me please the court we would like to make two clarification's that makes plain something that appears in our briefs first we agree that this if this were a review of a district court decision that actually had fashioned an equitable remedy and we were challenging that remedy that the standard of review would be abuse of discretion and that would be the normal course but in today's in our case the posture of the district court was summary judgment based on stipulated facts and there were no disagree facts and that was admitted by the defendants second in light of how we are in the election calendar the proposal mr starkey and i made at the district court may have some practical limitations so we suggesting that we wanted to  piggybacked a special election with the november two thousand and sixteen election may have lost its practical effect at this time and we spent a lot of time talking about that in our birds even under the court even if the court reviews this case under abuse of discretion we believe that the district court did abuse its discretion the first thing we want to point to the district court did not impose any although all of the parties have agreed that there is a constitutional level violation so you know you seem to be arguing in the briefs that anybody that if that is your court didn't like your request it should have come up with another man and  mom of we when we filed our amended complaint after the two thousand and fourteen election had already occurred we asked for a special election in the  we did not specifically assert any particular kind of special election by the time we wore arguing on summary judgment mr starkey and i had made a proposal that we believe had all of the factors taken into account in their best constellation minimizing cost minimizing computing to the voters not dragging the voters to the polls on a separate date and we believe that that was a good proposal were never foreclosed any other you're referring to the proposal for a special election to be held with this november's general that's correct and now you just to clarify what your position is you're not asking for that anymore well we just see that there is a very limited practicality to it frankly i would like us here alex cannot be printed well that the schedule that we're on right now i went to the marion county clerk's office two days ago and they they told me that as of yesterday they would be a finalization of the form of the ballot and then from there they would begin printing so you're not you're not asking for that any longer i don't want to rule it out because i i would like to hear first from the marion county election board they may prefer the inconvenience of tandem ing it up with this november's election to be enormously greater cost of holding a special election in future so so what exactly are you asking us to order that we re a special election when and we would our preference that we talked about in our briefs was if we had for twelve we do the we do the most convenient one and the least costly one the least confusing one would be with the difficult as the court of my pretend you're a judge right i would want to hear from marin county election or what their preference was that if there's going to be a special election which one would you want to do and in that a band if the if the marion county election board says it's it's less inconvenient for us to do it this year mr starkey and i would like it to be this year if not on the other hand they say that's just completely impractical which is something they never addressed with the district court they did not talk about how hard it was hell costly it was any of those things were never presented at the district court that you want us to order a special election to be held at the discretion of the local elections authorities is that a fair summary of my prediction that that's what you did with people being handed written paper ballots that they could exercise their voting choice upon for two thousand and sixteen that begins in the absentee ballot process on september twenty fourth just a few days away we should be considering a remained to the district court to fashion a poor and appropriate special election that occurs after this years in the rambert two thousand and sixteen general like we're not go get the answer but you know you seem to argue that if the district court didn't like your request it should have come up with the another plan and i'm wondering under what authority are you entitled to leave that you didn't request we requested a special election when we file be amended pleading and we we argued in at the district court when the summary judgments were  litigated we argued that a special election is appropriate we made a proposal of one kind we did not ask for an exclusive remedy of that room in the only and i believe we have stated our request we think a special election is appropriate that we recognize how would ballot access be achieved for this special election from whom the voters  we proposed that only the general election portion of the election be held again and that would be with any of the primary election candidates who were in the further election shall be held under the invalid statute that there's already a permanent injunction that will prevent the statute from applying to print their elections and you know we have characterized special elections as extreme remedy as drafts and you can we use the word stack of mean what cases support getting over that voters should not be required to wait four more years until it's it's remedy in our case the judges in marion county are elected for six years to six year terms at this date there are more than four and a quarter years left in that term it all of those cases you're talking about in your honor especially big your skin cases it's talks about how making the decision of whether to hold a special election is done according to equitable printer principles those equitable principles include a number of factors that we talked about or in our briefs and frankly the defendants did not talk about many of them those include the idea that if there's a constitutional level the court shelled look  magnitude of the constitutional violation here