appellants the texas conference of the n w a c p me from really a vote and guadalupe taurus the plaintiffs brought this case against the governor and secretary of state of texas for violating the voting rights act and the united states constitution in several specific provisions of the texas election code and an executive order of the governor these provisions as applied by the defendants in the context of the demick burden texas voters by threatening increased risk to health and they do so in a manner that disproportionately harms and burdens let chino and black voters in texas the district court recognize that the remedies we propose for addressing this burden were both reasonable and readily implementable by the defendants nonetheless the district court dismissed the case without reaching the merits based on the district court's view that the plaintiff's claims would require it to dealt into nontraditional political questions the district court's decision as with the defendant's arguments on appeal suffers from two fundamental and fatal flaws st it completely misconstrue the plaintiff's claims and nd it misconstrued  misapplied the political question doctrine the premises underline the district court's decision and as with the defendant's arguments on appeal is that the plaintiff's claims represent unmoored challenge to the entire texas election code that would require the courts to essentially rewrite the code for purposes of the pandemic no matter how many me ask you this there's been so understandable fundamental narrowing was with respect to moving up early voting and not including that inability exams and we do we continue to pursue all our of our release but i'll highlight that the court specifically the governor's order exempting the otherwise requirement for people to wear masks and public some polling places the advisory needs of the defendants requiring voters polling places to remove their masks when showing their identification and in doing so pensively exposing themselves to election workers also not wearing masks the prohibition statutory prohibition on curbside voting for anybody who cannot establish that they have a visible inability to enter the polling place the statutory restrictions on early voting and the statutory requirement was inspect combination burden the right to vote whether that burden is substantial and whether the state can establish a justification for that but the court did not do that because  not apprehend the specific claims that we made but the other flaw i want to draw the court's attention to in the district court's decision is the core adopted the few that the defendants continue to push on appeal that because the constitution vests management of elections in the state any challenge to the election code based on the impact to public health during the pandemic necessarily raises non political questions and that's weeping approach is contrary to clear supreme court precedent and clear precedent of this score including two very recent decisions one shortly before the district court's decision  days after in texas democratic party versus abbott in which this court rejected the same political question argument made by these same defendants here on appeal in which they claimed that because the challenge in that case was about a risk to public health during the pandemic that the challenge improperly raised political questions this court rejected that argument twice in the texas democratic party case in order to accept it here and to affirm that district court on that basis the court would be required to overrule effectively two very recent precedents of other panels of this circuit asked to change that and say it's required well i just just to be clear with respect to this court what we're asking this court to do is to reverse the dismissal of the district court and send it back to the district court so it can make its determinations what we are then asking the district court to do with respect to the executive order that your honor just referenced we are asking the district court to strike the exemption to order the governor to remove the exemption so that the mask wearing requirement that that applies in almost every other public place applies equally to the voting booth no back that would be so too cute required for recommend well it would be i don't i want to put it in terms of substituting i mean and there want to be any direction that all and less the court st found and we believe that there's a basis for the court to find that that exemption unduly burdens the right to vote and there's not a substantial justification for and that that does not make it a political question anymore than in texas democratic party to one in two in both decisions this court was faced with whether a court would have the authority to effectively expand vote by mail striking the restriction that limits it to people over sixty five now the court ultimately did not accept that claim on the merits but it completely rejected the idea that the claim could not be decided by the judiciary so the idea that because masks would go from being required in public places except polling places to be required in public places including polling places does not make it any more of a nontraditional question does the idea in that case the book by mail would be expanded to persons under sixty dollars and that goes for all of the relief for question with respect to curbside voting again only if the court determines that there is a burden and that the burden is not substantially justified then the district court has the proper authority as courts routinely do to player that requirement that you be physically able to enter the polling place in order to vote curbside presents and under burden and if the court finds that that particular requirement could be stricken just as courts routinely do in deciding questions of constitutional let's ask what about the supreme court's telling us i was in that when you're this close to you lection we really should of whether the court has jurisdiction under the political question doctrine so that that even if there may be arguments against some of our relief based on the near innes of the election those arguments would not be a basis to affirm the district court the district court needs to determine the merits of the decision in the st instance but with respect to those concerns this is not the kind of case that the relief requested if granted would result in  confusion or would result in a great deal of difficulty to implement and make those chante mallard's i mean i don't think he has i don't know what the record shows that he other cases that i've been involved in the state cannot read  required to have sufficient ballots available regardless the relief we're requesting with respect to that particular piece would require additional paper ballots in certain counties but there is time to do that there are cases that have ordered much closer to the election but again your honor as i want to point one other thing if even if some of the relief is no longer practicable and even if we were to say well that makes it a political question which i don't think would be correct under the jur but even if that's true the issue here is there any aspect of our claim that presents