breath context project versus oklahoma the problem with that is that that is an exception to the standing rule broaddrick is talking about a special standing allowance in the st amendment context to avoid the chilling of speech because the whole theory is that people will have killed speech and so they'll never actually break the law that's an exception and if anything it only underscores that the normal rule requiring an actual injury and reader redress ability that's an injury that's concrete in particular eyes rather than some sort of generic injury that every citizen shares in common that that would be the rule of clickable in the in the current case but in this case judge  addressing the point that your friends just finished with and that is when the governor said you know here today and in his brief that he would have appointed senator max alley either way so how is there any are you suffering any injury that's traceable to the statutory requirement in a number of ways but the most fundamental is a loss of representation in the same way and i'd say to united states b hayes on this which we put in our briefs  a racial gerrymandering case and there the injury suffered was described by the supreme court as quote when a district obviously is created solely to effectuate the perceived common interests of one racial group elected officials are more likely to believe that their primary obligation is to represent only the members of that group rather than their constituency as a whole that was held to be an injury in fact and here where u s senator is picked to appeal the one partisan group that elected official is more likely to believe that her primary obligation is to represent that party rather than her constituency as a whole but that's because i mean in in those kinds of cases you know the alternative to being in a racially gerrymander district is that you would get to vote in a non racially jury member district which was really would be would be different in some way here you know you have a senator and the governor is saying that in the absence of this requirement you would have exactly the same senator so the i'm struggling to see what what difference the law i'd say yes and judge miller i'd say yes because what you just described is the vote dilution aspect of the harm but as hayes makes clear there's also a representational harm so i just laid out and those are two distinct injuries the vote and the terms of your vote not really counting because it's been diluted but then also the lack of representation for the reasons that i that i just read in the quote i'd also note that we cited lack of representation we previously talked about the back of the state does  one senator actually not like what would happen in the house you're saying that because during that temporary period there's only one that the person with standing presumably is injured in action but i remember the st time you have you know that satisfies traceability and i'm not sure does how redress the bill because even if we issued an order to govern to see you go ahead and do the appoint without regard to these he says ok here's the same senator over again i mean that it's not regressive i think it is redress the bill because it's it's a state law in the state cannot sanction that type of of  that's the appendix case for a different way to do it and keep in mind this is up here on of all twelve motion so we didn't get the you know rule twelve we didn't get the benefit of developing a record we didn't get the benefit of a pretrial conference to amend the point and there's no record on which to