question in this case is whether the minute nd minnesota secretary of state can override the minnesota legislature and congress by committing to accept ballots for an additional week after election day the answer is no under the elections cla the secretary has no power to override the michigan legislature on the manner of choosing presidential electors and federal law absolutely bars counting votes federal races but election officials don't even have it in and on election day the contended that the deadline set by the minnesota legislature and by congress violates any provision of federal law and so that their mind must stand this is the secretary's disregard of controlling federal law threatens election chaos and widespread this enfranchise going to voters rely on the secretary's claim of authority to set a new deadline there is no disputes that every ballot accepted after the legislature is election day deadline is subject to challenge and if we are right about to draw in those challenges will succeed and those ballots will be disqualified the secretary's actions are responsible for that result and we're trying to solve that problem now when voters still have a chance to cast timely ballots the district court decision didn't reach the merits because it stopped at standing but mr carson and mr lee ciro are obviously injured by the secretary's actions they are voters and the secretary's decision to accept thousands of inevitable ballots dilutes their votes as a matter of pure arithmetic when the vote pool goes up or the the weight of their individual votes goes down and that injury is no different from the kind of ballot box stuffing with which baker versus carr recognized to be a more established injury in fact than the kind of mel apportionment that it held to satisfy the case or controversy require the district court's view that this is just a generalized grievance is backwards boat solution is measured from the point of view of the individual voter and no one disputes the fact that the secretary's policy dispute dilutes the plaintiffs votes that injury doesn't disappear just because other voters will also be injured the plaintiffs also have standing as candidates because the secretary's policy concern because the secretary's policy concerns the rules governing their own election  individuals your traditional candidate and they've already been chose then and as the presumptive elects to are if their candidate wins prat if their candidate wins but of course that's contingent on the on the election it can correct it is that does that make them a candidate in the same way a traditional candidate is running for office in other words they step right in and if the candidate wins as opposed to  anyone voting for them individually i grant that there is perhaps what would appear to be a layer of indirection but i think that what's conclusive here is that minnesota law regards them the same as other candidates they're covered by their election is covered by the same provisions of the election code their office is treated the same it's all in there with the provisions that deal with any other race and the other type of candidate so i think that as a matter of state law and keep in mind they would be there running so it's certainly concrete to them as voters but i take your question to focus on their position as as a letter candidates and and i think the answer is yes and it's effectively for the same reason  as bonde recognize they suffered direct harms that would be cognize civil under article three due to the secretary's policy and so the result is that if they satisfy article three  otherwise satisfy article three standards than under bond they are allowed to bring a structural violation challenge what's the patil what is there a potential harm i think the potential harms are many fold but i think it's worth backing up to be backing up a little bit if you look at just in general kate's cases involving boat challenges ballot challenges as well as election contests and the like the ultimate candidate injury there is simply the accurate counting of votes in a given election and so that's the premise on which all of these kinds of cases are litigated for the reason that nobody knows whether a given proposed rule that if a win against is promoting would would be an under minnesota law such that the same challenge could be brought to it on one pm on election day and if the plaintiffs here have standing to bring that challenge which i take to be undisputed there certainly would seem to be no reason that they couldn't bring it now and we've identified some additional concrete harms as well i think the st is to know what hold on a nd you're suggesting it's undisputed that a candidate could bring a challenge after the that in our brief gallagher i believe hunter regards that as well and then there's also then there's also bush vs hillsborough county canvassing board which in but which was a challenge by bush as injury at this well i want to go back to judge jones kelly's opening question about the the status of electors as candidates what's your best case he have a case is there a circuit for example a circuit court case out there that deals with the electoral or is as a party and this issue of whether they are actually candidates and have standing as candidates you're honored to be perfectly candid hard not many cases involving electors and the one that immediately comes to mind is ursus blacker which was brought by  i'm there's just not and there's not much out there is there or there simply is not one way or the other  is because normally it's the political party or a actual the nominee of a political party that's bringing a challenge like this in and in this case what is very what stands out is the fact that the the the political party organizations were parties intervene norse in the east in the state court and  you're as the appeal from that consent decree moved forward they dropped out and they permitted the appeal to be dismissed what's that what's the significance of that if they're not interested in this case from the standpoint of becoming parties and challenging themselves what's what's the court to make of that well your honor a couple of things st i think the reason that there are so few electors cases is just that it's for the same reason there  few electors quad's cases this issue comes up at most once every four years and even then there often isn't a