as you just poll question for the district court and if there is the fact that there may be certain parts of our relief that are will no longer be on ten tenable is not a basis to not allow us to have the judiciary decide or claims on the merits and so i draw the court's attention to the fact that much of the defendants arguments seek to paint that broad brush and suggest if any claim that we make raises a political question in some fashion or raises a remedy that could be problematic in some fashion that's a basis to dismiss  complaint it's not that may be a basis for the district court to determine some of the relief or requesting should not be granted but it's not a basis to dismiss the complaint wilkin we do sooner well there identified that i've discussed you're looking at them one by one in looking at them in combination and saying do they present the burden on the right to vote is the burden substantial and do the defendants have a substantial just nation that this court has said obligation to make those determinations and it does not turn them into political questions i want to briefly address the fact that the defendants asked this court to affirm on the basis of two grounds not reached by the core one being standing the other being sovereign immunity if the court chooses to reach those arguments in the st instance rather than leave them to the district  decide there is no basis for any of those arguments and in many respects they also conflict directly with the decisions of the scale court has already made in texas democratic party one and two with respect to standing they claim that the injury here is too speculative but the injury here is not the injury they claim of getting covert nineteen the injury is increased risk of dismissed on this ground because there is no if you just lay manageable standard for determining d whether the risk from in person voting is too high or hell state local officials should lower that risk as a matter of public health nd standing it did not meet their burden of plausibly alleging an injury in fact connected to each and every provision they challenge as this court wired  non speculative link to specific injuries this court required in string or b whitley rd is sovereign immunity and gov does not have a sufficient connection to enforcement of election code justice black box from the supreme court of texas just released an opinion addressing the limited nature of the secretary's authority d and i thought as i had to be able to get it at twenty eight dollars j on that runners that was it just came out an hour or two ago and was the court has a different preference i'll start with little question doctrine my friend on the other side just said that argument is sweeping with respect i disagree there are many many voting rights cases that are not present to pollute question pro this case is a far cry from traditional  claims citing it would require both expertise in public health and making policy tradeoffs better suited to the political branches of government for example when his complaint demands that in person building be done quote safely and with minimal risk  a twenty of course defendants want to improve safety and they're doing so but the constitution doesn't provide standards for evaluating defendants efforts the constitution doesn't tell federal judges how safe is safe enough or how much risk is too much risk but even if the court could divine a constitutionally mandated ceiling on coronavirus risk implementing a remedy require expert level understanding of public health this complaint says defendant should be  unstable ground outside judicial expertise the limits of loyally confidence for clue federal courts deciding political questions consider gilligan versus morgan in which the supreme court found a training video have a national guard d presented a political question because quote it is difficult to conceive in that area of government elected body in which the courts have less confidence well with respect i think choosing public health protocols d is one of the few areas where courts have conclusions but a rapidly evolving uncertain area of medicine like the response to the corona virus let me ask you this mr thompson texas democratic party however confusingly written the most recent opinion has been the th amendment isn't this a similar issue in that your argument your friend mr meant is that this is a burden that having to face boaters having to face these political question in the court didn't have to confront questions of policy or about pandemic response i think in that case also there was some confusion about the exact scope of what the plaintiffs claim was the defendants already there was a lit question because they thought the claim implicated you know public health concerns in a way that it just didn't so the way this court seemingly interpreted the plaintiffs plantain t even as abbott was that they could be decided without any consideration to completely remove the burden there's no real discretion there so for example there's another case before this court in a different court is called guilty use i think it's another t t p versus using this for where other plaintiffs are also challenging h p eight hundred and eighty eight that's another that's the middle voting issue that these plaintiffs are also challenging now they do present a political question because the of the way they challenge the wall they said they want to vote at these locations and they are prevented from doing so now we have injury disagreements about all that but will this assume that arguing do for now that's not a total question do you say well if you're not allowed to go there we can figure out whether you  public that makes the risk of corona virus infection too high so we don't dispute that in any kind of trial we would put on evidence about how there is not a very high risk of errors infection how the defendants are taken very their complaint at least i think what they're saying is that the lack of curbside building again in combination with all of the other things they challenge will lead to too many people being of wind or the risk of prohibits being higher if there are that they bring their complaint duplicate little question doctrine because they necessarily require a federal judge to decide how much coronavirus risk is too much and to decide on the specific procedures the defendants will apparently  i think the defects are related to this case your honor i think so they certainly did not allege any kind of desire to go curbside or intention to do so and no ability but that kind of goes into how i think a reasonable reader of the complaint understands their claims on the merits as well because that isn't the injury they're complaining about at least it leads me to read their complaint that that is not the merits of their ringback claim either i think if we look at their prayer for relief for example honor it's clear that what they are seeking are affirmative injunctions for a federal district court to implement health and safety protocols to lower the risk of corona virus infection it's not about having an deciding whether defendants are taking appropriate steps his complaint specifically demands defendants institute appropriate safety measures at or away fifty