we have the common cause this isn't that this court entered that the defendants and that this record all agree with to say to the voters in indiana and indianapolis in marion county we're did nine a meeting will vote and they determine that voting is one of the most important rights we have under the constitution but that's always going to be the case in this context you just stating the obvious give us a reason why this chairs and work precinct committee person and they compared it to in one hand a ballot access requirement of having a petition of five percent of the voters in that district and the other had a petition ballot access requirement of ten percent and the court held that that was an impermissible restriction on your voting rights but that's different from what we had in that case we were they were electing political party ward level so they would only affected small districts in our case we are electing judicial officers for the largest county in indiana and they hold six year terms they exercise the power of the state it's that your honor had talked about how we should be loath to interfere with the election process unless there's a good reason yet the this court remanded it back saying please reconsider it didn't say a special election was inappropriate it said you must take into account all these x equitable factors before you make a decision about it and so they remanded and we have those equitable factors that make sense in our case the order of special election we have the number of voters that are affected it is there were one hundred fifty six thousand voters who showed up on november of two thousand and fourteen and all of them were denied of meaningful vote on who their judges would be there are more than six hundred forty six thousand registered voters in marion county many of those may have stayed home because they recognized how futile the process of going to the polls would have been that year and so if we had a meaningful election a defect more than one hundred fifty six thousand voters we were talking about what else was on the ballot that year that was if there was i don't believe there was a united states senate candidate but there certainly was a united states congress candidate every two years there weren't county election officers now going into the gubernatorial resident race in indiana goes along with the presidential year so that was not there as district court take well then the answer to that is more in the absence focuses more on the absence of what was there the defendant suggested that there would be a high cost of the election and present in the evidence and in fact i had an affidavit suggested there are a certain factors on the cost they talk about the cost to candidates and they didn't present any evidence on that and there is a different context you know based on trying to tandem up with the two thousand and sixteen election but would you say that mr starkey after the unsuccessful intervention waiting two months to file the suit against the backdrop of the temple aspects of this was and not move with alacrity yes your honor that when we filed it was eighty five days before the election and the deadline for certifying the nominees from the primary had not even occurred yet i wanted to point out also that under the filling of vacancies so suppose a candidate died or moved out of the district those vacancies could be filled as book as the latest five days before the election and in addition we were able to litigate the entire statute and i'm not referring you know simply to a special election but to you know any regular election going forward subsection b is is very comprehensive it involves both the primary and in the general election and it says how the entire the entirety of the election is to take place  only deals with a general election and that's just not the language of that subsection b at all in fact in common cause the the court this court pointed out that the primary isn't simply a warm up to the general election that it's meaningful that the whole thing has to be taken into account in addition subsection b it defines the way the candidates are selected it shape near three others yeah so that is the conference but this morning there are three things in response i'd like to touch on standard of review the appellant specific election system proposal although that seems of change a little bit problems facing the opponents here when it's than just a curiosity when is the next judicial action that would require the implementation of this decision two thousand and eighteen twenty twenty judicial candidates would be up for election in if we were to follow the same six year and there's a two year in the other batch comes up so it would be six twenty in two thousand and eighteen and in sixteen and twenty twenty ok and what is the status of the wanted to be deliberative about this on such a big undertaking for marin county in particular the marion county attorney county in the state that has this right i believe it's the only in the world system but you could have legislature just to elected just and the normal way that the rest of the state just and other states i don't believe that that is is i think that that has been tossed around with the with the general assembly but one think it's one thing is clear is there's a preference in indiana for some of the bigger counties for their judicial systems to be not just that the typical way where you have like some of the smaller counties where there's once a peer court and there's one circuit court or there's just one court that there is there is a qualitative difference in a big court system especially with asking for an election remedy the special action judge rove merits as you mentioned that's been described as an intrusion on the political process stagger in relief that's also for abuse of discretion where there is a default it's not used by the bigger counties so they're asking this court or and or the district court to impose an electoral system for judges when there's  in their briefing to have have said that their district court provided no relief that's not correct because this case cannot be seen as separate from common cause there was rel was prospective relief