lot of litigation on it so in that respect it's unlike other types of election law spirits with respect to the state court litigation has been passed in the past standing and i'm i'm just asking a bad about the absence of the of any political party or any any political candidate as a party to this making the kind of challenge that these electors are making and also the fact that they that the party organizations were participating in the state court action and then with speaking yes your honor so with respect to the party organizations participation we're not aware of any case law holding that a voter's ability to to challenge u federal law actions that dilute the weight of his vote in federal court is affected by anything that apart a political party has or hasn't done in the past be interviewed hers raised a collateral or taps hack type arguments but a political party is simply nothing more than a voluntary association and while in some instances it may represent the interests of its members particularly the members of the actual committee in this instance you'd be talking about voting rights and of course political parties regularly litigate voting rights related issues in the courts and this issue i think you know like i said i've never seen a single instance where a party is held to be in such close with a political party that that individual's voting rights are simply subject to rennes judicata and i don't think that minnesota was which is what would be applicable here actually extends that are given that as the minnesota supreme court said chill the type of connection that you need for pretty is something like a relationship in a state where bloodworth lawson type of direct and and and active or either that or a direct and active participation in the earlier litigation and that certainly wasn't the case here the plaintiffs here did not participate at all on the state court medication and as for the political party it's a political party it represents  many many voters who are either members of the party or may have a tendency to vote for republican candidates but at the same time it certainly is not the exclusive protector of their rights as voters and so that's not something that we think extension again there simply was no participation in the case and the one case that we could find from the pursed circuit that did involve this type of association relationship surveyed the case l this area and recognized simply that abstention had never really been applied on that basis based on an association a relationship as here if i could turn to the merits i begin with the  our court in the posture that we find the case would even get to the merits are we solely to look at the standing is she but the district court decision denied our motion for a preliminary injunction and so that is what is up before this court and so we think and so yes this court can reverse the district courts did not that  disservice frankly to all parties so with respect to the palm beach case the supreme court vacated an order applauded a supreme court sitting recount procedures because it appeared to contradict it clearly expressed intent of the legislature palm beach holds that the intent of the completed by the deadline set by the court the legislature so you put those two together and what we have here is essentially this case the minnesota legislature set a clear deadline and there is no argument that that deadline violates of her law is simply reasons the st is that this is the type of issue that is typically raised in the post election context and very often it is and so they would simply be there simply not to seem concerned about last disruption that would apply with respect to most cases where purcell is raised in fact it's quite the opposite here a ruling by the court on the merits would actually serve to avoid disruption of the election and would serve to allow voters to vote in italy and to understand what rules will govern the counting of their ballots and the nd is simply just as a categorical matter the types of election law changes that have been that have been recognized in purcell type cases again they just haven't been this type of post election issue or at least something that concerns the counting of ballots they typically go into or it's gone towards a state election law requirements that are things that are carried out in the pre election period rather than after election day if i could your honour's i see my time is running and so i would reserve the remainder i've cut thank you very much all right reasons why this appeal fails but i want to emphasize here is the state interest in minimizing voter confusion and it having a smooth election process really just days away from the election there is no cleared up with certainty that was in our interest so when this was that the state court we decided we want to get this through the court process as quickly as possible so this resolution before voting begins on september th so we filed consent decree in the middle of july we had a hearing on july st that counsel for the trump campaign counsel for the republican party counsel for the republican national committee participated in august rd to get the consent decree there's an immediate direct appeal to the minnesota supreme court asking for expedited treatment and we welcome that because we wanted this set in clarified the minnesota supreme court set a schedule that would have had this fully resolved before voting began and even had enough time for someone to go to the s supreme court and director view if they wanted to but then just days after that we got contacted by counsel for the trump campaign the republican party in minnesota the r n c in the r n c c saying they want to walk away we were hesitant to agree to that because we wanted certainty we didn't want this to come up again we thought the worst case scenario would be where we are now arguing over this on the eve of an election we have a strong interest so we said ok only if you agree to waive your rights to challenge this in any judicial for two points on that st they're trying to have a both ways they're saying if you vote for the republican nominee president trump on the ballot that's a vote for us so we're candidate however we weren't privy with them we have nothing to do with them and we're not bound by the fact that the trump campaign has walked away from this way that's right we've got nothing to