again we believe in events are instituting appropriate safety measures that is access even if they're not saying you are they are not country only alleging that any identified voter listening county that will not have paper ballots and wants to use a paper ballot so  one of the individual plaintiffs has now dropped out of this case did not take an appeal from the dismissal but the other one if memory serves as not alleged that her county will not offer the paper ballots in that issue particularly desires pape as i replace complaint they have a generalized complaints that they think the state as a whole should have more paper ballots to reviews from the buyer's transmission but they don't have any kind of claim that individual voter must have a paper ballot but doesn't the claim about the mask i would contrast that with the claim about curbside voting anyone who's going to vote in person is going to confront a situation in which there is no obligation for the poll workers or other voters to wear masks which is in this environment why is that a political question that that kind of risk can't be considered by the court they won't know until they go vote but there's no obligation under the executive order or whatever the foundation for that is executive order so they write don't they go vote but there's no obligation they know that before they go vote there is no legal obligation to wear a vest inside the polling place and i guess we start off by saying it would be a very strange voting rights claim that required the state defendants to turn away voters at the door who weren't wearing masks and i think that time so i wouldn't dismiss it as too frivolous but keep going yes your honor i do understand why that state officials here would be very reluctant to at least turn away voters  mass i think it basically has to do with the same concern here are that we are constantly trying to recruit i say we in reality local officials are constantly trying to recruit more orders and i believe they pay the vast majority of them or wearing masks and to my knowledge there is nothing preventing local officials from having their poll workers wear masks it's simply the fact that the governor has not made it a crime to not wear masks that's the way these proclamations executive orders are enforced is that noncompliance with them is a criminal offense that could be prosecuted by a local d a for example and so you know the state officials have made its formation that they don't want t one of the reasons this claim is different then traditional it or somebody's claim is that they're talking about a burden imposed by a preexisting outside conditions and complain that the state hasn't done enough to  and the state cannot impose unreasonable burdens on protesting but if a texan were disinclined to just been a protest because of fear contracting the coronavirus perhaps from other protesters and that kind of thing that person wouldn't be able to haul state officials into federal court and say you haven't done enough to combat the coronavirus even though there st no right to protest and even those states can manage public parks a they get of the fundamental distinction between the burden imposed by the virus and does not enforce those rules even when the governor makes the rules is not the role in force made it for purposes of expertise you know as to standing your honor i believe that this case is this th president disagree with that conclusion but i don't think we need to reach that here because even resolving the ex parte youngish on the constitutional claims would go a long way to result in this case because if you are d a claim is not presented in the  marion junction motion and i see that my time has expired so unless the court has further questions i will s thank you your honor as much as mr thompson would prefer that he gets to characterize our complaint in fact we the plaintiffs in the st instance get to characterize it and the judge in the district court gets to implement it despite his claims we do specifically challenge with respect to our specific plaintiffs curbside voting ms torres would very much like to engage in curbside voting but she cannot because she does not have a physical disability members of your complaint make that allegation somewhere yes we do and it has but i'm making sure that's what you're saying that is actually in the complaint that she wants to vote that way you voting if they were permitted to those in missouri city which is within one of the counties that requires touch screen voting would like to avoid the touch screens these allegations are in our complaint and so taking allegations about general allegations in our complaint about the relief requested or about the dangers imposed by these and taking them in isolation from the specific challenges that we've made does not turn the case into an impermissible political question challenge nor does it deprive us of the standing that we specifically established with respect to each of the plaintiffs with respect to each of the claims i want to just respond a little bit to the discussion about masks because there was a lot of issues thrown around by my colleague on the other side hinting at potential reasons  why the state might not i want to require masks polling centers i don't think he settled on one so we're still unclear but the bottom line on that is that is not an issue that goes to just disability that is an issue that goes to whether the government can satisfy that they have a sufficient basis for the burden that unquestionably is imposed on voters that want to go to a voting place and not have to be confronted with people not wearing masks and we do not suggest that polling stations turn away people from voting who don't have masks they can provide not as some of the defendants guidance say that they have to do anyway with respect to infected  that you know no one they could go to curbside they could vote per side which the defendants already provide in the end they provided for people who are symptomatic but there's a nd answer to that the governor the defendant here already requires people to decision completely within the hands of the defendants they can't say we have no choice but to expose tens of thousands of texas voters or more to the virus because we're not willing to let people who don't want to wear a mask vote curbside that that and if they want to make that argument that's an argument to make in the district court on the merits of whether they have a substantial basis for the burden that they're imposing on voters it's not a basis to block us from even having the judicia consider our claims if i could your honour's briefly respond to the arguments on standing and sovereign immunity as i said earlier they run headlong into the texas democratic party decision the injury that we allege not amenable to suit on the executive order because this is a challenge to an exemption in the executive order he is the only possible defend it so to accept his argument would mean that no executive order of the governor that exclude certain people from its protections or certain places from its protections could never be challenged and that's not the law the governor is the appropriate defendant for that and in any event as my colleague acknowledge