where the court said you cannot use a system again and we're not challenging that that's a relief in perspective relief for cases like this of looking at the cases that appears to be the a number of problems with the specific relief requested whether that involves the special election in a mere couple weeks or whether some other plan that remains to be determined the the first jumping in and imposing the system right from the beginning not be cannot sustain any relief waiting until the general assembly that legislature had a chance to address this and that was a case in the deep south in alabama in the sixty's and even then the court said that was good to let the legislature deal with this first look for some solution what was the time to the next election in that case i don't know that  run under a constitutional system whatever that happens to be with the terms of what the legislature comes up with actually there should be years because that's when the the next election will come up oh i thought you said it was twenty twenty twenty twenty would be when this the twenty fourteenth batch would be up again there's the twenty or there is an election for judges in marion county superior court and twenty eighteen that's correct ok yes so the two there are two batches and they get staggered and that's another consideration for the that this court has recognized there's the lynch case where the timing of the election matters in courts of granted discretion for that in that case  mansion the court said that it had been the election either on an off year and a presidential year or an off year that that's important that's an important consideration here they go to the batches of the candidates would rotate so one year they'd be up against they'd have to pay for a campaign with with the presidential election going on the next year the next time they came up they would have to face that and how many seats are open in twenty eighteen twenty and then there would be sixteen and twenty twenty and right now those twenty are balanced ten and ten in terms of partisan affiliation that's correct you know the state arguing that the plaintiffs claim they would that they would have won the election are speculative but wouldn't that be the case in virtually three requests for special election how does anyone ever prove they would have won an election if they only been allowed to run well i think you have that had not a case where the the party there was able to prove by straight tickets  filed the lawsuit when they filed the complaint in august of two thousand and fourteen the only thing they were asking was that mr starkey and mr bose be placed on the general election ballot they didn't exactly the plaintiffs want here and how much it would cost and that another problem and the parents recognize this were sixty one days away from the general election or sixteen days away from when the counties would have to send out the absentee that ballots in addition to just doing the ballot it's a special election so indiana law requires that notice goes out to the state agencies like the bureau of motor vehicles on th serving the disabled the for the final problem here that the problem is the appellant's proposed solution that does not address the problem in common cause the problem in common three candidates in that that's not opening it up i think you should go and thank you for that your time expired but you may have an additional two months he was he had asked the district court to review the magistrate's decision denying his intervention but that case was that this then appealed step was still pending until long after we filed in our case judge in light of the nature of the litigation to expedite i know that i know that once we filed our lawsuit we were taking every step we could possibly take to speed things up we asked for a summary ruling we asked for early t specific remedy do we want i'm concerned about the practicality of doing it this fall mr starkey wants the court to know that he prefers that we still piggyback our request on the november two thousand and sixteen date there there's so many things that are so that the government is talked about here that i'm not sure we can address them all in two minutes but one thing i was wanted to address your situation with the reynolds case he's correct that they did credit the district court for being careful about ordering a special election but that was only the first step and process that district court then turn around and order special action at the next step when the remedy had been work and i think the turnaround time that you were asking about it was probably on a two year cycle in that case there's so much there mr hennessy we did inclu mr and if he was the third candidate who did not survive the democratic primary we've included him ever since we've asked for a special election after the november two thousand fourteen election and already happened the government the that the subsection b relates to the primary it does not it is a restriction on how many nominees can be put on the general election ballot subsections a c and d all from well the ethical factors we have to consider in dealing with this special election should we take into account it a wall and i want to be fair here so it'll give you an opportunity what i would call the relatively modest efforts that you mr starkey me with regard to candidacy because you make the argument you might have a leg been elected is it fair and i don't know the efforts made by everybody else right but is it fair to on the other hand made efforts in addition but did not spend any money part of that was related to my efforts to get voter information data from the voter registration office that included a two year litigation the didn't even and until two thousand and fifteen and i was hoping each day that that case would be resolved i could use that information to help me campaign effectively without spending money and i think the courts question also pointed out the other thing due to the marion county situation where they knew that if they won the primary they were in effect winning the general election i don't believe any of the candidates who are now sitting as judge it spent that much or made that