do with them when it comes to waiver of rights but if you vote for the trump campaign it's a vote for us that we have standing i don't see the consistency there at all  secondly yes your honor they were certified as electors two months before the election and they waited one month to bring their lawsuit and they offer no reason for waiting one month they just say we shouldn't be penalized for waiting a the reason i asked that question this is as i understand the consent decree the secretary of state agreed to provide guidance to local election officials i'm one who does not have the force of law or does this statu the county officials rather why the secretary has the authority to issue rules and guidance on when the deadline is in the counties this is under minnesota supreme court lot of the counties rely on what the secretary says as guidance now i want to get to a point here because the two reasons that they offer to say that they are on time one is to say we only waited a month well that's a crucial month when voting is beginning and the electors only two months away they offer no reason for why they waited a month in this context that's too long secondly secondly this idea that it's undisputed that this dispute will come up later is just in correct it is too late now to litigate the rules of the road and the rules of the election it doesn't magically become time to litigate the rules of the election after the election after the election you can litigate how the rules are applied but you can't litigate the rules that's common sense and an example of this is what the supreme court just did in its shadow docket out of south carolina case come and dine at the middleton there a federal district court in south carolina in late september issued an injunction enjoining enforcement of south carolina's witness requirement for the general election that was late september the supreme court flipped that on october th but what they said is if you've already cast a ballot without the witness highlighted by what the supreme court did and do you know so that argument that after the election there's going to be a contest to the rules no it is too late now it will be too late in two weeks or one week from now also the reasons that  cell exists applies with even greater force if you're challenging the rules after the election you can challenge how the rules are implemented but you can't challenge the rules themselves so they wait so st i'll say they waited consent decree is going around for three months they waited until it's around for nearly two months to challenge it yes they were and certify the selectors but they're only responses to say we're going to actors for a month that seems to concede that to the extent they're suing as individual voters they absolutely waited too long they have no explanation for why they didn't stew in their capacity as in the vote individual voter center they're just bringing up this idea that we only have waited a month from when we are electors and i'll just reiterate there are two problems with that that was a crucial month that was when voting began when the one million seven hundred thousand absentee ballots with the instructions with the rules were going out and the nd problem how they disassociate d themselves as  massive confusion and disenfranchisement there is no way for us to alert the voters with their ballots telling them in large letters to make sure every voter gets this to say no the deadline is changed on the eve of the election there is no way to make sure that every voter gets that that every voter can get their ballot in on time that would be massive problems for the voters on that and there are also be huge confusion from an election administration perspective of what we do all know that the only claim they're bringing is as to the presidential election they're not challenging it the consent decree as it applies to state races this court doesn't have jurisdiction as it applies to state races and not challenging it as it applies to federal elections for congress or senate so you know even if there were a injunction it would just apply to the presidential election and it would cause this problem of segregating the ballots for the presidential election we need to communicate to voters that there are different deadlines if you want to vote for president different deadlines if you want to vote for these other things get home and you're going to change the last nd for the presidential election that would be really other chaos and i want to emphasize the secretary of state did everything it could to make sure this was entirely wrapped up we had all the normal institutional players party to the litigation at the minnesota supreme court and can i ask  follow up on your statement that doesn't apply is only to the presidential election what then is the look if we're looking at the manner prescribed by the legislature or directed by the legislature why wouldn't what is the difference between the in that sense the electors clause and the elections cla purposes i think they're pretty tied together with the smiley precedent in arizona redistricting precedent if you were to reach the merits there know i'm running out of time you're going to pass it off to his condo but i'll just reiterate the state interest in having a smooth election and that everything we did was to make sure that that we were locked down and certified that this under control the minnesota supreme court all the institutional players were there and they walked away waived their rights to challenge it we thought we have certainty until these two plaintiffs at the last moment that sat on their rights for over a month then come and bring this suit thank and the state court has approved it and there's really not an authority from the supreme court saying that this federal court should overreach and should and should and do that in each of these cases the supreme court's cases the court defer to the considered judgment of elected state officials decide not to that that a on the provision of minnesota election law cannot be implemented and then authorizes and in fact require secretary to adopt alternative procedures but the electors here focus very heavily on the st part of the election secretary's guidance is what the voter should follow the guidance of that has the force of law the thing that has the force of law is to go for b point forty seven and certainly the state court order has the force of law until another for it says otherwise so to the extent that voters have been relying on following the law and doing everything right not only do their ballots have printed on them a specific postmark deadline but they do they have done everything right to follow the law as it has been established by the legislature into a four  talking about something i think we all agree is part of the manner of of the appointment of the electors the additional time but a other other aspects of the election process that would fall into manner that aren't quite so extreme that wouldn't be subject to the clause i suppose so your honor and i might have a very good answer as to where that line would be  suppose one could make the argument that the electors cause here released deals with the manner in which the appointment of the electors that's very narrow in some senses but the supreme court has generally tied the elections in the electors close together is functionally equivalent as noted in justice rober dissent in foster view love they've seen these these two provisions as as as more or less the same when it comes to interpretation of what the legislature can and cannot do and here the legislature has specifically delegated authority to secretary in the event that  orders that election law cannot be implemented which is exactly what happened  here supreme court's authority also makes clear that under personalities progeny federal courts should not issue late hour injunctions that threaten to throw elections into total turmoil yesterday's wisconsin ruling drives home that point chief justice roberts stated intervention in the thick of an election season when full enjoin of fortune of states laws is improper just as course it expressed that last minute changes in by confusion and chaos in a row public confidence in electoral outcome and justice kavanagh wrote the court's precedents recognize a basic tenet of election law when an election is close at hand the rules of the road should be clear and settled that is because running a statewide election is a complicated endeavor the rules of the road here were clear and settled when these issues were litigated brought and litigated and thoroughly opposed and finally to the appeal dismissed in state court in fact the electors cannot point to a single case where a federal court has successfully enjoined a voting procedure one week before an election the injunction that the electors seek here would be anything but innocuous the ballots in voters hands right now include a postmark instruct about a postmark deadline the exact same deadline that was in place for the primary several months ago not only would a sudden course change on the eve of the election confuse the electorate reasonably relying on the explicit rules in place before the primary but electors claim under the federal under federal law would require interpretation so novel and an orthodox from the us postal service system would show that they at almost every instance that post ballots are postmarked that is that is the rule and that is the practice case and from the wisconsin case decided by the supreme court last night even if this court just agrees that the state house to expand voting accommodations it does not answer the question of whether a state elected officials can do so consistent with federal law state's inactive legislation into a four b point forty seven dollars there's really little question that the circumstance here fall under the letter of that statute while the electors may quibble about how the court order came about indulging their request would require this court to waive the wisdom of that legislation rather than simply apply it as written and finally your honor as this court mentioned in an organization for black struggle the fair and orderly operation of elections does not warrant an injunction here there's nothing fair procedures with the election code cannot be implemented as a result of an order of the state or federal court but i will note that bush versus gore rejected reliance on a very similar florida statute that conferred remedial authority on state who are it's when it was applied in a way t interview the question and how broad is the term may enter and then i think that is an interesting question but i think that if you look at bush versus gore you know the most recent statement on this  as well as bush versus palm beach county it certainly goes to things that involve the counting of ballots and so the provision that's issue here is certainly in compas within that as to what all is outside of that who are i think anything that anything that concerns the manner and as my friend said there are you know that the cases at least under the elections clause have been relatively broad in construing the word manner with respect to elect apparently the product of a negotiation between a lot of actors state actors and even now in this litigation the legislature is court in this republican national committee versus common cause rhode island and the circuit court in that case made some reference or at least alluded to that  didn't dispute that the issue could be raised that it would have to be and so i think at the end of the day whether the legislature here is not doesn't really answer the question and it certainly doesn't implicate the equity of this case given the availability of post election there are two reasons one is they didn't have that interest at the time any of the relevant events of the secret litigation occurred and pretty typically concerns abends relationships that occur prior to the events that go on in state court you know but i will note that the electors here are running for a state office that is separate from the from the federal office that if their candidate were to prevail he would ultimately occupies they have a duty under that office that duty under minnesota law does involve voting for the candidates who are pledged but that is something that they get to do and it is a duty and obligation that they have to carry out your state law in a state office and so in that respect their interests and the simply intertwined with the merits if the secretary's new deadline is unlawful then what follows is irreparable injury to the plaintiffs to the public and frankly to the state as a whole and some of those injuries like both dilution and disenfranchisement those have been recognized in case after